MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any
court except for the purpose of establishing                               Oct 09 2019, 9:00 am

the defense of res judicata, collateral                                          CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Talisha Griffin                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, IN
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Avante L. Robinson,                                      October 9, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-825
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff                                       Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1901-CM-3833



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-825 | October 9, 2019                      Page 1 of 6
                                             Case Summary
[1]   Avante L. Robinson (“Robinson”) appeals his conviction for Invasion of

      Privacy, as a Class A misdemeanor.1 He presents the sole issue of whether the

      trial court abused its discretion by admitting into evidence two screenshot

      pictures. We affirm.



                                Facts and Procedural History
[2]   On November 14, 2018, Robinson’s former girlfriend, L.E., obtained a no-

      contact order prohibiting Robinson from contacting her, her children, or her

      parents. On December 14, 2018, L.E. was working a shift at a convenience

      store and had stepped outside for a cigarette break when she saw Robinson

      approach the store. L.E. immediately put out her cigarette and began to walk

      back inside the store. Robinson called out to her, “Hey, did you know you

      have a warrant out for your arrest?” (Tr. Vol. II, pg. 11.) L.E. went inside,

      locked the door, and called police.


[3]   On January 31, 2019, the State charged Robinson with Invasion of Privacy. He

      was tried in a bench trial on March 14, 2019. L.E. testified that Robinson came

      to her workplace and spoke to her and, shortly after the in-person encounter, he

      attempted to contact her by social media. The trial court found Robinson guilty




      1
          Ind. Code § 35-46-1-15.1(a)(12).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-825 | October 9, 2019   Page 2 of 6
      and sentenced him to 365 days imprisonment, all suspended. Robinson now

      appeals.



                                 Discussion and Decision
[4]   At Robinson’s trial, the State proffered State’s Exhibits 2 and 3, described as

      screenshots made by L.E. to document Robinson’s attempts to contact her by

      Facebook and Snapchat. Robinson’s counsel objected that the exhibits lacked a

      date and did not “show that it’s sent from my client; it has an anonymous name

      on it.” (Tr. Vol. II, pg. 8.) The State responded that L.E. could “testify as to

      who that Facebook belongs to” and the trial court admitted the exhibits over

      Robinson’s objections. Id. at 9. On appeal, he argues that the exhibits were not

      properly authenticated as having been authored by him.


[5]   Admission or exclusion of evidence is within the sound discretion of the trial

      court and we will reverse the decision only if the trial court abused its

      discretion. Wilson v. State, 30 N.E.3d 1264, 1267 (Ind. Ct. App. 2015), trans.

      denied. An abuse of discretion occurs when the trial court’s decision is clearly

      against the logic, facts, and circumstances presented or the court has

      misinterpreted the law. Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App.

      2014), trans. denied.


[6]   To lay a foundation for the admission of evidence, the proponent must show

      that it has been authenticated. Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct.

      App. 2009), trans. denied. Writings, recordings, photographs, and data


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-825 | October 9, 2019   Page 3 of 6
      compilations are included within the authentication requirements of Rule

      901(a). Id. 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.


      “Once this reasonable probability [that the document is what it is claimed to be]

      is shown, any inconclusiveness regarding the exhibit’s connection with the

      events at issue goes to the exhibit’s weight, not its admissibility. Additionally,

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

      evidence.” Pavlovich, 6 N.E.3d at 976, (citing Fry v. State, 885 N.E2d 742, 748

      (Ind. Ct. App. 2008), trans. denied).


[7]   In Wilson, a panel of this Court found the authentication of Twitter messages to

      be sufficient where a witness testified that (1) she often communicated with the

      defendant, Wilson, on Twitter and that he had posted pictures of the two

      online; (2) she recognized the Twitter account as belonging to Wilson, based

      upon her knowledge of the account by its name and the header of the account;

      and (3) Wilson often used terms that were part of the content of the challenged

      messages. 30 N.E.3d at 1268-69.


[8]   Here, there was no such testimony elicited to establish a foundation before

      admission of the challenged exhibits. L.E. simply testified: “One [exhibit] is of

      him contacting me that same day, and the other one is him trying to contact me

      on Snapchat that same day.” (Tr. Vol. II, pg. 8.) We agree with Robinson that

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-825 | October 9, 2019   Page 4 of 6
       the State failed to “produce evidence sufficient to support a finding that the item

       is what the proponent claims it is,” that is, a screenshot of a communication

       emanating from Robinson. Evid. Rule 901(a).


[9]    However, errors in the admission of evidence are to be disregarded as harmless

       error unless they affect the substantial rights of the party. Ind. Trial Rule 61;

       Turben v. State, 726 N.E.2d 1245, 1247 (Ind. 2000). To convict Robinson of

       Invasion of Privacy, as charged, the State was required to establish beyond a

       reasonable doubt that Robinson knowingly violated an order issued under

       Indiana Code Section 35-38-1-30 requiring Robinson to refrain from any direct

       or indirect contact with L.E. See I.C. § 35-46-1-15.1(a)(12); App. Vol. II, pg. 13.


[10]   Apart from testifying about social media communications, L.E. testified that

       Robinson came to her place of employment and spoke to her. The trial court,

       in finding Robinson guilty, referenced only this conduct:


               Whether the initial contact at Village Pantry was intentional or
               unintentional, I think he said something to her. I’m going to find
               you guilty of Invasion of Privacy, as a Class A Misdemeanor.


       (Tr. Vol. II, pg. 23.) Because the trial court relied upon Robinson’s personal

       speech to find Robinson guilty, we cannot say that the admission of his alleged

       social media communications suggesting additional contacts affected his

       substantial rights.


[11]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-825 | October 9, 2019   Page 5 of 6
Najam, J., and May, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-825 | October 9, 2019   Page 6 of 6
