MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Mar 27 2020, 8:54 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Talisha R. Griffin                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Myriam Serrano
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Justin Ross Tomlinson,                                   March 27, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2640
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff.                                      Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1909-F6-37330



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020               Page 1 of 12
                                             Case Summary
[1]   Justin Tomlinson (“Tomlinson”) appeals his conviction of invasion of privacy,

      enhanced to a Level 6 felony.1 We affirm.



                                                   Issues
[2]   Tomlinson raises the following two restated issues on appeal:


                1.       Whether the trial court abused its discretion when it
                         denied Tomlinson’s request to admit two exhibits into
                         evidence.


                2.       Whether the State presented sufficient evidence to support
                         his conviction.


                               Facts and Procedural History
[3]   In September of 2019, Tomlinson was charged with domestic battery and

      incarcerated in the Marion County Jail. On September 20, 2019, a no contact

      order was issued prohibiting Tomlinson from having contact with his wife,

      Tracy Tomlinson (“Tracy”). On September 22, at 8:56 a.m., Tomlinson used

      his inmate pin number to make a telephone call from the Marion County Jail.

      That call was recorded. On September 23, the no contact order was lifted. At

      4:45 p.m. on September 23, Tomlinson again used his inmate pin number to




      1
          Ind. Code § 35-36-1-15.1(a)(11).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020   Page 2 of 12
      make a telephone call to the same telephone number he had called the day

      before. The September 23 phone call was also recorded.


[4]   Based on the telephone call Tomlinson made on September 22, on September

      23 the State charged Tomlinson with invasion of privacy, as a Class A

      misdemeanor, and also filed an Information alleging that Tomlinson had a

      previous unrelated conviction that would elevate the misdemeanor to a Level 6

      felony.


[5]   On October 10, the court held a bench trial. Tracy testified that she did not

      have a telephone conversation with Tomlinson on September 22. She testified

      that she was at work from 6:22 a.m. to 5:00 p.m. on September 22 and her

      employer does not allow its employees to have their cellular telephones inside

      the workplace. During Tracy’s testimony, Tomlinson attempted to admit into

      evidence three documents—Exhibits A, B, and C. Tracy testified that

      Defendant’s Exhibit A was an employment record from Amazon that showed

      her “hourly rate, [her] work days[,] and[,] for September 22nd[, her] clock-in at

      the start of shift, [her] clock-out for lunch, [her] return from lunch, as well as

      [her] end of shift, and it is notarized and signed by Sherita Edge, [the] head HR

      lady.” Tr. at 8. Tracy testified that Defendant’s Exhibit B was “a print[] out

      from the Amazon computer at work” showing her “clock-in and clock-out” on

      September 22, 2019. Id. at 8-9. And Tracy testified that Defendant’s Exhibit C

      was Amazon’s “phone policy stating that [its employees] cannot have any

      electronic devices whatsoever inside the building.” Id. at 9. The State objected

      to the admission of Defendant’s Exhibits A through C on the grounds that they

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020   Page 3 of 12
      lacked a proper foundation. The trial court sustained the State’s objection as to

      Exhibits A and B, but overruled its objection to Exhibit C, which was admitted

      into evidence.


[6]   Per stipulation of the parties, the State entered into evidence and played for the

      court its Exhibit 2, which consisted of the audio recordings of Tomlinson’s

      telephone conversations from jail on September 22 and 23. In the September 22

      conversation, which was two minutes long, Tomlinson refers to the person he

      called as “T.T.” Ex. at 16. In the September 23 conversation, Tomlinson

      repeatedly refers to the person he called as “Tracy” or “Trace.” Id.


