EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, August 17, 2023

Court Finds Husband "Tagging" His Wife on Facebook Posts Was a "Communication," Violating Her Protective Order Against Him

Does "tagging" someone on Facebook constitute a communication for purposes of a protective order? This was the question of first impression addressed by the Court of Appeals of Texas in its recent opinion in Boes v. State, 2023 WL 5242592 (Tex. App. 2023),

In Boes, Barry Boes II was arrested for assault family violence. His wife, Dr. Sheila Boes, thereafter successfully applied for an emergency protective order against him.

communicating directly with a family member of the family or household or with the person(s) protected under the Order in a threatening or harassing manner; communicating a threat through any person to a member of the family or household or to the person(s) protected under the Order;

communicating in any manner with a person protected under the Order or a member of the family or household of a person protected under the Order, accept through the party's attorney or a person appointed by the court, because the Court finds good cause exists.

The defendant then

posted on Facebook on at least three occasions and “tagged” Dr. Boes. No concerns were expressed regarding the first few posts; however, after a subsequent post, Dr. Boes's divorce attorney notified law enforcement that Appellant had been communicating with Dr. Boes by tagging her on Facebook. The posts were not threatening but Dr. Boes testified they embarrassed her.

After the defendant was convicted of violating the protective order, he appealed, with the appellate court affirming, ruling as follows:

The crucial inquiry to resolve is whether those Facebook tags constitute “communications” in violation of the protective order. We hold under the facts presented herein they do.

“Communication” is not defined in any of the statutes applicable here. When a word in a statute is not defined, it is ordinarily given its plain meaning unless the statute clearly shows the word is used in some other sense....“Communication” is defined as “a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior”; an “exchange of information”; “information communicated”; “information transmitted or conveyed”; a verbal or written message.” See merriam-webster.com/dictionary/communication.

The evidence showed neither Appellant nor Dr. Boes had “unfriended” each other. Detective Terreo sponsored State's Exhibit 8, an illustration of Facebook's Help Center. It provides an explanation of “tagging” as creating a link to a particular Facebook friend who must be selected to receive notification of a tag.

During the interview with Appellant, Detective Terreo informed him he had violated the protective order and was going to be arrested. Appellant, caught by surprise at the news, told the detective he had not intended to communicate or contact Dr. Boes through his posts. He claimed not to know the specifics of tagging. But he acknowledged every post on his Facebook page could be viewed in the timelines of his Facebook friends. After Detective Terreo explained his understanding of the process of tagging, Appellant acquiesced his postings could have been interpreted as being directed toward Dr. Boes. During cross-examination, Detective Terreo testified, without objection, he did not find Appellant's denial of communicating through Facebook tagging credible. Dr. Boes testified, without objection, she believed the posts were communications and as noted earlier—intended to embarrass and shame her. The posts admitted into evidence demonstrate Appellant's transmission or conveyance of information or a written message sufficient to constitute “communications.” Conflicts in the evidence, if any, were ultimately resolved against Appellant and we must defer to the jury's resolution of those conflicts in favor of the prosecution. We find the evidence was sufficient to support Appellant's conviction for violation of a protective order.

-CM

https://lawprofessors.typepad.com/evidenceprof/2023/08/does-tagging-someone-on-facebook-constitute-a-communication-for-purposes-of-a-protective-order-this-was-the-question-of-firs.html

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Comments

I am that Barry Boes. More interesting to me is that a juror found me guilty "because he didn't testify, and on Law and Order everyone who doesn't testify is guilty". This was found in a juror survey the prosecutor's office sent out.

The juror lied under oath that they wouldn't use a lack of testimony to find guilt, violating my constitutional right to a fair trial. The prosecutor argued that 603(b) disallowed consideration of the juror's misrepresentation during jury selection and the judge and appeal board both denied a new trial while stating that they agreed the juror's misconduct warranted one but the evidence of misconduct was inadmissible.

Posted by: Barry Boes | Nov 10, 2023 2:39:15 PM

Want the whole story? I'm Barry Boes. I can provide the court and deposition transcripts that tell an interesting story, including things like a juror finding me guilty because she "watches Law and Order, and on Law and Order everyone who doesn't testify is guilty", the fact that divorce attorneys adamantly insist that their clients, even those subject to protective orders "not unfriend their spouse because it would look bad in child support hearings", and the fact that facebook automatically tagged Sheila Boes in the posts without my consent or acknowledgment when I autocompleted her name when writing about her.

Posted by: Barry Boes | Nov 13, 2023 12:25:22 PM

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