      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                Jun 15 2020, 5:51 am

      court except for the purpose of establishing                                    CLERK
                                                                                Indiana Supreme Court
      the defense of res judicata, collateral                                      Court of Appeals
                                                                                     and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Sean C. Mullins                                          Myriam Serrano
      Appellate Public Defender                                Deputy Attorney General
      Crown Point, Indiana                                     Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Freddie Allen Forsythe, Jr.,                             June 15, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-2956
              v.                                               Appeal from the Lake Superior
                                                               Court
      State of Indiana,                                        The Honorable Salvador Vasquez,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               45G01-1803-F5-25



      Najam, Judge.


                                       Statement of the Case
[1]   Freddie Allen Forsythe, Jr. appeals his convictions for possession of child

      pornography, as a Level 5 felony; possession of child pornography, as a Level 6


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020                     Page 1 of 10
      felony; and his adjudication as a repeat sexual offender following a jury trial.

      He presents two issues for our review, which we consolidate and restate as

      whether the trial court abused its discretion when it admitted evidence at trial.

      We affirm.


                                 Facts and Procedural History
[2]   On May 15, 2017, Indiana State Police Detective Tracy Kunstek received a tip

      from the National Center for Missing and Exploited Children that a Google

      account registered under Forsythe’s name had been used to obtain an image

      that depicted child pornography. After Detective Kunstek’s additional

      investigation revealed that Forsythe’s home address corresponded with the IP

      address associated with the tip, Detective Kunstek obtained a search warrant for

      the home. On December 7, Detective Kunstek and other officers executed the

      search warrant at Forsythe’s home that he shared with his mother, Jacy

      Frangello. Officers located several electronic devices, including three cell

      phones, which they took to forensic vehicles parked outside of the home.


[3]   Inside one of the forensic vehicles, Indiana State Police Sergeant Scott Krueger

      “triaged” an LG cell phone found in Forsythe’s house (“LG phone”). Tr. Vol.

      3 at 59. When Sergeant Krueger was unable to get the phone to turn on, he

      used “an extraction method” to get the data from the phone. Id. at 62.

      Sergeant Krueger found that the cell phone was linked to Forsythe’s Google

      and Facebook accounts, and he retrieved an internet search history from

      December 2016 that included the following terms: “Sweet Jasmina 10 years,”

      “Sweet Young Preteen Avery,” “Girls—little sweet 1,” “Girls—little sweet 5,”
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020   Page 2 of 10
      “sexy preteens,” “hot tweens,” and “pedophilia.” State’s Exs. 114A, 115A,

      117A, 121A, 123A. Sergeant Krueger also found several images depicting child

      pornography on the phone.


[4]   Indiana State Police Detective Alva Whited, who was working in another

      forensic vehicle outside Forsythe’s home, examined two ZTE cell phones found

      inside the home. Detective Whited was unable to extract any data from one of

      the phones but determined that the second ZTE phone belonged to Forsythe

      (“ZTE phone”). Detective Whited extracted data from that phone and found

      an internet search history from May 2017 that included the following terms:

      “8-15 naked,” “ultra young,” “3 to 14yo Video Sets,” “XXX Preteen Gallery,”

      “13yr Models,” and “11 y.o. Models.” State’s Ex. 128. Detective Whited also

      found fifty-eight saved images on the phone depicting child pornography.


[5]   The State charged Forsythe with two counts of possession of child

      pornography, one as a Level 5 felony and the other as a Level 6 felony. The

      State also charged Forsythe with being a repeat sexual offender. Prior to trial,

      Forsythe moved to suppress the evidence seized from his home. The trial court

      denied that motion following a hearing. Thereafter, Forsythe filed a motion in

      limine seeking to exclude any evidence of his internet search history. The trial

      court granted that motion in part with respect to internet searches related to

      pornography, generally, but denied that motion with respect to internet searches

      specifically related to child pornography. A jury found Forsythe guilty as

      charged. The trial court entered judgment of conviction accordingly and



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020   Page 3 of 10
      sentenced Forsythe to an aggregate eight-year term, with five years executed

      and three years suspended to probation. This appeal ensued.


