MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                    FILED
regarded as precedent or cited before any                      Mar 07 2018, 10:33 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
Jeremy K. Nix                                            Curtis T. Hill, Jr.
Huntington, Indiana                                      Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Zachary L. Lewis,                                        March 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         35A02-1709-CR-2130
        v.                                               Appeal from the Huntington
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas M. Hakes,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         35C01-1701-F5-7



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018    Page 1 of 15
                                                  Case Summary
[1]   Zachary Lee Lewis appeals his conviction and sentence for Level 5 felony

      battery on a pregnant woman and for being an habitual offender.1 We affirm.


                                                           Issues
[2]   Lewis raises the following issues on appeal:


               I.        whether the trial court abused its discretion by admitting
                         Facebook messages purportedly sent by Lewis without
                         proper foundation; and


               II.       whether his sentence is inappropriate.


                                                           Facts
[3]   In January 2017, Lewis and his then-girlfriend, J.W., lived in Huntington.

      J.W. was nearing her ninth month of pregnancy.2 The pair planned to raise

      J.W.’s child together. Shortly after midnight on January 18, 2017, Lewis and

      J.W. argued. J.W. ended the relationship and asked Lewis to leave her family’s

      home, where they resided.




      1
       The pre-sentence investigation report states Appellant’s legal name as “Zachery Lee Lewis,” with “Zachary
      Lee Lewis” listed among his aliases.
      2
       Trial testimony revealed that Lewis was aware of J.W.’s pregnancy. He told the police that “the baby’s not
      his, but he treats it as [if] it is his.” Tr. Vol. II p. 235. J.W.’s mother later testified that J.W. had a high-risk
      pregnancy.

      Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018                    Page 2 of 15
[4]   Around midnight the following day, Lewis telephoned J.W. from the St.

      Joseph’s Burn Center in Fort Wayne. He claimed that he was stabbed and that

      his truck, keys, and money were stolen. He asked J.W. for a ride to

      Huntington. In the early morning hours of January 19, 2017, J.W. borrowed

      her mother’s car and drove to Fort Wayne to pick Lewis up. As J.W. drove

      Lewis back to Huntington, he gave a rambling account of the events leading up

      to his telephone call. J.W. demanded to see proof that he was injured. Seeing

      none, she reiterated that she was done with their relationship.


[5]   Lewis then hit J.W. in the face and abdomen multiple times with an open hand

      and with his fist. When J.W. tried to pull over, Lewis grabbed the steering

      wheel and forced the vehicle back onto the road, veering toward an oncoming

      semi-truck. J.W. eventually stopped the vehicle and asked why Lewis was

      hitting her. Lewis said, “B****, keep going or I’m gonna do worse.” Tr. Vol.

      II p. 73. Lewis continued to hit J.W., despite her pleas that he was hurting her

      and might harm her baby. J.W. begged Lewis to leave the vehicle, but he

      refused. J.W. managed to exit the vehicle, ran across the street amid traffic,

      and tried to flag down passing motorists. Lewis chased J.W., grabbed her, and

      dragged her back across the median toward the vehicle. She dropped to the

      ground in an effort to pull away and curled into a fetal position in a roadside

      ditch. While she was on the ground, Lewis beat her face and abdomen multiple

      times. J.W. screamed, “Please stop, you’re gonna hurt the baby, I can’t feel

      her,” and “you’re gonna kill her, you’re gonna kill the baby, please just stop[.]”




      Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 3 of 15
      Id. at 75. Lewis finally stopped hitting J.W. when she screamed, “[Y]ou’re

      hitting the baby! I can’t feel the baby!” Id.


[6]   Lewis apologized and asked J.W. to hug him. He urged her to get back into the

      vehicle, to drive them home and to keep the attack a secret. Instead, J.W. ran

      to a nearby house for help. When no one answered, she ran behind the house.

