MySpace Profile and Photo Evidence Used to Support Conviction for “Participation in Criminal Gang Activity” — State v. McCraney

[Post by Venkat]

State v. McCraney, 2010-Ohio-6128 (Ohio Ct. App.; Dec. 15, 2010)

There has been a proliferation of MySpace (and more recently, Facebook) cases in the criminal context. Most of these cases involve evidentiary issues where the prosecution seeks to use profile evidence to show motive, absence of alibi (etc.), but a recent Ohio case is remarkable in that the MySpace evidence was used to support a conviction for “participation in criminal gang activity.”

The defendants’ convictions for robbery and participation in “criminal gang activity” stemmed from their alleged participation in two incidents at a gas station. At one incident, they harassed a patron and “asked him for money” (but didn’t receive any) and in another incident, they attacked another patron and stole beer that the patron was buying for a party. One defendant was found guilty of all charges, but the other was found not guilty of one of the robbery charges.

Two officers testified as experts regarding the nature of the local gangs, the fact that the “the focus of criminal gangs is to make money.” One officer also testified that gangs have increasingly been using social networking websites:

The trend that we’ve been noticing and beginning to use is the fact that a lot of our suspected gang members in their photos and in some of the conversations they have will talk about criminal gang activity. There will be photos of individuals throwing up gang hand signs, photos of individuals doing other kinds of illegal activities, such as drugs, guns. And then there’s also the kind of representing type of photos where they’ll have large sums of cash, wear a lot of jewelry, kind of status-type things.

The officer also testified that gang colors, clothing, and affiliation with other gang members were all hallmarks of gang activity. The Officers also testified regarding photographs of the defendants – some of which were allegedly taken from defendants’ accounts:

Officer Criss . . . noted [defendants] were friends on MySpace. Mr. Owens was pictured in two photographs on Mr. McCraney’s MySpace page. In one of the photographs, Mr. Owens was wearing all black and he was standing with several other people who were wearing all black, or black and red. Further, several of the people in the photograph were displaying gang hand signs. The other photograph from Mr. McCraney’s page depicted [defendants, along with] a known gang member.

Officer Criss also discussed photographs taken from Mr. Owens’ own MySpace page. One of the photographs depicted Mr. Owens in a red hat and a fur coat. Officer Criss said this was significant because red is a gang color and the fur coat is a status symbol in the gang community. In addition, Mr. Owens’ gold teeth were also alluded to as being a status symbol. Another photograph from Mr. Owens’ MySpace page depicted Mr. Owens holding a large sum of cash and wearing red and black clothing. Further, dollar signs are superimposed all over the

photograph. Again Officer Criss stated that red and black are associated with the Bloodline gangs and the money symbols and the display of a large amount of cash represented that Mr. Owens was able to get large sums of money.

One of the officers also testified regarding a tribute one of the defendants had on his MySpace page to a “fallen gang member,” and that offering this type of a tribute was “common practice among fellow gang members.” Finally, one of the officers testified that he had personal knowledge of individuals depicted in the photographs and they were “known gang members.”

The majority finds this evidence (when viewed in the light most favorable to the prosecution) sufficient to sustain the conviction. One of the judges dissented because he viewed the evidence as insufficient to sustain the conviction for participation in criminal gang activity for one of the defendants:

Essentially, the majority’s decision allows one to conclude that someone actively participates in a criminal gang if that person has committed theft or drug crimes in the past, wears one color associated with a gang, and associates with people who are in a gang or who make gang hand signs. I also find it troubling that the majority suggests that despite the lack of evidence concerning the significant indicators of participation in gang activity, the gap in the evidence is satisfied simply because an officer stated that he believed Mr. Owens actively participated in a criminal gang.

Unlike many of the other cases which involve evidentiary issues where MySpace evidence was used to buttress the conviction, in this case, at least with respect to one of the charges, the bulk of the evidence of the alleged criminal activity itself came from MySpace.