                                     Discussion and Decision
[6]   Forsythe contends that the trial court abused its discretion when it admitted

      into evidence at trial the LG and ZTE cell phones and his internet search

      history. As our Supreme Court has stated:


              Generally, a trial court’s ruling on the admission of evidence is
              accorded a great deal of deference on appeal. Because the trial
              court is best able to weigh the evidence and assess witness
              credibility, we review its rulings on admissibility for abuse of
              discretion and only reverse if a ruling is clearly against the logic
              and effect of the facts and circumstances and the error affects a
              party’s substantial rights.


      Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015). We address each of Forsythe’s

      contentions in turn.


                                                  Cell Phones

[7]   Forsythe first contends that the trial court abused its discretion when it admitted

      into evidence the cell phones because the State did not establish a proper chain

      of custody for the phones. As our Supreme Court has held,


              [t]o establish a proper chain of custody, the State must give
              reasonable assurances that the evidence remained in an
              undisturbed condition. Cliver v. State, 666 N.E.2d 59, 63 (Ind.
              1996). However, the State need not establish a perfect chain of
              custody, and once the State “strongly suggests” the exact
              whereabouts of the evidence, any gaps go to the weight of the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020   Page 4 of 10
              evidence and not to admissibility. Wrinkles v. State, 690 N.E.2d
              1156, 1160 (Ind. 1997); Jenkins v. State, 627 N.E.2d 789, 793 (Ind.
              1993) (noting that failure of FBI technician to testify did not
              create error). Moreover, there is a presumption of regularity in
              the handling of evidence by officers, and there is a presumption
              that officers exercise due care in handling their duties. Wrinkles,
              690 N.E.2d at 1160. . . . To mount a successful challenge to the
              chain of custody, one must present evidence that does more than
              raise a mere possibility that the evidence may have been
              tampered with. Cliver, 666 N.E.2d at 63.


      Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002).


[8]   Forsythe maintains that the State did not establish “the initial link” in the chain

      of custody for the phones because it did not present testimony from the officers

      who found the phones inside his home and took them outside to the forensic

      vehicles for triage. Appellant’s Br. at 14. Detective Kunstek testified that

      officers found one phone in Forsythe’s bedroom and the two other phones in

      Frangello’s bedroom, but that he had not recovered any of the phones

      personally. Forsythe asserts that, absent testimony “as to the actual recovery of

      the phones, there is at most an inference that the phones brought to the forensic

      vehicle were found within the home,” which inference is insufficient to show

      the chain of custody beyond a reasonable doubt. Id. at 15. We cannot agree.


[9]   In Espinoza v. State, the defendant challenged the chain of custody for drugs

      presented at his trial. 859 N.E.2d 375, 381 (Ind. Ct. App. 2006). Indiana State

      Police Detective Larry Mote testified that a DEA agent in Yakima, Washington

      had intercepted a package containing drugs to be mailed to an address in


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020   Page 5 of 10
       Logansport, Indiana, and he mailed the package to Detective Mote. After

       Detective Mote tested the drugs, he repackaged them and put a transmitter

       inside the package before delivery to the defendant, who was later arrested. On

       appeal following his conviction, this Court held that a sufficient chain of

       custody was established despite the lack of testimony by the DEA agent who

       had originally intercepted the package. Citing Troxell, we held that, “[a]lthough

       no evidence was presented regarding how the Package came into the possession

       of the DEA in Washington, we presume that the officers in Washington

       exercised due care in handling their duties.” Id. at 382. And we noted that the

       defendant did not present evidence that raised more than a mere possibility that

       the evidence may have been tampered with. Id. at 383.


[10]   Likewise, here, we presume that the officers who found the cell phones inside

       Forsythe’s house and immediately delivered them to officers in the forensic

       vehicles waiting outside exercised due care in handling their duties. See id. And

       Forsythe does not direct us to any evidence to indicate more than a mere

       possibility that the phones may have been tampered with. See id. The State

       established a sufficient chain of custody for the phones, and the trial court did

       not abuse its discretion when it admitted the phones into evidence at trial.


                                           Internet Search History

[11]   Forsythe next contends that the trial court abused its discretion when it

       admitted his internet search history into evidence. Forsythe maintains that,

       when the trial court admitted that evidence over his objection, the court

       improperly relied on “the defunct doctrine of res gestae.” Appellant’s Br. at 12.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020   Page 6 of 10
       And he asserts that, in any event, the evidence was inadmissible under

       Evidence Rule 403. We cannot agree.