      Lewis drove up to the house, and leaving the vehicle running, began to search

      for J.W. When an opportunity presented, J.W. ran to the vehicle and drove

      home. When she arrived at home, she was “bloody and . . . hysterical[.]” Id. at

      196. Her family called the police.


[7]   Officer Landon Sell of the Huntington City Police Department was dispatched

      to J.W.’s family’s house. J.W. was “frightened, sobbing, [and] . . . very

      concerned about her unborn child.” Id. at 209. “She had wounds to her face[,]

      some dried blood [and] cuts that were actively bleeding.” Id. at 210. Officer

      Sell photographed her injuries.


[8]   Later that day, at approximately 3:30 P.M., Lewis sent multiple messages to

      J.W. via Facebook Messenger. Lewis had two Facebook accounts and kept

      one of his passwords secret. Investigators photographed the following

      Facebook message exchange on J.W.’s cell phone:


              [Lewis]: I need clajdios [sic] number


              [J.W.]: He is locked up


              [Lewis]: Yo u want me to cpme [sic] over?

      Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 4 of 15
        [J.W.]: U can’t. [Lewis] u hurt me bad and they can’t keep the
        baby’s heartbeat it’s on n off. Dcs is involved


        [Lewis]: It’s me turkey


        [J.W.]: Why did you snap on me. Why did u hurt me n keep
        hitting me n hit my belly. Why


        [Lewis]: Sleeping with one of my brothh rs [sic]


        [J.W.]: I didn’t I swear to god I didn’t


        [Lewis]: Well im going to fort waybne [sic]


        [J.W.]: They r looking for [you].


        [Lewis]: Who?


        [J.W.]: Cops dcs parole.


        [Lewis]: Y?


        [J.W.]: BC [because] they took me to the hospital[.] They pulled
        me over. They dont [sic] know if imma lose the baby BC of u[.]
        Dcs was gonna take [child A.] BC of u


        [Lewis]: I dont [sic] remember what hapoened [sic]


        [J.W.]: U beat the hell out of me. U punched the hell out of my
        belly.


        [Lewis]: * * * No I didnt [sic]
Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 5 of 15
        [J.W.]: Yea u did I have marks they took pictures there is blood
        all over moms car. My clothes everything


        [Lewis]: Stop your [sic] freaking me out


        [J.W.]: No u did [Lewis]. I kept begging u to stop and u ton [sic]
        the car n my keys n I ran from u. To a house n beat on there [sic]
        door. They called the cops.


        [Lewis]: I lost everything[.] I dont [sic] remember [sic] where I
        put anything


        [J.W.]: Idk [I don’t know] all I know is im in so much pain
        everyone hates me BC of u and all I did was try n help u get
        home. Im bout [sic] to lose my kids BC of u


        [Lewis]: What am i supposed to do


        [J.W.]: I told u stay off the drugs. If I dint [sic] get away u
        would of [sic] killed . . . [m]e


        [Lewis]: You have beaten me


        [J.W.]: I can’t talk to u. They will take my kids. And u started.
        Beating me for no reason. And no i haven’t. I tried. To get
        away from u.


        [Lewis]: And i would never do anyythinh [sic] to take you away
        from your family


        [J.W.]: U did last night dcs was gonna take [child A.] from me.
        N u damn near killed the baby from hitting me. U need to get
        help [Lewis] and I can’t do it. They r putting a protective order

Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 6 of 15
              where u can’t see us or be around us nothing. Im sorry I gotta go
              please get help before u hurt someone else or hurt urself. Ur a
              damn good man n person when ur off of drugs. U need help we
              can’t talk im not losing my kids. Bye.


      Ex. 1-7.


