                                                                        FILED
                                                                   Jan 20 2017, 5:52 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      James A. Edgar                                             Curtis T. Hill, Jr.
      J. Edgar Law Offices, Prof. Corp.                          Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Michael Gene Worden
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Christopher Johnston,                                      January 20, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A04-1603-CR-543
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Kurt Eisgruber,
      Appellee-Plaintiff.                                        Judge;
                                                                 The Honorable Steven J. Rubick,
                                                                 Magistrate
                                                                 Trial Court Cause No.
                                                                 49G01-1504-F5-12421



      May, Judge.


[1]   Christopher Johnston appeals the qualification of State’s expert called to discuss

      forensic analysis of social media records and digital trails, and the admission of




      Court of Appeals of Indiana | Opinion 49A04-1603-CR-543 | January 20, 2017               Page 1 of 10
      that expert’s opinion regarding the statistical probability of multiple Facebook

      accounts belonging to people other than Johnston. We affirm.



                                Facts and Procedural History
[2]   Johnston met the victim, D.K., in 2012. Johnston proceeded to contact D.K.

      via phone calls, texts, and social media until 2015. D.K. requested, on several

      occasions and by various means, that Johnston stop contacting her. He did not.

      On May 30, 2014, D.K. obtained a protective order against Johnston.


[3]   On February 7, 2015, Johnston was arrested after going to D.K.’s home. He

      claimed to not know D.K. Johnston was served with the protective order on

      his release from custody. On March 9, 2015, Johnston went to D.K.’s home.

      D.K. called the police, but they were unable to locate Johnston when they

      responded. On March 10, 2015, Johnston again went to D.K.’s home, and this

      time he was arrested.


[4]   On April 10, 2015, the State charged Johnston with Level 5 felony stalking 1 for

      going to D.K.’s residence in March 2015, Level 6 felony stalking 2 for going to

      D.K.’s residence in February 2015, and two counts of Class A misdemeanor

      invasion of privacy. 3 The State later amended these charges to add another




      1
          Ind. Code § 35-45-10-5 (2014).
      2
          Id.
      3
          Ind. Code § 35-46-1-15.1(1) (2014).


      Court of Appeals of Indiana | Opinion 49A04-1603-CR-543 | January 20, 2017   Page 2 of 10
      count of Level 5 felony stalking for texts and Facebook messages sent between

      April 2013 and July 2013, and of Level 6 felony stalking for Facebook messages

      sent between February 2014 and May 2014.


[5]   Detectives at the Indianapolis Metropolitan Police Department (“IMPD”)

      analyzed D.K.’s cell phone messages and Facebook account. IMPD officers

      also analyzed the Facebook accounts alleged to be owned by Johnston under

      several aliases. The State presented Sergeant Steven Schafer of the IMPD

      Computer and Digital Forensic Unit to testify as an expert in forensic analysis

      of social media records and digital trails. Johnston objected to Sergeant

      Schafer’s qualifications as an expert able “to render an opinion as to how any of

      these Facebook records may or may not be linked together [or] traced back to

      [Johnston].” 4 (Tr. at 182-83.) The trial court overruled his objection.


[6]   Sergeant Schafer explained the importance of “cookies” and internet protocol

      (IP) addresses. Cookies are “basically something that companies and internet

      companies will place. It generally gets placed back in a device such as a

      computer or a phone.” (Id. at 200-201.) Such cookies are “a marker of sorts

      that’s unique to a particular device.” (Id. at 201.) If multiple usernames have

      the same cookie associated with them, “[the users] were using the same

      device.” (Id. at 202.) An IP address is a “doorway that any device uses to




      4
          Johnston did concede Sergeant Schafer was qualified to testify as to the meaning of computer terminology.


      Court of Appeals of Indiana | Opinion 49A04-1603-CR-543 | January 20, 2017                        Page 3 of 10
      access the physical internet.” (Id.) Multiple users with the same IP address

      “have to be using the same router or home.” (Id. at 203.)


