MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                     Mar 15 2018, 8:51 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.                                      Joseph K. Etling
Attorney General of Indiana                              Matthew A. Sheehan
                                                         Smock & Etling
Larry D. Allen                                           Terre Haute, Indiana
Deputy Attorney General
Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        March 15, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         84A01-1709-CR-2113
        v.                                               Appeal from the Vigo Superior
                                                         Court
Aaron M. Sullivan,                                       The Honorable Michael R. Rader,
Appellee-Defendant                                       Judge
                                                         Trial Court Cause No.
                                                         84D05-1511-F3-2789



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018             Page 1 of 15
                                             Case Summary
[1]   After the State charged Aaron M. Sullivan with level 3 felony rape, he filed a

      motion to suppress the State’s video evidence. The trial court granted his

      motion, and the State appeals, arguing that the trial court’s conclusion that the

      video’s authenticity is unsupported by sufficient evidence is contrary to law.

      Concluding that the evidence and all reasonable inferences arising therefrom do

      not lead to but one conclusion that is opposite that reached by the trial court,

      we affirm.


                                 Facts and Procedural History
[2]   In October 2015, Sullivan met nineteen-year-old A.O. On October 9, A.O. and

      her friend hung out with Sullivan in his apartment. They smoked marijuana

      together. Sullivan offered A.O. what he represented was Klonopin. A.O.

      agreed to buy some and ingested it. A.O. and her friend spent the night at

      Sullivan’s. Before going to sleep, A.O. borrowed a pair of black-and-blue plaid

      pajama pants from Sullivan.


[3]   On October 10, 2017, Sullivan’s girlfriend Rebecca Latta sent A.O. three video

      files from her cell phone to A.O.’s cell phone. The same day, A.O. went to a

      nearby hospital to report that Sullivan raped her. She was examined by the

      hospital staff and interviewed by Detective Jonathan Vandevender. She gave

      the police her cell phone, and the police downloaded three video files from

      A.O.’s cell phone. She also gave the police the pajama pants that she had

      allegedly borrowed from Sullivan and the underwear that she had worn the


      Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018   Page 2 of 15
      evening before. As part of the investigation, police interviewed Latta. Police

      obtained a warrant to search Sullivan’s apartment but were unable to find his

      cell phone.


[4]   On November 12, 2015, the State charged Sullivan with level 3 felony rape. In

      May 2017, Sullivan filed a motion to suppress the State’s video evidence,

      arguing that it was inadmissible because the State was unable to authenticate

      the video files. In June 2017, the trial court held a hearing on the motion and

      conducted an in-camera review of the video evidence Sullivan sought to

      suppress, consisting of three video files saved to a CD. State’s Ex. 1. The video

      files depict a close-up view of someone’s finger inserted in a woman’s vagina

      and reveal that the woman was wearing a pair of teal and white thong

      underwear and a pair of black-and-blue plaid pajama pants. The video files do

      not bear any date or time stamps or other information regarding their origin, do

      not contain audio, and do not reveal any person’s face.


[5]   At the suppression hearing, the State introduced the testimony of Latta, A.O.

      and Detective Vandevender. Latta testified that on October 9, 2015, she went

      to Sullivan’s apartment and found him asleep on the couch and A.O. and her

      friend asleep in Sullivan’s bed. Tr. Vol. 1 at 11-12. Latta had been dating

      Sullivan for about two years. She recognized his cell phone and took it because

      she was suspicious. She viewed the two newest video files on Sullivan’s cell




      Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018   Page 3 of 15
      phone.1 Id. at 12. She sent the videos to her cell phone via text message, but

      because the files were so large, she split the videos into segments. Id. at 14. On

      October 10, 2015, Latta returned to Sullivan’s apartment and found him in bed

      with A.O. A.O.’s friend was gone. Latta showed one of the videos that she

      had retrieved from Sullivan’s cell phone to A.O., and A.O. recognized the

      underwear as her own. Id. A.O. did not remember the incident. Latta sent

      the video, separated into three separate files, to A.O.’s cell phone. Id. at 13-14.

      Latta believed that when she split the video into three separate files, she had not

      cut anything out or otherwise altered the video. Id. at 24. Latta confronted

      Sullivan with the video. She testified that he was “very upset[,]” “didn’t

      remember it[,]” and “didn’t believe” that the video “was real[,]” that it “was on

      his phone[,]” or that the man in the video “was him.” Id. at 15. And she

      testified that Sullivan threatened to kill himself. Id.