[9]   On January 19, 2017, the State charged Lewis with battery on a pregnant

      woman and criminal confinement, as Level 5 felonies, and with being an

      habitual offender. On July 25-27, 2017, he was tried by a jury. J.W. testified

      that Lewis communicated with her via Facebook Messenger before and after

      the attack; that she had helped Lewis to set up a Facebook account; that Lewis

      could log into his account from any cell phone or computer; and that she had

      no reason to doubt that the post-attack Facebook messages were authored by

      Lewis because the exchange included: (1) Lewis’ longtime inside joke with her

      mother; (2) his request for their mutual friend Claudio’s contact information;

      (3) references to the attack—including Lewis’ denial that he struck her; his

      claim that he did not recall the events; and his claim that he had lost his keys

      and truck; and (4) references to their troubled relationship, including Lewis’

      claims that J.W. had previously struck him and that she had sex with one of his

      brothers. The trial court admitted the Facebook messages into evidence over

      Lewis’ continuing objections. The State also introduced recordings of Lewis’

      jailhouse telephone calls to J.W., in which he professed his love, urged her to

      recant her statements to police, and to lie under oath at trial.




      Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 7 of 15
[10]   Throughout his testimony, Lewis admitted on multiple occasions that he

       initiated and authored the Facebook messages to J.W. See Tr. Vol. III p. 95

       (“[Y]es, I contacted [J.W.] on Facebook, Instant Messenger.”); id. at 130-31,

       137, 153. He offered up an alternate interpretation for the conversation,

       maintaining that he was merely sending messages of “concern” and to see “if

       she needed something, needed help or something” after their breakup. Id. at 96,

       97. He testified that he never intentionally struck J.W. and that he initially

       misread J.W.’s messages as merely accusing him of hurting her “emotionally.”

       Id. at 97. He testified that he was “completely confused with all these text

       messages” and “tired of the lies” and “done with her drama” and “[h]er trying

       to push something off on me . . . that I didn’t do.” Id. at 106, 108. He testified

       that he was reluctant to cooperate with police because he did not want J.W. to

       be arrested for battering him.


[11]   At the close of the evidence, the jury returned a guilty verdict on the battery

       offense and not guilty of criminal confinement. Lewis subsequently admitted to

       being an habitual offender. At his sentencing hearing on September 11, 2017,

       correctional officer Todd Spillman of the Huntington County Jail testified that,

       since Lewis’ incarceration, jail officials had to lock him down and segregate

       him for threats against correctional officers and for physical violence against a

       fellow inmate. The trial court imposed a five and one-half year sentence for the

       battery and enhanced that sentence by five years because Lewis was an habitual

       offender, for an aggregate sentence of ten and one-half years. The trial court

       found that Lewis’ significant criminal history—including numerous prior


       Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 8 of 15
       battery convictions—was an aggravating circumstance and found no mitigators.

       He now appeals.


                                                   Analysis
                                        I.      Admission of Evidence

[12]   Lewis argues that the trial court erred in admitting Facebook messages which

       he alleges were not properly authenticated and, therefore, lacked a proper

       foundation. “The trial court has discretionary power on the admission of

       evidence, and its decisions are reviewed only for an abuse of that discretion.”

       Lewis v. State, 34 N.E.3d 240, 247 (Ind. 2015). An abuse of discretion occurs

       when the decision is clearly against the logic and effect of the facts and

       circumstances. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012).


[13]   “‘A claim of error in the exclusion or admission of evidence will not prevail on

       appeal unless the error affects the substantial rights of the moving party.’” Id.

       (quoting McCarthy v. State, 749 N.E.2d 528, 536 (Ind. 2001)). Even if the trial

       court abused its discretion in admitting evidence, the judgment will be

       undisturbed if the decision to admit evidence is harmless. Bowman v. State, 73

       N.E.3d 731, 734 (Ind. Ct. App. 2017), trans. denied. “Harmless error occurs

       ‘when the conviction is supported by such substantial independent evidence of

       guilt as to satisfy the reviewing court that there is no substantial likelihood that

       the questioned evidence contributed to the conviction.’” Id. (quoting Lafayette v.

       State, 917 N.E.2d 660, 666 (Ind. 2009)).




       Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 9 of 15
        “To lay a foundation for the admission of evidence, the
        proponent of the evidence must show that it has been
        authenticated.” 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 claims it
        is.” Absolute proof of authenticity is not required. Rather, the
        proponent of the evidence must establish only a reasonable
        probability that the evidence is what it is claimed to be, and may
        use direct or circumstantial evidence to do so. Once this
        reasonable probability is shown, any inconclusiveness of the
        evidence’s connection with the events at issue goes to evidential
        weight, not admissibility.


        “Letters and words set down by electronic recording and other
        forms of data compilation are included within Rule 901(a).”
        Moreover, Evidence Rule 901(b) provides a non-exhaustive list of
        evidence that satisfies the authentication requirement. One
        example is where there is evidence describing a process or system
        and showing that it produces an accurate result. Evid. R.
        901(b)(9). Another example, provided in Evidence Rule
        901(b)(4), is where, taken together with all the circumstances, the
        evidence has distinctive characteristics in appearance, contents,
        or substance. Federal Rule of Evidence 901(b)(4) uses language
        identical to that of Indiana Rule of Evidence 901(b)(4). “We
        have previously acknowledged that federal courts have
        recognized Federal Rule of Evidence 901(B)(4) as one of the
        most frequently used means to authenticate electronic data,
        including text messages and emails.” Wilson [v. State], 30 N.E.3d
        1264,] 1268 [(Ind. Ct. App. 2015).].


Richardson v. State, 79 N.E.3d 958, 962 (Ind. Ct. App. 2017) (internal citations

and quotations omitted).




Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 10 of 15
[14]   In Wilson, during the defendant’s murder trial, the trial court allowed his

       Twitter posts referencing his gang affiliation and his possession of handguns

       comparable to the murder weapons to be admitted into evidence over his

       objection. In affirming the judgment, we rejected Wilson’s claim that the State

       had failed to provide sufficient foundation to authenticate the Twitter messages

       as being authored by him. We found that “witness testimony identifying the

       Twitter account as belonging to Wilson and the content of the account,

       including pictures and gang references[,]” were “more than sufficient to

       authenticate the Twitter posts as being authored by Wilson.” Wilson, 30

       N.E.3d at 1269.


[15]   Here, J.W. testified that after the attack—as he had before—Lewis contacted

       her “[t]hrough Facebook Messenger.” Tr. Vol. II p. 85. J.W. testified that

       Lewis typically used Facebook Messenger on his cell phone and that she had

       “helped him set [his Facebook Messenger account] up.” Id. at 89. She testified

       further that, in his post-attack Facebook messages, Lewis asked her for Robert

       Claudio’s phone number; she explained that Claudio was “a very good friend of

       mine” and “he’s friends with [Lewis].” Id. at 91. She also testified that the

       messages included the phrase, “It’s me, turkey,” which was “what [Lewis] used

       to say to [her] mom when he would walk into the house.” Id. at 93. J.W. also

       testified that the messages referenced Lewis’ long-held suspicion that she had

       sex with one of his brothers. Elsewhere in the exchange, J.W. testified that she

       and Lewis exchanged messages in which she told Lewis that a no-contact order

       was in effect; expressed her fear that his attack might prompt DCS to take her


       Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 11 of 15
       children; and warned him to stay off drugs. J.W. testified that Lewis replied by

       denying that he had attacked her and alleging that she had previously initiated

       physical violence in their relationship. J.W. also testified that the sender stated,

       “I lost everything. I don’t remember where I put anything[,]” which recalled

       Lewis’ initial ruse that he needed a ride because he could not find his keys,

       truck, or money. Ex. 5. Lastly, J.W. testified that nothing about the Facebook

       exchange led her to believe that she was conversing with anyone but Lewis.


[16]   Based on the foregoing, we conclude as in Wilson, that the State established a

       reasonable probability that the Facebook messages were what the State claimed

       them to be. See Richardson, 79 N.E.3d at 962. Specifically, witness testimony,

       including Lewis’ own admissions, and multiple instances of corroborative

       content were more than sufficient to authenticate the Facebook messages as

       being authored by Lewis. See Wilson, 30 N.E.3d at 1269. The trial court did

       not abuse its discretion in admitting the Facebook messages into evidence.