[7]   Sergeant Schafer testified there were multiple Facebook accounts believed to be

      Johnston’s alias accounts, and those accounts were registered under the names:

      “James Jordan,” (Ex. 24, p. 1), “Chris Stark,” (Ex. 25, p. 1), “Sam Hesh,” (Ex.

      26, p. 1), “Chris Crown,” (Ex. 27, p. 1), and “Chris Stone,” (Ex. 28, p. 1).

      Each of those accounts was affiliated with internet cookies that were attached

      to the same device, and all of the accounts had accessed the internet by the

      same IP address. During re-direct examination, when the State asked Sergeant

      Schafer about the likelihood of multiple people using the same device and same

      IP address to contact D.K. with messages of a similar tone, he said it was less

      likely than “being struck by lightning while hitting the super lotto and being

      bitten by a polar bear at the same time.” (Tr. at 225) (hereinafter, “Polar Bear

      Analogy”). Johnston did not object to that statement. The trial court found

      Johnston guilty on all counts but, due to double jeopardy concerns, did not

      enter judgment on the invasion of privacy counts.



                                  Discussion and Decision
                                             Expert Qualification

[8]   Johnston claims Sergeant Schafer was not qualified to give his opinion as an

      expert. A witness is “qualified as an expert by knowledge, skill, experience,

      training, or education,” to testify in the form of an opinion “if scientific,

      technical or specialized knowledge will assist the trier-of-fact to understand the

      Court of Appeals of Indiana | Opinion 49A04-1603-CR-543 | January 20, 2017   Page 4 of 10
       evidence or determine a fact in issue.” Ind. Evidence Rule 702(a). To qualify

       as an expert, the subject of a “witness’s testimony must be distinctly related to

       some scientific field, business, or profession beyond the knowledge of the

       average person, and the witness must have sufficient skill, knowledge, or

       experience in that area so that the opinion will aid the trier of fact.” Hastings v.

       State, 58 N.E.3d 919, 924 (Ind. Ct. App. 2016).


[9]    The trial court has broad discretion when qualifying an expert, and we review

       its decision only for an abuse of discretion. INS Investigations Bureau, Inc. v. Lee,

       709 N.E.2d 736, 744 (Ind. Ct. App. 1999), trans. denied. When reviewing a

       decision under an abuse of discretion standard, we will affirm if there is any

       evidence to support the decision. Sparkman v. State, 722 N.E.2d 1259, 1262

       (Ind. Ct. App. 2000). “It is within the trial court’s sound discretion to decide

       whether a person qualifies as an expert witness. On appeal, we will not

       substitute our judgment for that of the trial court.” Burnett v. State, 815 N.E.2d

       201, 204 (Ind. Ct. App. 2004) (internal citations omitted), reh’g denied.


[10]   Johnston argues the trial court abused its discretion in qualifying Sergeant

       Schafer as an expert in “a field of study which is highly technical and therefore

       susceptible to misunderstanding, confusion, and error,” (Appellant’s Br. at 16),

       when Sergeant Schafer did not have the requisite training in statistics to form a

       valid opinion about the probability of an event. However, the State did not

       present, and the trial court did not declare, Sergeant Schafer to be an expert in

       statistics. Rather, he was qualified as an expert in forensic analysis of social

       media records and digital trails.

       Court of Appeals of Indiana | Opinion 49A04-1603-CR-543 | January 20, 2017   Page 5 of 10
[11]   Sergeant Schafer testified he had gone to training with the

               Secret Service down in Alabama on internet investigations . . .
               classes that were put on by Lieutenant Charles Cohen, who is the
               commander of the Indiana State Police cyber crimes unit . . .
               several just small classes . . . a great deal of online training
               through the internet [sic] training through the Internet Crimes
               Against Children . . . as well as approximately three to five years
               of on-the-job training.