[6]   Additionally, Latta testified that she had watched the video files on State’s

      Exhibit 1, but she was “unsure” whether the three video files were from the

      video files that she had sent to A.O. Id. at 14. She testified that the quality of

      the videos was very poor and that she could not testify under oath that the

      video files on State’s Exhibit 1 were from the same video that she saw on

      Sullivan’s cell phone in October 2015. Id. at 20, 26. She testified that when she

      viewed the video on Sullivan’s cell phone, she was unable to identify any of the

      individuals in the video and was unable to tell whether it had been sent to



      1
          When Latta was interviewed by the police, she reported that she had found one video.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018      Page 4 of 15
      Sullivan’s phone or produced by it, how long it had been on Sullivan’s phone,

      or the date or location of the video. Id. at 21, 25. She testified that the cell

      phone she had in October 2015 was broken, she no longer had it, and the police

      had never asked for it.


[7]   A.O. testified that on October 9, 2015, she and her friend went to Sullivan’s

      apartment and smoked marijuana with him, and she took Klonopin.2 She

      borrowed a pair of black-and-blue plaid pajama pants from Sullivan to sleep in.

      She testified that from that point she did not remember anything that happened

      until Latta woke her up the next morning. During the evening of October 10,

      2015, Latta called A.O. and told her that she had found a video on Sullivan’s

      cell phone that showed that he had done something to A.O. Id. at 29. Latta

      sent her the video in three parts. Id. at 37-38. A.O. testified that she had

      watched State’s Exhibit 1 and that the video files were the same ones that she

      had received from Latta in October 2015. Id. at 30. She testified that it was her

      underwear in the video and that the pajama pants were the ones she had

      borrowed from Sullivan the night of October 9, 2015. Id. at 30-31. She testified

      that the underwear she had on were not especially unique but could be

      purchased at Victoria’s Secret. Id. at 33. She also testified that the only night

      that she wore black-and-blue plaid pajama pants was the night that she stayed

      over at Sullivan’s. Id. at 39. A.O. testified that her friends had told her that she




      2
        A.O. testified that she did not drink alcohol that night, but Detective Vandevender testified that when he
      interviewed her in October 2015, she told him that she had been drinking.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018             Page 5 of 15
      had spent another night with Sullivan before October 9, 2015, but she did not

      remember it. Id. at 35.


[8]   Detective Vandevender testified that he viewed the video files in State’s Exhibit

      1 for the first time after another police officer downloaded them from A.O.’s

      phone to a flash drive. Id. at 45. He testified that he was unable to identify any

      person in the videos or determine when or where the videos were produced,

      and could not say whether the videos had been altered from their original state.

      Id. at 48. He also testified that the police department was not in possession of

      cell phones belonging to A.O., Latta, or Sullivan, and that he “never actually

      saw [the videos] on a phone.” Id. at 45. However, he testified that the video

      files on State’s Exhibit 1 were true and accurate copies of the video files he

      viewed on the flash drive that were downloaded from A.O.’s cell phone in

      October 2015.


[9]   In August 2017, the trial court issued an order granting Sullivan’s motion to

      suppress. The trial court found as follows:


              The Court reviewed the videos offered by the State in camera. ….
              The faces of the persons in the video are not seen. There is no
              audio. The videos are very small and pixelate when enlarged.
              The cellphone that originally took the videos is not available.


              The alleged victim in this case cannot identify the male as
              [Sullivan]. The alleged victim says that the pajama bottoms on
              the person in the video are the same pajamas she had on that
              night. The pajamas described allegedly belonged to [Sullivan].
              The alleged victim also reports that the underwear on the person
              in the video are the same underwear she had on that night. She
      Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018   Page 6 of 15
        further reports that the pudenda of the person in the video are
        shaved. She also shaves her pudenda.


        ….


        On cross-examination, Rebecca Latta admitted that she reported
        only one video in her deposition taken earlier. She further
        admitted that she is not sure if the videos are the same as what
        she saw in 2015. …. She could not identify anyone in the video.
        She could not determine the date on the video.


