                                                                                FILED
                                                                            Jul 30 2019, 8:54 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                       Curtis T. Hill, Jr.
Marion County Public Defender                               Attorney General of Indiana
Appellate Division                                          Benjamin J. Shoptaw
Indianapolis, Indiana                                       Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Randy Rogers,                                               July 30, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-3023
        v.                                                  Appeal from the Marion Superior
                                                            Court
State of Indiana,                                           The Honorable Angela Davis,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            49G16-1808-CM-28255



Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-3023 | July 30, 2019                                   Page 1 of 8
[1]   Randy Rogers appeals his conviction for invasion of privacy as a class A

      misdemeanor. He raises one issue which we revise and restate as whether the

      trial court properly admitted certain text messages. We affirm.


                                        Facts and Procedural History

[2]   On August 25, 2018, Sierra Johnson and her best friend, Jasmine Arnold, went

      to a club, left at some point, and went to Jasmine’s apartment. When they

      arrived, Rogers, who lived with Jasmine, was present. Rogers became angry

      and swung a pillow at Johnson and Jasmine. Johnson “got up,” attempted to

      diffuse the situation, and told Rogers to calm down. Transcript Volume II at

      10. He threw her into a wall, which hurt her. She then “got up and . . .

      punched him hard,” went to the bathroom, and pushed her foot up against the

      door, but Rogers kicked down the door. Id. at 11. He pushed and grabbed

      Johnson, and shoved her down three or four times. Johnson suffered the loss of

      a nail, scratches on her chin, and bruises to her arm, back, face, and eyes.


[3]   The State charged Rogers with Count I, domestic battery as a class A

      misdemeanor, and Count II, battery resulting in bodily injury as a class A

      misdemeanor. The State later filed an amended information to add Count III,

      invasion of privacy as a class A misdemeanor, and Count IV, attempted

      obstruction of justice as a level 6 felony.


[4]   On November 15, 2018, the court held a bench trial. The State moved to

      dismiss Count I, and the court granted the motion. Johnson testified that she

      Court of Appeals of Indiana | Opinion 18A-CR-3023 | July 30, 2019          Page 2 of 8
      knew Rogers for about ten or eleven years and to the events of August 25th.

      She also testified that she received a subpoena to come to court for a bench trial

      on September 20th and that, while she was in the victim advocate’s room, she

      received a text from Rogers while there was a no contact order in place. The

      prosecutor showed an exhibit to Johnson, and she indicated that it contained

      “[t]exts from Randy” which accurately reflected the text messages she received

      on September 20th. The prosecutor moved to admit the messages as State’s

      Exhibit 28, and Rogers’s counsel objected “as to foundation” and argued: “For

      one thing we don’t know exactly who, although it says Randy at the top, that it

      doesn’t have any numbers and it also doesn’t have anything on the phone that

      identifies the phone as belonging to [Johnson]. We would object as to

      speculation as to the original and ask for the original on the phone.” Id. at 20.

      The court sustained the objection at that time and allowed the prosecutor to ask

      follow-up questions.


[5]   The following exchange then occurred:


              Q So did you – how did you receive these text messages?

              A Via text from Randy.

              Q And who’s phone was it on?

              A It was on my phone.

              Q Okay, and it says Randy at the top; is that the only Randy you
              have in your phone?

              A Yes.

              Q Okay. And is that how you know the defendant by?
      Court of Appeals of Indiana | Opinion 18A-CR-3023 | July 30, 2019         Page 3 of 8
              A Yes.

              Q So if you were receiving text messages from Randy it would
              be from the defendant?

              A Yes.


      Id. at 20-21. The prosecutor again moved to admit the exhibit, Rogers’s counsel

      renewed his objection, and the court admitted the exhibit.


[6]   The screenshot of text messages with the name “Randy” at the top states:


              I apologize that u got hurt. I swear u know I would never hurt
              you. Or anybody in ur family. 15 years we been knowing each
              other. We can talk about everything outside of court. But u
              DON[’]T have to testify. U know I love u like a little sister, and
              things got out of control that night. Do u want me to go to jail? I
              mean I did 3 weeks already. But if I’m convicted I’m facing jail.
              This is serious. And jasmine can’t take care of [N.] by herself.
              Do u want that?

              U can just walk out. Now, and I promise I will make it up to u.
              don’t take me away from my child. And mess up our family
              relationship. Your mom is like my mom. U know that.

              If ur sure in ur heart that u want to testify. Just tell me now.
              And I can make my decision. There is no point in y’all staying
              here.


      State’s Exhibit 28.


[7]   On redirect examination, Johnson testified that Rogers apologized in his text

      message. The prosecutor asked: “Was there another incident where he did?”

      Transcript Volume II at 25. She answered: “He did apologize.” Id.


      Court of Appeals of Indiana | Opinion 18A-CR-3023 | July 30, 2019          Page 4 of 8
[8]   After the State rested, Rogers’s counsel moved to dismiss Count IV, attempted

      obstruction of justice, pursuant to Rule 41(B). After some discussion, the court

      granted the motion. Rogers testified that he and Jasmine had an altercation,

      Johnson tried to break it up and started pushing him, and he never pushed her.

      When asked about the damage to the drywall shown in photographs presented

      by the State and admitted by the court, he stated a lot of the damage occurred

      previously and the house had been vandalized.