       (Tr. at 179.) He also gave extensive examples of the work he has done with

       social media accounts, the analysis undertaken with that information, and how

       users of social media are identified. He estimated he had requested records and

       analyzed them in “easily 300-plus” cases. (Id. at 181.) Thus, we cannot say the

       court abused its discretion in qualifying Sergeant Schafer as an expert capable of

       helping the court understand the evidence regarding internet technology and

       social media. See Armstrong v. State, 22 N.E.3d 629, 642 (Ind. Ct. App. 2014)

       (officer’s training and experience qualified him to testify as an expert on gang

       activity), trans. denied.


                                   Admission of the Polar Bear Analogy

[12]   Johnston also argues the trial court erred by allowing Sergeant Schafer to give

       an opinion on statistical probability. Specifically, Johnston challenges Sergeant

       Schafer’s testimony that multiple people using the same device and same IP

       address to contact D.K. with Facebook messages of a similar tone was less

       likely than “being struck by lightning while hitting the super lotto and being




       Court of Appeals of Indiana | Opinion 49A04-1603-CR-543 | January 20, 2017   Page 6 of 10
bitten by a polar bear at the same time.” 5 (Tr. at 225.) The State gave Sergeant

Schafer an opportunity to explain that analogy:

         State:          Can you describe that physically, what something
                  like that would look like? Not to be struck by lightning
                  and being bit by a polar bear, but you know what I’m
                  talking about.


         Sergeant Schafer: You’d have to have somebody for - like the
               IP address as well as the cookie to have the same phone
               and to access Facebook on that phone and then to find
               somebody, hand them the phone, and then that person
               would have to use that phone to access Facebook, create
               an account, and then so on and so forth through, at least in
               this scenario right here, five different people sitting in front
               of me, all - and the primary link between all five of them as
               shown in the pages is messages all being sent to one end
               person or one end person, the [D.K.] account.


                  So again, statistically speaking, I mean, that’s, you know,
                  the odds of that, you know, everybody using the same
                  exact device with the exact same IP address over the same
                  time period just, I mean, buy a lottery ticket. You’ve got a
                  better chance.


(Id. at 225) (errors in original).




5
 Johnston complains the Polar Bear Analogy was not based on “reliable scientific principles.” (Appellant’s
Br. at 21.) As evidence thereof, Johnston points to the fact that Sergeant Schafer did not use the “typical and
artful language of the field.” (Id. at 18.) However, as the State notes, Sergeant Schafer was not attempting to
express the result of a formal statistical analysis but rather to provide an analogy to help the trial judge
understand how unlikely it was for more than one person to have sent the messages at issue.

Court of Appeals of Indiana | Opinion 49A04-1603-CR-543 | January 20, 2017                         Page 7 of 10
[13]   Admission of opinion testimony is within the discretion of the trial court.

       Julian v. State, 811 N.E.2d 392, 399 (Ind. Ct. App. 2004), trans. denied. The

       court must be “satisfied that the expert testimony rests upon reliable scientific

       principles” in order to admit the testimony. Ind. R. Evid. 702(b). A decision to

       admit evidence will not be reversed absent a showing of manifest abuse of the

       trial court’s discretion resulting in the denial of a fair trial. Davis v. State, 791

       N.E.2d 266, 268 (Ind. Ct. App. 2003), reh’g denied, trans. denied. In determining

       the admissibility of evidence, we consider only the evidence in favor of the trial

       court’s ruling and unrefuted evidence in the defendant’s favor. Id.


[14]   However, Johnston did not object at trial to the Polar Bear Analogy, so he now

       claims fundamental error that denied him a fair trial. Appellate courts may, on

       rare occasions, resort to the fundamental error exception to address on direct

       appeal an otherwise procedurally defaulted claim. Jewell v. State, 887 N.E.2d

       939, 942 (Ind. 2008). But fundamental error is extremely narrow and available

       only when the record reveals a clearly blatant violation of basic and elementary

       principles, where the harm or potential for harm cannot be denied, and when

       the violation is so prejudicial to the rights of the defendant as to make a fair trial

       impossible. Id. Johnston cannot meet that standard.


