                                                                          FILED
                                                                     Jul 30 2020, 9:10 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Bruce W. Graham                                             Curtis T. Hill, Jr.
Graham Law Firm P.C.                                        Attorney General of Indiana
Lafayette, Indiana                                          Myriam Serrano
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Scott Parker,                                       July 30, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            20A-CR-315
        v.                                                  Appeal from the Tippecanoe
                                                            Superior Court
State of Indiana,                                           The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            79D02-1903-F2-10



Brown, Judge.




Court of Appeals of Indiana | Opinion 20A-CR-315 | July 30, 2020                              Page 1 of 10
[1]   Michael Scott Parker appeals his convictions for dealing in methamphetamine

      as a level 3 felony and operating a motor vehicle without ever receiving a

      license as a class C misdemeanor. He argues the trial court abused its discretion

      in admitting certain Facebook messages. We affirm.


                                        Facts and Procedural History

[2]   On March 19, 2019, Lafayette Police Sergeant Michael Zambon learned that

      Parker was wanted on a warrant from another jurisdiction and that he was

      possibly in the area. Lafayette Police Sergeant Brandon Withers obtained a

      photo of Parker from the Bureau of Motor Vehicles (“BMV”) and asked

      Sergeant Zambon to use social media platforms to help locate Parker. Sergeant

      Zambon found Parker’s profile on Facebook, which had Parker’s name and

      date of birth. He ran Parker’s name and date of birth through a national

      database, confirmed Parker was wanted on a warrant, and verified his physical

      appearance through the BMV.


[3]   On March 20, 2019, Sergeant Zambon used a fictitious profile on Facebook

      under the name, Kris Johnson, to initiate a conversation with what appeared to

      be a profile under Parker’s name by sending a message expressing an interest in

      selling a vehicle. Sergeant Zambon communicated with the user under Parker’s

      name, discussed the vehicle and tattoos, and, at some point during the

      conversation, Sergeant Zambon received a message asking if he did “Go,”

      which he knew to be a street name for methamphetamine. Transcript Volume

      III at 88. The user under Parker’s profile solicited Sergeant Zambon to help sell

      methamphetamine, and they arranged to meet “at the area of 4th and Romig,
      Court of Appeals of Indiana | Opinion 20A-CR-315 | July 30, 2020         Page 2 of 10
      the Shell gas station down there” for that purpose and the vehicle inspection. 1

      Id. at 91. The profile under Parker’s name sent a message stating he lived on

      Broadway, and law enforcement identified an address for Parker on Broadway.


[4]   At about 1:00 a.m., Lafayette Police Officer Khoury Elias moved to a position

      where he could see “Romig Street in the 300 block” and the gas station. Id. at

      126. Officer Elias observed that the lighting condition in that area was “pretty

      well lit.” Id. at 127. Parker arrived at the Shell gas station at 4th and Romig in

      a vehicle and walked into the gas station. Officer Elias, who had become

      familiar with Parker’s appearance by looking at his BMV photo, recognized and

      detained Parker. Officer Elias contacted dispatch and learned Parker had never

      been issued a driver’s license. He searched Parker’s pockets and removed

      several small bags of methamphetamine, a pencil sharpener containing small

      bags of methamphetamine, and a digital scale with white residue on it. Parker

      also had his cell phone with him, and Sergeant Zambon, who had maintained

      consistent communication through the Facebook messenger app until Parker

      was arrested, made a phone call from the Kris Johnson profile to Parker’s

      profile, and Parker’s phone rang.




      1
        Sergeant Zambon testified that the Facebook messages referred to 239 South 4th Street as the address he
      provided and that the gas station was at 245 South 4th Street. State’s Exhibit 5 which contains the Facebook
      messages reveals a meeting address of “239 s 4th" followed by a message stating: “Right next to the gas
      station.” State’s Exhibit 5. Another message from Sergeant Zambon under the Kris Johnson profile stated:
      “Park over at shell my downstairs neighbor will rat me to my landlord if I have a guest over.” Id.


      Court of Appeals of Indiana | Opinion 20A-CR-315 | July 30, 2020                                Page 3 of 10
[5]   On March 20, 2019, the State charged Parker with: Count I, dealing in

      methamphetamine as a level 3 felony; Count II, possession of

      methamphetamine as a level 5 felony; Count III, operating a motor vehicle

      without ever receiving a license as a class C misdemeanor; Count IV, dealing in

      methamphetamine as a level 2 felony; and Count V, possession of

      methamphetamine as a level 4 felony. The State also alleged Parker was an

      habitual offender.


[6]   At the jury trial, the court admitted a photo of Parker from the BMV as State’s

      Exhibit 1. Sergeant Withers testified that he went to Parker’s residence on

      Broadway after clearing the scene at the gas station. Sergeant Zambon

      identified these exhibits as photos from Parker’s Facebook profile, and Parker’s

      counsel objected to State’s Exhibits 2, 3, and 4 on the basis of authentication.