[7]   Two police officers also testified at the bench trial. Indianapolis Metropolitan

      Police Department (“IMPD”) Detective Steven Renzulli (“Det. Renzulli”)

      testified that he was familiar with Tracy’s voice, having spoken with her before

      for over three minutes and having reviewed the recording of that prior

      conversation. He testified that, on September 23, he listened “multiple times”

      to the recordings of his prior conversation with Tracy and the recordings in

      State’s Exhibit 2. Tr. at 16. He compared those recordings and recognized

      Tracy’s voice as the person Tomlinson was speaking with in each of the

      recorded telephone conversations in State’s Exhibit 2. Det. Renzulli also

      testified that Tomlinson had called the same telephone number on each date,

      and that the number he called was the telephone number the IMPD had in their

      records for Tracy. IMPD Officer Jesse Darling (“Officer Darling”) testified that

      he also was familiar with Tracy and her voice from having listened to her speak

      with a medic and a reporting officer on September 9, 2019, for a total of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020   Page 4 of 12
       approximately ten to fifteen minutes. Officer Darling testified he had listened

       to the recordings of the two telephone conversations in State’s Exhibit 2 and

       that it was Tracy’s voice on each of those recordings. He testified that he was

       “certain” Tomlinson’s September 22 telephone call was to Tracy. Tr. at 21.


[8]    The trial court found Tomlinson guilty of invasion of privacy, as a Class A

       misdemeanor. It also found that he had a prior conviction and, therefore,

       sufficient evidence to support the elevation of the crime to a Level 6 felony.

       The court sentenced Tomlinson to a term of 180 days, with 136 days

       suspended. Tomlinson had a credit of forty-four days already served. This

       appeal ensued.



                                 Discussion and Decision
                                       Exclusion of Exhibits
[9]    Tomlinson challenges the trial court’s decision to exclude from evidence his

       proffered Exhibits A and B. We review the admission or exclusion of evidence

       for an abuse of discretion, and we will reverse the trial court’s decision only

       when its action is clearly against the logic and effect of the facts and

       circumstances before it. E.g., Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct.

       App. 2007).


[10]   Tomlinson attempted to introduce Exhibits A and B through Tracy—i.e., the

       sponsoring witness—who testified that the documents in each of those exhibits

       were records from her employer, Amazon. Under Indiana Rule of Evidence

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020   Page 5 of 12
       803(6), a business record may be admissible as an exception to the rule against

       hearsay if:


               (A) the record was made at or near the time by—or from
               information transmitted by—someone with knowledge;


               (B) the record was kept in the course of a regularly conducted
               activity of a business, organization, occupation, or calling,
               whether or not for profit;


               (C) making the record was a regular practice of that activity;


               (D) all these conditions are shown by the testimony of the
               custodian or another qualified witness, or by a certification that
               complies with Rule 902(9) or (10) or with a statute permitting
               certification; and


               (E) neither the source of information nor the method or
               circumstances of preparation indicate a lack of trustworthiness.


[11]   To properly lay a foundation for the admission of a business record,


               the proponent of the exhibit may call a witness who has a
               functional understanding of the record-keeping process of the
               business with respect to the specific entry, transaction, or
               declaration contained in the document. Rolland v. State, 851
               N.E.2d 1042, 1045 (Ind. Ct. App. 2006). The sponsor of an
               exhibit need not have personally made it, filed it, or have
               firsthand knowledge of the transaction represented by it; rather,
               the sponsor need only show that the exhibit was part of certain
               records kept in the routine course of business and placed in the
               records by one who was authorized to do so and who had
               personal knowledge of the transaction represented at the time of
               entry. Embrey v. State, 989 N.E.2d 1260, 1264–65 (Ind. Ct. App.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020   Page 6 of 12
                2013); see also Sandleben v. State, 22 N.E.3d 782, 795 (Ind. Ct.
                App. 2014) (“[A] sponsor must still testify about how the record
                was made, who filed it, and that the person who filed it was both
                authorized to do so and had personal knowledge of the
                transaction.”), trans. denied.


       Williams v. State, 64 N.E.3d 221, 225 (Ind. Ct. App. 2016).


[12]   Tracy testified to none of the above regarding Defendant’s Exhibits A and B.

       Regarding Exhibit A, she testified only that it was “an employment record from

       Amazon” which showed her hourly rate, work days, and the times at which she

       clocked in and out for her shift and her lunch on September 22, 2019. Tr. at 8.