[15]   First, Johnston was tried to the bench, not a jury. As such, we give due

       consideration to the presumption of judicial-temperance. See Coleman v. State,

       558 N.E.2d 1059, 1062 (Ind. 1990) (during a bench trial, we presume the “court

       renders its decisions solely on the basis of relevant and probative evidence”),

       reh’g denied. To rebut this presumption, Johnston would need to demonstrate

       Court of Appeals of Indiana | Opinion 49A04-1603-CR-543 | January 20, 2017     Page 8 of 10
       prejudice, but Johnston did not argue the trial court relied on Sergeant Schafer’s

       statement. See Hinesley v. State, 999 N.E.2d 975, 988 (Ind. Ct. App. 2013) (if

       trial court does not rely on disputed evidence, the appellant “fail[s] to rebut the

       judicial-temperance presumption”), reh’g denied, trans. denied.


[16]   Second, the Polar Bear Analogy is relevant to only one of Johnston’s four

       stalking convictions, 6 and other evidence was sufficient to support that

       conviction. Sergeant Schafer testified all six Facebook user names – “Cino

       Cassie” and the five others believed to belong to Johnston – shared “common

       IP addresses.” (Tr. at 214.) He testified to the “commonalities” of “several

       different cookies that were . . . used by different accounts.” (Id.) When asked

       about common cookies associated with different accounts, he explained that

       “based on [his] training and experience,” it indicates the “users used the same

       device.” (Id.) For example, in Exhibit 25, pages 6, 7, and 8, the Facebook

       printout shows “an example of various users associated with a particular

       machine[.]” (Id. at 215.)


[17]   The State asked Sergeant Schafer’s opinion whether, definitively, these

       messages were all sent to D.K. by the same person. Johnston objected, and the

       trial court prohibited Sergeant Schafer from answering that question. Instead,




       6
         The first and second counts alleged Johnston had gone to D.K.’s home in February 2015 and March 2015.
       The third count is supported by text messages from Johnston’s phone to D.K. and Facebook messages to
       D.K.’s Facebook account from the “Cino Cassie” Facebook account that Johnston concedes is his. (See Tr.
       at 28 wherein Johnston’s counsel agrees the “Cino Cassie” user name is Johnston’s but does not agree as to
       the other user names.) Only the fourth count of stalking is based solely on Facebook messages sent from
       Facebook user names that Johnston asserts are not his.

       Court of Appeals of Indiana | Opinion 49A04-1603-CR-543 | January 20, 2017                     Page 9 of 10
       the trial court was left to draw its own conclusions from the evidence, and the

       record suggests the trial court took the time to do just that. (See Tr. at 275)

       (When announcing its ruling, the trial court stated: “Over the weekend, I

       reviewed all of the text messages and all of the Facebook messages that were

       submitted.”). Given the evidence in the record, the presumption of judicial-

       temperance, and the fact Johnston did not present any evidence demonstrating

       prejudice, Johnston has not demonstrated fundamental error in the admission

       of Sergeant Schafer’s Polar Bear Analogy. See, e.g., Newbill v. State, 884 N.E.2d

       383, 398 (Ind. Ct. App. 2008) (no abuse of discretion in the admission if

       fundamental error not proven), trans. denied.



                                                Conclusion
[18]   The trial court did not abuse its discretion in qualifying Sergeant Schafer as an

       expert, and Johnston has not demonstrated fundamental error in the admission

       of Sergeant Schafer’s Polar Bear Analogy. Accordingly, we affirm Johnston’s

       convictions.


[19]   Affirmed.


       Kirsch, J., and Crone, J., concur.




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