       Error, if any, from the admission of the messages into was harmless, given

       Lewis’ testimony that he authored them. See Bowman, 73 N.E.3d at 734.


                                                 II.     Sentence

[17]   Next, Lewis argues that his sentence is inappropriate. Indiana Appellate Rule

       7(B) provides that we may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, we find that the sentence is

       inappropriate in light of the nature of the offenses and the character of the

       offender. When considering whether a sentence is inappropriate, we need not

       be “extremely” deferential to a trial court’s sentencing decision. Rutherford v.
       Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 12 of 15
       State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must give due

       consideration to that decision. Id. We also understand and recognize the

       unique perspective a trial court brings to its sentencing decisions. Id. Under

       this rule, the burden is on the defendant to persuade the appellate court that his

       or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006).


[18]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[19]   Here, the trial court imposed a five and one-half year sentence for Lewis’ Level

       5 felony battery conviction and enhanced that sentence by five years because he

       was an habitual offender, for an aggregate sentence of ten and one-half years.

       The trial court ordered the entire sentence to be executed in the Department of

       Correction. Under Indiana Code Section 35-50-3-6, a person convicted of a

       Level 5 felony “shall be imprisoned for a fixed term of between one (1) and six

       Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 13 of 15
       (6) years, with the advisory sentence being three (3) years.” Indiana Code

       Section 35-50-2-8 provides that a court “shall sentence a person found to be a[n]

       habitual offender to an additional fixed term that is between: . . . two (2) years

       and six (6) years, for a person convicted of a Level 5 [felony].” In imposing a

       ten and one-half year sentence, the trial court stopped short of imposing the

       twelve-year maximum allowable sentence. Lewis argues that his sentence is

       inappropriate.


[20]   Regarding the nature of the offense, after luring J.W. under false pretenses to

       come to his aid and knowing in the midst of a high-risk pregnancy, Lewis

       repeatedly struck her face and abdomen with his open hand and fist, injuring

       her. When J.W. tried to escape him, he chased her into traffic, dragged her

       back to her vehicle, and punched her face and abdomen as she lay on the

       ground in a fetal position. He struck her with such force that the steering

       wheel, console, and driver’s side window of her vehicle were spattered with

       blood. When she reached safety, she was bleeding from her nose, mouth, and

       from open cuts, her lip was split, and she feared that she had lost her baby.


[21]   As for Lewis’ character, the record reveals that after he attacked J.W., he

       begged her to pretend that the incident never happened; denied any recollection

       of the events; accused her of being the aggressor; and placed multiple jailhouse

       calls to J.W., in which he professed his love, urged her to recant her statements

       to police, and to lie under oath at trial. Additionally, Lewis has a significant

       criminal history, including numerous battery convictions. Now thirty-two years

       of age, Lewis has been involved with the criminal justice system since he was

       Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 14 of 15
       approximately fourteen years old. The pre-sentence investigation report reveals

       that Lewis has misdemeanor and felony convictions for intimidation in 2011;

       three convictions for disorderly conduct in 2011, 2013 and 2016; and

       misdemeanor and felony convictions for battery in 2001, 2004, 2009 (two

       times), 2010, 2011, 2013, 2014, 2016, and 2017. His multiple contacts with the

       criminal justice system and court-ordered participation in treatment programs

       for aberrant behavior, anger issues, and substance abuse have not deterred him

       whatsoever, to the point that he escalated here to attacking a pregnant woman

       in public. Given the viciousness of Lewis’ attack on J.W., his extensive

       criminal history—including his propensity for physical violence—and his

       inability to correct his behavior, we cannot say that his sentence is

       inappropriate.


                                                 Conclusion
[22]   The trial court did not abuse its discretion by admitting Lewis’ Facebook

       messages, and we cannot say that his sentence is inappropriate. We affirm.


[23]   Affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 35A02-1709-CR-2130 | March 7, 2018   Page 15 of 15