       She noted that the document was “notarized and signed by Sherita Edge, our

       head HR lady.” Id. Regarding Exhibit B, Tracy testified only that it was

       “printed out from the Amazon computer at work” and showed the times at

       which she clocked in and out for her shift and her lunch on September 22, 2019.

       Id. at 9.2 Tracy provided no testimony regarding how the records were made,

       who filed them, that the person who filed them was authorized to do so and

       had personal knowledge of the transactions, and that the records were kept in

       the routine course of business. Therefore, the trial court did not abuse its

       discretion when it refused to admit Defendants’ Exhibits A and B into evidence.




       2
         In response to the court’s additional questioning, Tracy also stated as to Exhibit B, “I printed [it] out at the
       computer at work, but I guess it wasn’t uhm updated at the time, so HR got that more accurate and official
       from their system. I notice there’s like a two (2) minute differential or something like that.” Id. at 9-10.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020                        Page 7 of 12
[13]   Moreover, even if the court had erred in denial the admission of the exhibits,

       that error was harmless.


               When evidence is erroneously excluded, reversal is only required
               if the error relates to a material matter or substantially affects the
               rights of the parties. [Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct.
               App. 2004), trans. denied.] In determining whether an error is
               harmless, we “must assess the probable impact of that evidence
               upon the jury.” Swingley v. State, 739 N.E.2d 132, 134 (Ind.
               2000). Where the wrongfully excluded testimony is merely
               cumulative of other evidence presented, its exclusion is harmless
               error. Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind. 1998), reh’g
               denied.


       Hill v. State, 51 N.E.3d 446, 450 (Ind Ct. App. 2016).


[14]   Here, Defendant’s Exhibits A and B were cumulative of Tracy’s relevant

       testimony; that is, she testified as to the times she was at work on September 22,

       2019.3 Therefore, any error as to the exclusion of those exhibits was harmless.


                                   Sufficiency of the Evidence
[15]   Tomlinson challenges the sufficiency of the evidence to support his conviction.

       Our standard of review of the sufficiency of the evidence is well-settled.


               When an appellate court reviews the sufficiency of the evidence
               needed to support a criminal conviction, it neither reweighs
               evidence nor judges the credibility of witnesses. Bailey v. State,
               907 N.E.2d 1003, 1005 (Ind. 2009). The appellate court only



       3
         Exhibit A also included Tracy’s salary. However, that information was not relevant and the exhibit was
       not offered for the purposes of proving her salary.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020                 Page 8 of 12
               considers “the evidence supporting the judgment and any
               reasonable inferences that can be drawn from such evidence.” Id.
               (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008)). A
               conviction will be affirmed if there is substantial evidence of
               probative value supporting each element of the offense such that
               a reasonable trier of fact could have found the defendant guilty
               beyond a reasonable doubt. Bailey, 907 N.E.2d at 1005. A
               [determination] of guilt may be based upon an inference if
               reasonably drawn from the evidence. See Drane v. State, 867
               N.E.2d 144, 147 (Ind. 2007).


       Tin Thang v. State, 10 N.E.3d 1256, 1258 (Ind. 2014).


[16]   Thus, it is not necessary that the evidence


               overcome every reasonable hypothesis of innocence; … Drane v.
               State, 867 N.E.2d 144 (Ind. 2007). Accordingly, the question on
               appeal is whether the inferences supporting the [judgment] were
               reasonable, not whether other, “more reasonable” inferences
               could have been drawn. Thompson v. State, 804 N.E.2d 1146,
               1150 (Ind. 2004). Because reaching alternative inferences is the
               function of the trier of fact, we may not reverse a conviction
               merely because a different inference might plausibly be drawn
               from the evidence. [Id.].


       Jones v. State, 22 N.E.3d 877, 879 (Ind. Ct. App. 2014).


[17]   To support Tomlinson’s conviction of invasion of privacy, as a Class A

       misdemeanor, the State was required to show that he “knowingly or

       intentionally violated an order issued under Indiana Code Section 35-33-8-3.2.”

