MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Aug 31 2020, 8:42 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                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         Tina L. Mann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tracey Herron,                                           August 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-3019
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant W.
Appellee-Plaintiff,                                      Hawkins, Judge
                                                         Trial Court Cause No.
                                                         49G05-1803-F1-9772



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020                Page 1 of 9
                                  Case Summary and Issue
[1]   Following a bench trial, Tracey Herron was convicted of three counts of Class

      A felony child molesting, one count of Level 1 felony child molesting, and one

      count of Level 4 sexual misconduct with a minor. Herron appeals, presenting

      the sole issue of whether the trial court abused its discretion by admitting

      evidence without proper authentication. Concluding that the trial court did not

      abuse its discretion, we affirm.



                             Facts and Procedural History
[2]   Herron is married to Shante Herron. The victim, B.O.,1 is Shante’s first cousin.

      B.O. often spent the night at Herron’s home beginning when she was around

      ten years old. From the time B.O. was eleven until she was fourteen Herron

      subjected B.O. to multiple sexual acts. At the age of fifteen, B.O. decided to tell

      another cousin about what Herron had done to her.


[3]   Subsequently, B.O. decided that she needed proof of what Herron had done, so

      she contacted Herron on Facebook Messenger. B.O. had communicated with

      Herron like this in the past. In the Facebook messages, B.O. and Herron

      discussed previous sexual encounters between them. B.O. took screenshots of

      the conversation. After the Messenger conversation with Herron, B.O. told her




      1
       The child’s official initials are R.O., however B.O. was used during the trial due to a nickname because the
      child and her mother share a first name. We will likewise refer to the victim as B.O.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020                    Page 2 of 9
      mother, brother, and sister what Herron had done to her. B.O.’s mother then

      contacted the police.


[4]   On March 22, 2018, the State charged Herron with multiple counts of child

      molesting and two counts of sexual misconduct with a minor. Herron waived

      his right to a jury trial. At the bench trial, B.O. testified about several times that

      Herron molested her while she was staying at his house. When explaining how

      she reached out to Herron for “proof,” she stated that she decided to text him

      on Facebook Messenger because she and Herron had communicated through

      Facebook Messenger in the past. The State offered Exhibit 1, which B.O.

      identified as a true and accurate picture of what she knew to be Herron’s

      Facebook profile page. The Facebook account is in the name “Tc Herron.”

      Index of Exhibits, Volume 1 at 6. Exhibit 1 was admitted without objection.

      The State then moved to admit State’s Exhibit 3, screenshots of Facebook

      Messenger messages with “Tc Herron.” Id. at 10-13. B.O. testified that she took

      the screenshots of the messages at issue and that they were the entirety of the

      conversation she initiated with Herron. Herron objected on the grounds that the

      “Tc Herron” Facebook account with which B.O. was communicating had not

      been authenticated and that the State could not prove that the messages were

      sent by him. The trial court took the objection under advisement and did not

      admit the exhibit during B.O.’s testimony.


[5]   The State again moved to admit Exhibit 3 during the testimony of Detective

      Justin Hickman, a child abuse detective with the Indianapolis Metropolitan

      Police Department who received the police report made by B.O.’s mother. But

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020   Page 3 of 9
      first, Detective Hickman identified State’s Exhibit 2 as a screen shot of a

      photograph of Herron that was in the photos section of the Tc Herron

      Facebook account. Exhibit 2 was admitted without objection. Detective

      Hickman then testified that State’s Exhibit 3 appeared to be a Facebook

      Messenger conversation with the Tc Herron Facebook account. When the State

      moved to admit Exhibit 3, Herron conceded that the State had shown the

      Facebook account belonged to him; therefore his only remaining objection to

      State’s Exhibit 3 was that the State had not proven the messages were sent by

      him. The State presented evidence that Herron’s “Tc Herron” Facebook

      account was linked to his Facebook Messenger account and that Facebook

      Messenger allows for private conversations between people to occur. State’s

      Exhibit 3 also indicated that B.O. and Tc Herron were “Friends” on Facebook.

      Finding that State’s Exhibit 3 was sufficiently authenticated by testimony and

      by State’s Exhibits 1 and 2, the trial court admitted Exhibit 3 into evidence over

      objection.


[6]   Herron was convicted of three counts of Class A felony child molesting, one

      count of Level 1 felony child molesting, and one count of Level 4 sexual

      misconduct with a minor and ordered to serve an aggregate sentence of seventy

      years. Herron now appeals.



                                Discussion and Decision



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020   Page 4 of 9
                                     I. Standard of Review
[7]   The trial court has broad discretion in ruling on the admissibility of evidence.

      Small v. State, 632 N.E.2d 779, 782 (Ind. Ct. App. 1994), trans. denied. We will

      disturb its ruling only upon a showing of abuse of that discretion. Id. An abuse

      of discretion may occur if the trial court’s decision is clearly against the logic

      and effect of the facts and circumstances before the court, or if the court has

      misinterpreted the law. Baxter v. State, 734 N.E.2d 642, 645 (Ind. Ct. App.

      2000).


                                 II. Admission of Evidence
[8]   Herron argues that Exhibit 3, containing screenshots of Facebook Messenger

      messages, was not properly authenticated. Specifically, he contends that there

      was no evidence that Herron personally sent the messages. Before evidence can

      be admitted, the proponent of the evidence must show that the evidence has

      been authenticated. Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009),

      trans. denied. The Facebook messages at issue fall within the purview of Indiana

      Rule of Evidence 901(a). See Wilson v. State, 30 N.E.3d 1264, 1268 (Ind. Ct.