      During a sidebar, the prosecutor argued that “I am not offering this to prove the

      content of somebody’s Facebook account, only to explain how Officer Zambon

      familiarized himself with the physical characteristics of the defendant.” Id. at

      79. After some discussion, the court overruled the objection “on the photos,

      because he’s just identifying these photos that he used to later identify the

      Defendant.” Id. at 84. The court admitted State’s Exhibits 2, 3, and 4 over

      objection.


[7]   Sergeant Zambon testified that, once Parker was in custody, he was able to

      determine that the person depicted in the photographs in State’s Exhibits 2, 3,

      and 4 matched Parker’s description, and that “His name, date of birth and

      everything we confirmed.” Id. at 85. He testified that the profile associated

      Court of Appeals of Indiana | Opinion 20A-CR-315 | July 30, 2020          Page 4 of 10
       with Parker sent a message stating he lived on Broadway. When asked if he

       knew the street on which Parker was living at that time, he answered: “I believe

       it was Broadway.” Id. at 91. He testified he made a phone call from the Kris

       Johnson profile to Parker’s profile. When asked if Parker’s phone rang, he

       answered: “I believe it did.” Id. at 93. He identified State’s Exhibit 5 as the

       messages exchanged over Facebook Messenger. The Facebook messages

       contain a profile photo of Parker.


[8]    Parker’s counsel objected to the admission of the Facebook messages and

       argued that the messages should be authenticated. The court found that the

       evidence was “sufficient enough to establish to the Court that there’s a

       reasonable probability that these messages did come from Mr. Michael Parker’s

       Facebook account,” and overruled the objection. Id. at 97.


[9]    The jury found Parker guilty of Counts I, II, and III. Parker waived his right to

       a jury trial on the remaining charges. The court found Parker guilty of Counts

       IV and V and found him to be an habitual offender. The court found that

       Count II merged into Count I, vacated the convictions under Counts II, IV, and

       V, and sentenced Parker to concurrent sentences of twelve years for Count I

       and sixty days for Count III. The court enhanced the sentence for Count I by

       nine years for Parker’s status as an habitual offender.


                                                      Discussion

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

       Facebook messages. Parker argues there was insufficient foundation to support


       Court of Appeals of Indiana | Opinion 20A-CR-315 | July 30, 2020           Page 5 of 10
       admission of the messages. Specifically, he asserts there was no evidence to

       demonstrate that he was the individual with whom Sergeant Zambon was

       communicating.


[11]   The trial court has broad discretion to rule on the admissibility of evidence.

       Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court’s ruling on the

       admission of evidence is generally accorded a great deal of deference on appeal.

       Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh’g denied. We do not reweigh

       the evidence; rather, we consider only evidence that is either favorable to the

       ruling or unrefuted and favorable to the defendant. Beasley v. State, 46 N.E.3d

       1232, 1235 (Ind. 2016).


[12]   Ind. Evidence Rule 901(a) provides: “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(b) provides a list of examples of evidence

       that satisfy the requirement of subsection (a) and includes “[t]estimony that an

       item is what it is claimed to be, by a witness with knowledge” under subsection

       (b)(1), and “[t]he appearance, contents, substance, internal patterns, or other

       distinctive characteristics of the item, taken together with all the circumstances”

       under subsection (b)(4).” Absolute proof of authenticity is not required. Fry v.

       State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. Rather, the

       proponent of the evidence must establish only a reasonable probability that the

       evidence is what it is claimed to be. Pavlovich v. State, 6 N.E.3d 969, 976 (Ind.

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

       Court of Appeals of Indiana | Opinion 20A-CR-315 | July 30, 2020          Page 6 of 10
       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.


[13]   The language in Ind. Evidence Rule 901(b)(4) is similar to Federal Rule of

       Evidence 901(b)(4). In Pavlovich, this Court held:


               In what has been described as a “watershed” opinion with
               respect to authentication of text and email messages, the United
               States District Court of Maryland stated that “[t]his rule is one of
               the most frequently used to authenticate e-mail and other
               electronic records.” Lorraine v. Markel Am. Ins. Co., 241 F.R.D.
               534, 546 (D. Md. 2007). Quoting the official commentary to this
               rule, the Lorraine court observed:

                        “[t]he characteristics of the offered item itself, considered
                        in the light of circumstances, afford authentication
                        techniques in great variety,” including authenticating an
                        exhibit by showing that it came from a “particular person
                        by virtue of its disclosing knowledge of facts known
                        peculiarly to him,” or authenticating “by content and
                        circumstances indicating it was in reply to a duly
                        authenticated” document.