[9]   After the defense rested, Rogers’s counsel stated: “And very quickly . . . since

      the May-the Court has already found identity for the purposes of the text

      messages we’re no longer contesting that he sent this beyond a reasonable doubt

      at this time.” Id. at 46. After counsels’ arguments, the court stated in part:


              The Court does not believe a word that Randy Rogers said. His
              texts on the IOP which you are not contesting, he admits it . . . I
              apologize that you got hurt. Telling her to leave while she is in
              court for a court trial is the most egregious IOP that I’ve ever
              seen. Telling her that you can just walk out when somebody is
              subpoenaed under a Court Order is not how the Court system
              works and for you to try to say otherwise is, shows exactly where
              your thought process is. I don’t believe that it rose to the level of
              attempted obstruction of justice but it’s pretty close. And I can’t
              find you guilty of it but I can find you guilty of invasion of
              privacy. I’m the one who put the Protective Order in place and it
              was still in place. She testified that while she was in with the
              Court Advocate that you were sending her messages telling her
              that you can walk out and you promise to make it up to her.
              Well, that is not appropriate and the Court does not believe you.




      Court of Appeals of Indiana | Opinion 18A-CR-3023 | July 30, 2019           Page 5 of 8
       Id. at 49. The court found Rogers guilty of Count II, battery resulting in bodily

       injury, and Count III, invasion of privacy. The court sentenced him to 365

       days for Count II to be served consecutive to a suspended sentence of 365 days

       for Count III.


                                                     Discussion

[10]   The issue is whether the trial court abused its discretion in admitting certain text

       messages. Rogers asserts that the information in the text messages that things

       “got out of control that night” could have come from anyone cursorily familiar

       with him and the events that transpired on the night the incident took place.

       Appellant’s Brief at 17. He also asserts that the evidence of his authorship is

       drawn further into question by the fact that Johnson testified she and Rogers

       had known each other for ten to eleven years while the author of the messages

       says they had known each other for fifteen years. The State argues that the

       messages were clearly authenticated under Ind. Evidence Rule 901.


[11]   Generally, we review the trial court’s ruling on the admission or exclusion of

       evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind.

       1997), reh’g denied. We reverse only where the decision is clearly against the

       logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386,

       390 (Ind. 1997), reh’g denied. We further note that failure to object to the

       admission of evidence normally results in waiver and precludes appellate

       review unless its admission constitutes fundamental error. See Whatley v. State,

       908 N.E.2d 276, 280 (Ind. Ct. App. 2009) (citing Cutter v. State, 725 N.E.2d 401,

       406 (Ind. 2000), reh’g denied), trans. denied.
       Court of Appeals of Indiana | Opinion 18A-CR-3023 | July 30, 2019          Page 6 of 8
[12]   We note that while Rogers’s counsel initially objected to the admission of the

       exhibit, he later stated “the Court has already found identity for the purposes of

       the text messages we’re no longer contesting that he sent this beyond a

       reasonable doubt at this time.” Transcript Volume II at 46. Rogers has waived

       this issue, and in any event we could not say that reversal is warranted.


[13]   “To 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.” Ind. Evidence Rule 901(a). “Absolute

       proof of authenticity is not required.” Pavlovich v. State, 6 N.E.3d 969, 976 (Ind.

       Ct. App. 2014) (quoting Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008),

       trans. denied). The proponent of the evidence needs to establish only a

       reasonable probability that the document is what it is claimed to be. Id. Once

       this reasonable probability is shown, any inconclusiveness regarding the

       exhibit’s connection with the events at issue goes to the exhibit’s weight, not its

       admissibility. Id. Additionally, authentication of an exhibit can be established

       by either direct or circumstantial evidence. Id. Ind. Evidence Rule 901(b)(1)

       provides that “evidence that satisfies the requirement” includes “[t]estimony

       that an item is what it is claimed to be, by a witness with knowledge.”


[14]   The record reveals that Johnson testified she knew Rogers for about ten or

       eleven years and received a text from him while there was a no contact order in

       place and while she was in the victim advocate’s room. When showed State’s

       Exhibit 28, Johnson indicated that the exhibit constituted “[t]exts from Randy”

       and that they accurately reflected the text messages she received on September

       Court of Appeals of Indiana | Opinion 18A-CR-3023 | July 30, 2019           Page 7 of 8
       20th. Transcript Volume II at 19. Johnson also testified that she received the

       messages via text from Randy on her phone, that he is the only Randy she has

       in her phone, that she knows the defendant by Randy, and that if she were

       receiving text messages from Randy it would be from the defendant. The

       content of the text messages referred to the relationship between Rogers and

       Johnson, mentioned Jasmine, who Rogers testified he lived with, mentioned

       the night of the offense, included an apology, informed Johnson that she did

       not have to testify, and referenced the prospect of jail time. Under the

       circumstances, we cannot say that the trial court abused its discretion in

       admitting the evidence. 1


[15]   For the foregoing reasons, we affirm Rogers’s conviction.


[16]   Affirmed.


       May, J., and Mathias, J., concur.




       1
        Although this particular text message was adequately authenticated by the witness’s testimony, the better
       practice would be to ask further detailed questions i.e., whether the message appears to have been altered in
       any way.

       Court of Appeals of Indiana | Opinion 18A-CR-3023 | July 30, 2019                                  Page 8 of 8
