MEMORANDUM DECISION
                                                                         Mar 02 2016, 6:12 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                    Gregory F. Zoeller
Anthony S. Churchward, P.C.                              Attorney General of Indiana
Fort Wayne, Indiana
                                                         James T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Randall L. Capatina,                                     March, 2, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         92A03-1506-CR-634
        v.                                               Appeal from the Whitley Circuit
                                                         Court.
                                                         The Honorable James R. Heuer,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Cause No. 92C01-1410-F4-117




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 92A03-1506-CR-634 | March 2, 2016             Page 1 of 7
[1]   Randall L. Capatina appeals his convictions of dealing in a narcotic drug, a
                           1                                                          2
      Level 4 felony ; possession of a narcotic drug, a Level 6 felony ; and
                                                                       3
      maintaining a common nuisance, a Level 6 felony. We affirm.


[2]   Capatina presents one issue for our review, which we restate as: whether the

      trial court erred by admitting certain evidence at trial.


[3]   In October 2014, Capatina, together with Matthew Hellums, sold heroin to a

      confidential informant. Based upon this incident, Capatina was charged with

      dealing in a narcotic drug, possession of a narcotic drug, and maintaining a

      common nuisance. After the State arrested Capatina and Hellums, it issued a

      search warrant for Hellums’ cell phone. In the course of executing the search

      warrant, the State seized numerous text messages between Hellums and a

      number identified as Capatina’s cell phone number. A group of these text

      messages were admitted at Capatina’s jury trial, over defense objection, as

      State’s Exhibit 3. Capatina was found guilty as charged and was sentenced to

      an aggregate, executed sentence of six years. This appeal ensued.


[4]   Capatina contends that the trial court erroneously admitted Exhibit 3. The trial

      court is afforded broad discretion in ruling on the admissibility of evidence, and

      we will reverse its ruling only upon a showing of an abuse of discretion. Paul v.




      1
          Ind. Code § 35-48-4-1 (2014).
      2
          Ind. Code § 35-48-4-6 (2014).
      3
          Ind. Code § 35-48-4-13 (2014).


      Court of Appeals of Indiana | Memorandum Decision 92A03-1506-CR-634 | March 2, 2016   Page 2 of 7
      State, 971 N.E.2d 172 (Ind. Ct. App. 2012). An abuse of discretion occurs

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

      circumstances before the court. Id.


[5]   Specifically, Capatina asserts that Exhibit 3 should not have been admitted

      because the text messages were not properly authenticated as having been

      written by him. In order to lay a foundation for the admission of evidence, the

      proponent of the evidence must show that it has been authenticated. Hape v.

      State, 903 N.E.2d 977 (Ind. Ct. App. 2009), trans. denied. To satisfy this

      authentication requirement, the proponent must produce evidence sufficient to

      support a finding that the item is what its proponent claims. See Ind. Evidence

      Rule 901(a). Absolute proof of authenticity is not required; rather, the

      proponent of the evidence needs to establish only a reasonable probability that

      the item is what it is claimed to be. Pavlovich v. State, 6 N.E.3d 969 (Ind. Ct.

      App. 2014), trans. denied. Once this reasonable probability is shown, any

      inconclusiveness regarding the item’s connection to the events at issue goes to

      the item’s weight, not its admissibility. Id.


[6]   Here, the State presented testimony that during his post-arrest interview,

      Hellums allowed the officers to review text messages on his cell phone.

      Hellums’ cell phone contained text messages to and from a contact identified in

      his phone as “Randall” with the number 260-341-6189. Tr. p. 60. Pursuant to

      a search warrant, police then retrieved these text messages from Hellums’ cell

      phone, a portion of which were admitted at trial as Exhibit 3. Detective Brice

      testified to using a telephone retrieval system that downloads text messages

      Court of Appeals of Indiana | Memorandum Decision 92A03-1506-CR-634 | March 2, 2016   Page 3 of 7
      from a cell phone and produces a document that includes such identifiers as

      date, time, phone number, incoming message, and outgoing message, as well as

      the text message itself. Hellums testified at Capatina’s trial and identified the

      text messages in Exhibit 3 as texts between he and Capatina setting up the drug

      deal. In addition, Detective Brice testified that during his interview with

      Capatina, he asked Capatina for his cell phone number and Capatina provided

      the 260-341-6189 number. This evidence is more than sufficient to establish a

      reasonable probability that these text messages were authored by Capatina.

      Accordingly, the trial court properly determined that Exhibit 3 was

      authenticated.