       I.C. § 35-46-1-15.1(a)(11). An order issued under Indiana Code Section 35-33-

       8-3.2(a)(4) is one which requires the defendant to refrain from any direct or


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020   Page 9 of 12
       indirect contact with an individual. The invasion of privacy offense is elevated

       to a Level 6 felony “if the person has a prior unrelated conviction for an

       offense.” I.C. § 35-46-1-15.1(a). Tomlinson does not dispute that he had a prior

       unrelated conviction or that a no contact order as to Tracy was in effect on

       September 22, 2019. Rather, he contends only that the evidence was

       insufficient to show that he spoke with Tracy in his September 22 telephone call

       from the jail.


[18]   The State presented testimonial and audio evidence that Tomlinson called

       Tracy on September 22, in violation of the no contact order. The audio

       evidence consisted of the two recordings of Tomlinson’s telephone calls from

       jail on September 22 and 23, which were played for the court. Two police

       officers testified that they were familiar with Tracy’s voice and that the female

       voice on the audio recording of the September 22 telephone conversation was

       hers. Det. Renzulli also testified that Tomlinson called the same telephone

       number on both dates and that number was the telephone number the IMPD

       had in their records for Tracy. That was sufficient evidence to support

       Tomlinson’s conviction.


[19]   Tomlinson contends that we should listen to the two audio recordings and

       decide for ourselves whether it is the same female voice on both recordings.

       The State asserts that to do so would be to reweigh the evidence in

       contradiction to our deferential standard of review. However, as our Supreme

       Court has pointed out, the act of “reviewing video evidence” does not constitute

       impermissible appellate reweighting. Robinson v. State, 5 N.E.3d 362, 366 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020   Page 10 of 12
       20140 (emphasis original). Even more recently, the Court reiterated our

       deferential standard of review in appeals relating to sufficiency of the evidence

       but articulated and applied a “narrow failsafe” standard of review regarding

       video evidence:


               We hold that Indiana appellate courts reviewing the sufficiency
               of evidence must apply the same deferential standard of review to
               video evidence as to other evidence, unless the video evidence
               indisputably contradicts the trial court’s findings. A video
               indisputably contradicts the trial court’s findings when no
               reasonable person can view the video and come to a different
               conclusion.


       Love v. State, 73 N.E.3d 693, 695 (Ind. 2017). The Court cautioned that, where

       the video is “subject to different interpretations, we defer to the trial court’s

       interpretation.” Id. at 699-700.


[20]   The reasoning of Love applies equally to evidence in the form of audio

       recordings; indeed, Love noted that, when determining whether video evidence

       is undisputable, one aspect the court must assess is the audio. Id. at 699.4

       However, the instant case is not one in which the audio evidence indisputably

       contradicts the trial court’s finding, i.e., that Tomlinson’s September 22

       telephone call was to Tracy. The audio recordings of the September 22 and 23




       4
         The State contends that Love’s holding is inapplicable because the audio recordings were not offered to
       prove what events took place but only for purposes of voice identification. That may make the recordings
       admissible for purposes of hearsay, but it says nothing about the standard of review that should apply.
       Moreover, while the September 23 recording was offered solely for purposes of comparison, the September
       22 recording was also evidence that Tomlinson violated the no contact order.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020                Page 11 of 12
       telephone calls do not irrefutably contradict the testimony of the police officers

       that the voice on each recording is Tracy’s voice or the other evidence that the

       telephone number Tomlinson called on each date was Tracy’s number. This is

       not a situation where no reasonable person could listen to the audio evidence

       and think anything other than the female voice on the September 22 recording

       is not Tracy’s voice. Instead, we have conflicting testimony of Tracy and the

       police officers and two audio recordings that do not serve to irrefutably

       contradict the police testimony. Therefore, we defer to the trial court’s factual

       determination regarding the weight of the evidence and credibility of the

       witnesses. Id. at 700.



                                               Conclusion
[21]   The trial court did not err in excluding Defendant’s Exhibits A and B from

       evidence as Tomlinson failed to lay a proper foundation for their admission.

       And the State presented sufficient evidence to support Tomlinson’s conviction.


[22]   Affirmed.


       Crone, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2640 | March 27, 2020   Page 12 of 12