               Id. In other words, “[u]se of this rule often is characterized as
               authentication solely by ‘circumstantial evidence.’” Id.

               The Texas Court of Criminal Appeals has noted the various ways
               in which text or email messages have been adequately
               authenticated as having been written by a party:

                        In some cases, the purported sender actually admitted to
                        authorship, either in whole or in part, or was seen
                        composing it. In others, the business records of an internet
                        service provider or a cell phone company have shown that
                        the message originated with the purported sender’s
       Court of Appeals of Indiana | Opinion 20A-CR-315 | July 30, 2020                 Page 7 of 10
                 personal computer or cell phone under circumstances in
                 which it is reasonable to believe that only the purported
                 sender would have had access to the computer or cell
                 phone. Sometimes the communication has contained
                 information that only the purported sender could be
                 expected to know. Sometimes the purported sender has
                 responded to an exchange of electronic communications in
                 such a way as to indicate circumstantially that he was in
                 fact the author of the particular communication, the
                 authentication of which is in issue. And sometimes other
                 circumstances, peculiar to the facts of the particular case,
                 have sufficed to establish at least a prima facie showing of
                 authentication.

        Tienda [v. State, 358 S.W.3d 633, 640-641 (Tex. Crim. App.
        2012)] (footnotes and citations omitted). See also People v.
        Downin, 357 Ill. App. 3d 193, 293 Ill. Dec. 371, 828 N.E.2d 341,
        350-351 (2005) (holding emails were adequately authenticated as
        being written by defendant where victim personally knew
        defendant, had communicated previously with defendant
        through email, defendant was responsive to victim’s email
        message, and email contained information that would have been
        known exclusively to him; although emails were adequately
        authenticated and admissible, ultimate question of authorship
        was for trier of fact to decide), app. denied; Commonwealth v.
        Amaral, 78 Mass. App. Ct. 671, 941 N.E.2d 1143, 1146-1147
        (2011) (holding emails were adequately authenticated where in
        one, defendant indicated he would be at a certain place at a
        certain time and he in fact appeared at that place and time, and
        in another email he provided a telephone number, which
        investigating officer immediately called and defendant
        answered), rev. denied; In re F.P., 878 A.2d 91, 95 (Pa. Super. Ct.
        2005) (holding instant messages were adequately authenticated as
        having been written by defendant where defendant referred to his
        name and made threats and discussed events related to matters
        about which victim testified); Manuel v. State, 357 S.W.3d 66, 77-
        78 (Tex. App. 2011) (holding text messages were adequately

Court of Appeals of Indiana | Opinion 20A-CR-315 | July 30, 2020            Page 8 of 10
               authenticated as being written by defendant where stalking victim
               recognized the number from which messages originated as
               belonging to defendant, and victim also received voice mail
               messages from number and she recognized the defendant’s
               voice), rev. refused.


       Pavlovich, 6 N.E.3d at 976-977 (footnote omitted).


[14]   The record reveals that the trial court found the photo on the Facebook

       messages was similar to the BMV photo of Parker and “it appears to be the

       same individual in the photo of these Facebook texts.” Transcript Volume III

       at 97. The profile under Parker’s name sent a message stating he lived on

       Broadway, and law enforcement identified an address for Parker on Broadway.

       Further, the messages discussed methamphetamine, meeting at the Shell gas

       station at 4th and Romig, and Parker showed up at that location with

       methamphetamine. Parker was also found in possession of a phone, and

       Sergeant Zambon testified that he maintained consistent communication

       through the Facebook messenger app to the point of Parker’s arrest. After the

       arrest, Sergeant Zambon made a phone call from the Kris Johnson profile to

       Parker’s profile, and the phone found in Parker’s possession rang. The

       Facebook messages show a missed call at 12:55 a.m. and states: “Michael

       missed your call.” State’s Exhibit 5. When asked if the reference in the

       Facebook messages to a missed call at 12:55 a.m. was the call to which he had

       referred earlier when he attempted to call Parker’s Facebook profile, Sergeant

       Zambon answered: “That’s correct. If you look at the messages underneath

       that, there’s no profile photo indicating that the person read the message.”

       Court of Appeals of Indiana | Opinion 20A-CR-315 | July 30, 2020         Page 9 of 10
       Transcript Volume III at 102. We conclude that the evidence was sufficient to

       authenticate the messages as being authored by Parker. Even if the evidence

       was not indisputable proof that Parker wrote the messages, such proof was not

       required. See Fry, 885 N.E.2d at 748. Any lingering doubts about whether

       Parker wrote the messages went to their evidentiary weight, not their

       admissibility. See id. Based upon the record, we cannot say the trial court

       abused its discretion in admitting the messages.


[15]   For the foregoing reasons, we affirm Parker’s convictions.


[16]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-315 | July 30, 2020        Page 10 of 10