                                                    Res Gestae

[12]   As our Supreme Court has explained, “[r]es gestae—the common-law doctrine

       that made evidence admissible as part of a crime’s story—did not survive the

       adoption of Indiana’s Rules of Evidence in 1994. That is, res gestae is no longer

       a proper basis for admitting evidence; instead, admissibility is determined under

       Indiana’s Rules of Evidence.” Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017).

       The Court then held that,


               [u]nder Swanson[ v. State, 666 N.E.2d 397, 398 (Ind. 1996)] and
               our Rules of Evidence . . . , the many flavors of res gestae—
               “inextricably bound up,” “inextricably intertwined,”
               “circumstances and context,” and “part and parcel,” to name a
               few—are not proper grounds for admissibility. . . . We thus
               disapprove of the “inextricably bound up” standard. . . .


       Id. at 177.


[13]   Here, at trial, when the State moved to admit five exhibits depicting Forsythe’s

       internet search history, Forsythe objected based on relevance and lack of

       foundation. The trial court ruled that the foundation for each exhibit was

       sufficient. With respect to relevance, the court stated:


               But there is probative value, as I see it. And although I think
               they may be to some extent prejudicial, I think the probative
               value is great because these images are intrinsic to the nature of this
               investigation that forms this charge. Under Rule 403, I do not

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020     Page 7 of 10
               believe that the prejudice involved substantially outweighs the
               probative value, as I see it. . . .


       Tr. Vol. 3 at 67 (emphasis added). On appeal, Forsythe asserts that, “[b]ased

       upon the language used by the trial court, there is no question that it improperly

       relied on res gestae in admitting the search history evidence.” Appellant’s Br. at

       10.


[14]   However, in Swanson, our Supreme Court stated that it “fully expect[ed] that

       the great majority of the evidence we formerly admitted by calling it res gestae

       will continue to be admitted in Indiana courts. It will be admitted, however, by

       reference to the legal concepts and vocabulary of the Indiana Rules of

       Evidence.” 666 N.E.2d at 399. Here, while the trial court’s reference to the

       “intrinsic” value of the evidence as it related to the investigation might suggest

       res gestae, the court explicitly admitted the evidence under Evidence Rule 403.

       Thus, we cannot say that the trial court impermissibly relied on res gestae in

       admitting the evidence.


                                               Evidence Rule 403

[15]   Still, Forsythe contends that his internet search history was inadmissible under

       Indiana Evidence Rule 403, which permits a trial court to exclude relevant

       evidence if its probative value is substantially outweighed by a danger of

       prejudice. Forsythe asserts that the probative value of the search history “is

       minimal and is thus substantially outweighed by its significant prejudice and

       misleading nature.” Appellant’s Br. at 11. Forsythe points out that the State


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020   Page 8 of 10
       did not present evidence connecting the internet search terms with any

       photographs admitted into evidence at trial. Thus, he maintains that “the

       exhibits do little to prove th[e] actual issue in question of whether [he]

       possessed the pictures.” Id. We cannot agree.


[16]   Our Supreme Court has explained that “[e]vidence is relevant when it has any

       tendency to prove or disprove a consequential fact. This liberal standard for

       relevancy sets a low bar, and the trial court enjoys wide discretion in deciding

       whether that bar is cleared.” Snow, 77 N.E.3d at 177 (citations omitted). And

       “‘[w]hen determining the likely unfair prejudicial impact, courts will look for

       the dangers that the jury will (1) substantially overestimate the value of the

       evidence or (2) that the evidence will arouse or inflame the passions or

       sympathies of the jury.’” Myers v. State, 33 N.E.3d 1077, 1109 (Ind. Ct. App.

       2015) (quoting Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012), trans.

       denied), trans. denied.


[17]   Here, Forsythe’s search history shows that he was intentionally looking for

       child pornography. The relevance to the charges is clear. And Forsythe has not

       shown that the danger of unfair prejudice outweighed the relevance. The State

       admitted into evidence scores of images of child pornography obtained from

       Forsythe’s cell phones. In light of that evidence, it is not likely that the jury

       overestimated the value of the search history or that those search terms

       inflamed the passions of the jury. See id. The trial court did not abuse its

       discretion when it admitted into evidence Forsythe’s internet search history.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020   Page 9 of 10
[18]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020   Page 10 of 10