      App. 2015) (stating, with respect to Twitter messages, “[l]etters and words set

      down by electronic recording and other forms of data compilation are included

      within Rule 901(a)”), trans. denied.


[9]   Indiana Rule of Evidence 901(a) provides that “[t]o satisfy the requirement of

      authenticating or identifying an item of evidence, the proponent must produce

      evidence sufficient to support a finding that the item is what the proponent

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020   Page 5 of 9
       claims it is.” Absolute proof of authenticity is not required. Fry v. State, 885

       N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. All that is required is

       evidence establishing “a reasonable probability that an item is what it is claimed

       to be[.]” Thomas v. State, 734 N.E.2d 572, 573 (Ind. 2000). Additionally,

       authentication of an exhibit can be established by either direct or circumstantial

       evidence. Newman v. State, 675 N.E.2d 1109, 1111 (Ind. Ct. App. 1996).


[10]   Indiana Evidence Rule 901(b) provides examples of evidence that satisfies the

       authentication requirement including “(1) . . . [t]estimony that an item is what it

       is claimed to be, by a witness with knowledge” and “(4) . . . [t]he appearance,

       contents, substance, internal patterns, or other distinctive characteristics of the

       item, taken together with all the circumstances.” Ind. Evidence Rule 901(b)(1),

       (b)(4). Indiana Rule of Evidence 901(b)(4) uses language identical to that of

       Federal Rule of Evidence 901(b)(4) which is “one of the most frequently used

       means to authenticate electronic data, including text messages and emails.”

       M.T.V. v. State, 66 N.E.3d 960, 963 (Ind. Ct. App. 2016) (quoting Wilson, 30

       N.E.3d at 1268), trans. denied. Our courts have likewise analyzed the

       authentication of electronic data via the requirements of Indiana Rule 901(b)(4).


[11]   For instance, in Wilson we addressed whether messages sent through a Twitter

       social media account had been properly authenticated and therefore, properly

       admitted. 30 N.E.3d at 1268. A witness testified that she often communicated

       with the defendant on Twitter and had general knowledge of the account. The

       account records included pictures depicting the defendant holding guns that

       matched the description of those used in the crime with which the defendant

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020   Page 6 of 9
       was charged. Moreover, there was testimony that the defendant was affiliated

       with two gangs, and the account frequently used terms referring to those gangs,

       showing that the author of the messages was affiliated with them. We

       concluded that “taken together, the witness testimony identifying the Twitter

       account as belonging to [the defendant] and the content posted on the account,

       including pictures and gang references, are more than sufficient to authenticate

       the Twitter posts as being authored by [the defendant].” Id. at 1269. Therefore,

       we held the trial court did not abuse its discretion by admitting the posts.


[12]   Subsequently, in Richardson v. State, we addressed the converse: whether the

       trial court properly excluded evidence of a Facebook message between a

       murder victim and a third party as not properly authenticated. 79 N.E.3d 958,

       961 (Ind. Ct. App. 2017), trans. denied. The defendant was accused of murder

       after an altercation that resulted in the victim being shot and killed. When

       police arrived at the scene, they found a cell phone on the victim’s body.

       During the police investigation, a Facebook profile was retrieved from the cell

       phone. The name on the Facebook account did not match the name of the

       victim; however, a conversation between the Facebook account and a third

       party a couple of days prior to the shooting was discovered. The defendant

       moved to have the Facebook messages admitted because the conversation, if

       the Facebook account could be shown to be the victim’s, suggested that the

       owner of the account needed help to rob an unspecified person. The police

       detective who discovered the messages testified at trial that he had “no idea




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020   Page 7 of 9
       who made the statement or who composed the message.” Id. at 964. Therefore,

       the trial court refused to admit the messages.


[13]   This court found that, unlike the evidence offered in Wilson, the defendant in

       Richardson did not present “any evidence describing distinctive characteristics

       that could connect the particular statement” to the victim, “nor did he present

       any other indicia of reliability establishing” the victim as the author of the

       contested statement. Richardson, 79 N.E.3d at 963-64. Therefore, the trial court

       did not err in excluding the Facebook messages as not properly authenticated.


[14]   Herron argues that there is no evidence he personally sent the Facebook

       messages and that someone else could have sent the messages from the

       Facebook account. Citing Richardson, Herron contends that “a [F]acebook

       account can be accessed from any cell phone or computer, by any person.”

       Brief of Appellant at 11.


[15]   Herron conceded that the State had shown the Tc Herron Facebook account

       belonged to him. Detective Hickman testified that State’s Exhibit 3 appeared to

       be an authentic Facebook Messenger conversation with the Tc Herron account.

       B.O. identified Herron’s Facebook page profile and testified that Exhibit 3

       showed a conversation between her and Herron. B.O. also testified that they

       had communicated in this manner previously. Exhibit 3 indicated that B.O. and

       Tc Herron were “Friends” on Facebook at the time of the communication.

       Further, both parties to the Facebook messages specifically discussed the sexual

       encounters B.O. testified Herron had subjected her to.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020   Page 8 of 9
[16]   We conclude that the State established the requisite reasonable probability that

       the Facebook messages were authored by Herron. Specifically, witness

       testimony and the distinctive characteristics of the exhibit were more than

       sufficient to authenticate the Facebook messages as being authored by Herron.

       Accordingly, the trial court did not abuse its discretion when it admitted the

       screenshots of the Facebook messages.



                                               Conclusion
[17]   The trial court did not abuse its discretion by admitting screenshots of Herron’s

       Facebook messages.


[18]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020   Page 9 of 9