[7]   Capatina also argues that admission of Exhibit 3 was erroneous because some

      of the text messages include information regarding his drug dealing in general

      and amount to improper character evidence prohibited by Indiana Evidence

      Rule 404(b). The Rule provides:

              Evidence of a crime, wrong, or other act is not admissible to
              prove a person’s character in order to show that on a particular
              occasion the person acted in accordance with the character.
      Evid. R. 404(b)(1). This rule is designed to prevent the jury from assessing a

      defendant’s present guilt on the basis of his past propensities — the “forbidden

      inference.” Remy v. State, 17 N.E.3d 396, 399 (Ind. Ct. App. 2014), trans.

      denied. However, such evidence may be admitted to prove “motive,

      opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

      or lack of accident.” Evid. R. 404(b)(2). This list of permissible purposes is


      Court of Appeals of Indiana | Memorandum Decision 92A03-1506-CR-634 | March 2, 2016   Page 4 of 7
      illustrative but not exhaustive. Freed v. State, 954 N.E.2d 526 (Ind. Ct. App.

      2011).


[8]   In assessing the admissibility of 404(b) evidence, the court must: (1) determine

      that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue

      other than the defendant’s propensity to commit the charged act; and (2)

      balance the probative value of the evidence against its prejudicial effect
                                                 4
      pursuant to Evidence Rule 403. Bishop v. State, 40 N.E.3d 935 (Ind. Ct. App.

      2015), trans. denied. The trial court is afforded wide latitude in weighing

      probative value against possible prejudice under Rule 403. Id.


[9]   Exhibit 3 contains text messages between Hellums and Capatina beginning

      seven days prior to and continuing through the date of the drug deal with the

      confidential informant. During this time period, there are several discussions of

      Capatina’s drug dealing both to Hellums and others, the quality of the drugs

      Capatina had for sale, the pricing of the drugs, drug customers, and obtaining

      the drugs for this sale and other planned sales. Capatina claims these messages

      were admitted merely to show he was a drug dealer and that he acted in

      conformity therewith on this occasion.




      4
        Although Capatina suggests that the proper standard for assessing the admissibility of 404(b) evidence is a
      three-part test, see Appellant’s Br. p. 13, our Supreme Court has explicitly adopted the two-part test we
      employ in our decision here. See Hicks v. State, 690 N.E.2d 215 (Ind. 1997).


      Court of Appeals of Indiana | Memorandum Decision 92A03-1506-CR-634 | March 2, 2016                Page 5 of 7
[10]   In his opening statement at trial, defense counsel suggested that Hellums is the

       drug dealer and that Capatina was merely the driver of the vehicle when this

       sale occurred. He further stated that the relationship between Capatina and

       Hellums “wasn’t . . . a drug dealer – drug addict [ ] relationship.” Tr. p. 38.

       The theory that Hellums is the drug dealer and Capatina had no role except as

       driver is exhibited again in defense counsel’s cross-examination of Detective

       Brice as well as the confidential informant. It is evident from defense counsel’s

       opening statement and cross-examination that the evidence in Exhibit 3 was

       relevant to matters other than Capatina’s propensity to deal heroin, namely the

       drug dealer/drug addict relationship between he and Hellums and the planning

       for this particular sale. Accordingly, Exhibit 3 survives the first component of

       the 404(b) test.


[11]   As for the second component, relevant evidence may be excluded if its

       probative value is substantially outweighed by the danger of unfair prejudice.

       See Evid. R. 403. Here, prior to the admission and discussion of Exhibit 3,

       Hellums testified that several months before this incident he had become

       addicted to heroin, using it daily and purchasing it exclusively from Capatina.

       Hellums also testified that he knew of no other job held by Capatina. Further,

       he testified that once he was contacted by the confidential informant about her

       need to buy heroin, he contacted Capatina because he knew he could get the

       heroin from him and that when he arrived at Capatina’s house, Capatina

       already had the heroin weighed out and in a baggie. In light of the fact that

       Capatina’s level of involvement in this deal had been brought into issue by the


       Court of Appeals of Indiana | Memorandum Decision 92A03-1506-CR-634 | March 2, 2016   Page 6 of 7
       defense and that the jury had already heard testimony regarding Capatina’s

       drug sale business, we cannot say that the probative value of the text messages

       contained in Exhibit 3 was substantially outweighed by the danger of unfair

       prejudice. Exhibit 3 also survives the second component of the test, and,
                                                                                                              5
       therefore, the trial court did not abuse its discretion by admitting Exhibit 3.


[12]   For the reasons stated above, we affirm the trial court.


[13]   Judgment affirmed.


       Bailey, J., and Crone, J., concur.




       5
         Even if we had found error in the trial court’s admission of Exhibit 3, the error would be harmless at best.
       The improper admission of evidence is harmless error if the conviction is supported by substantial
       independent evidence of guilt such that there is no substantial likelihood the challenged evidence contributed
       to the conviction. Remy, 17 N.E.3d 396. Here, substantial independent evidence of Capatina's guilt was
       presented at trial via Hellums’ unchallenged testimony such that there is no substantial likelihood that
       Exhibit 3 contributed to Capatina’s conviction.

       Court of Appeals of Indiana | Memorandum Decision 92A03-1506-CR-634 | March 2, 2016                Page 7 of 7