        In this case no one can say the photographs [sic] were taken on a
        particular night or in what place. The only link to the alleged
        victim is her testimony about her underwear and the pajama
        bottoms, both being mass produced and fungible items of
        clothing.


        In respect to the issue of who took the video images, the Court
        finds no credible foundation can be established. The videos then
        must speak for themselves.


        This Court finds that it is NOT convinced of the authenticity of
        the images to a relative degree of certainty. ….


        …. Further the clothing in the video is non-descript and fungible.
        Thousands of such items of clothing are sold every year. There
        simply is insufficient evidence of the validity and integrity of the
        video to allow it to be offered in a criminal proceeding.




Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018   Page 7 of 15
       Appealed Order at 2-3.3 This appeal ensued.


                                          Discussion and Decision
[10]   The State seeks reversal of the order granting Sullivan’s motion to suppress,

       arguing that the trial court erred in finding that the evidence was insufficient to

       authenticate the video evidence. When, as here, the State appeals from the

       grant of a motion to suppress, it “‘appeals from a negative judgment and must

       show the trial court’s ruling was contrary to law.’” State v. Terrell, 40 N.E.3d

       501, 504 (Ind. Ct. App. 2015) (quoting State v. Augustine, 851 N.E.2d 1022, 1025

       (Ind. Ct. App. 2006)). A judgment is contrary to law “‘only when the evidence

       is without conflict and all reasonable inferences lead to a conclusion opposite

       that reached by the trial court.’” Id. at 504-05 (quoting Augustine, 851 N.E.2d at

       1025). In our review, we consider only the evidence most favorable to the

       judgment, and we will not reweigh the evidence or judge witness credibility. Id.

       at 505.




       3
          After the suppression hearing, the State filed its brief in support of its objection to Sullivan’s motion to
       suppress with affidavits and exhibits. Sullivan filed a motion to strike the affidavits and exhibits, which the
       trial court did not rule on. The State claims that the trial court’s silence on the matter indicates that
       Sullivan’s motion to strike was deemed denied. However, the case that the State cites in support of this claim
       involved a motion to correct error, and a trial court’s ruling on a motion to correct error is specifically
       governed by Indiana Trial Rule 53.3. Trial Rule 53.3 does not apply to other motions. Although the State
       claims that the trial court relied on the affidavits in its order granting Sullivan’s motion to suppress, the State
       does not direct us to the facts in the order that are based on the affidavits or cite the portions of the affidavits
       upon which it claims the trial court relied. We decline to base our review on evidence not relied on by the
       trial court. We note that the trial court’s decision to suppress the video evidence is a preliminary, pretrial
       decision. If the State develops additional evidence to authenticate the video files, such evidence may be
       submitted to the trial court at trial, at which time the trial court would have an opportunity to reconsider the
       admissibility of State’s Exhibit 1.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018                  Page 8 of 15
[11]   Indiana Evidence Rule 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.” “The foundation required for admitting a photograph [or a video]

       depends on its use at trial.” Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014),

       cert. denied (2015). Photos and videos may be admitted for demonstrative

       purposes or as substantive evidence. Id.; see also McHenry v. State, 820 N.E.2d

       124, 128 (Ind. 2005) (stating that videotapes may be admitted as substantive

       evidence). “Demonstrative evidence is evidence offered for the purpose of

       illustration and clarification.” Underly v. Advance Mach. Co., 605 N.E.2d 1186,

       1195 (Ind. Ct. App. 1993), trans. denied. An adequate foundation for

       demonstrative evidence requires “‘testimony that [it] accurately depict[s] the

       scene or occurrence as it appeared at the time in question.’” Knapp, 9 N.E.3d at

       1282 (quoting Smith v. State, 491 N.E.2d 193, 195 (Ind. 1986)). Here, however,

       the State sought to admit the video files as substantive evidence that A.O. was

       the woman in the video and the fingers were Sullivan’s. When photos and

       videos are offered as substantive evidence, that is, as “‘silent witnesses as to

       what activity is being depicted …. the foundational requirements are vastly

       different than the foundational requirements for demonstrative evidence.’” Id.

       (quoting Smith, 491 N.E.2d at 196) (brackets and ellipsis omitted); see also

       Bergner v. State, 397 N.E.2d 1012, 1017 (Ind. Ct. App. 1979) (adopting silent

       witness theory).




       Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018   Page 9 of 15
[12]   To establish an adequate foundation for photos and videos that are to be used

       as substantive evidence, “‘[t]he witness is not required to testify that the

       photograph [or video] is an accurate representation of the scene as it

       appeared.’” Knapp, 9 N.E.3d at 1282 (quoting Smith, 491 N.E.2d at 196).

       Nevertheless, “[f]or evidence to be admitted for that purpose, there must be a

       strong showing of authenticity and competency, including proof that the

       evidence was not altered.” McCallister v. State, No. 87S00-1609-LW-497, 2018

       WL 897398, at *5 (Ind. Feb. 15, 2018). To establish an adequate foundation,

       “the witness ‘must give identifying testimony of the scene that appears in the

       photographs’ or the videos sufficient to persuade ‘the trial court of their

       competency and authenticity to a relative certainty.’” Knapp, 9 N.E.3d at 1282

       (quoting Smith, 491 N.E.2d at 196 and Torres v. State, 442 N.E.2d 1021, 1024-25

       (Ind. 1982)). However, our courts have been reluctant to set out “‘extensive,

       absolute foundation requirements.’” Wise v. State, 26 N.E.3d 137, 141 (Ind. Ct.

       App. 2015) (quoting Bergner, 397 N.E.2d at 1017).


[13]   The State asserts that there was sufficient evidence to lay an adequate

       foundation for the video files based on the following: A.O. testified that she

       borrowed a pair of black-and-blue plaid pajamas from Sullivan that night; Latta

       testified that the video she viewed on Sullivan’s cell phone was the most recent

       video and she found the video the next day; A.O. identified her underwear and

       the pajama bottoms in the video; and the pudenda in the video was shaved, and

       A.O. shaved her pudenda. The State posits that “the combination of A.O.’s

       underwear, Sullivan’s pajama pants, and the timing of the video on Sullivan’s


       Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018   Page 10 of 15
       cellphone” give rise to only one logical conclusion, that “A.O. was the woman

       in the video taken the night before and the video accurately depicted Sullivan

       violating A.O. while she was unconscious.” Appellant’s Br. at 10. We

       acknowledge that the combination of A.O.’s underwear and Sullivan’s black-

       and-blue plaid pajama pants might support a reasonable inference that A.O. is

       the woman in the video, but the State was required to establish the competency

       and authenticity of the video files to a relative certainty. See Knapp, 9 N.E.3d at

       1282. The State contends that the evidence for authentication in this case is

       similar to that in Wise, 26 N.E.3d 137, in which another panel of this Court

       concluded that video from a cell phone was properly admitted as substantive

       evidence. We do not agree.


[14]   In Wise, Wise’s wife M.B. found three videos on Wise’s cell phone, one

       showing him having sexual intercourse with her, and two depicting his attempts

       to engage in oral sex with her. M.B. had no recall of these incidents. She used

       a handheld video camera to record playback of the videos she found on Wise’s

       cell phone, and she changed the filenames of the videos. The State charged

       Wise with rape and criminal deviate conduct. By the time of trial, Wise no

       longer possessed his cell phone. Over Wise’s objection, the trial court admitted

       M.B.’s recordings of his cell phone videos. Wise was convicted.


[15]   On appeal, Wise argued that the trial court abused its discretion in admitting

       M.B.’s recordings because the State had failed to establish an adequate

       foundation. The Wise court disagreed, explaining as follows:



       Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018   Page 11 of 15
        Concerning the integrity of the re-recordings themselves, our
        review of the record reveals that M.B. testified concerning the
        circumstances under which she found and recorded the video
        from the phone. M.B. testified that the phone from which the
        video was recorded belonged to Wise and that the screensaver on
        the phone displayed a picture of the couple’s daughter. Wise
        testified at various points that the phone belonged to him or
        looked like one that belonged to him. M.B.’s renaming of the
        files did not erase time and date information for the videos;
        indeed, our review of the video recordings revealed that the date
        and time for the videos was displayed beneath the new names M.B.
        gave the recordings. M.B.’s testimony established a chain of custody
        for the VHS tape on which she made the recording of the videos
        from Wise’s cell phone, as well as for the DVD onto which a
        neighbor copied the contents of the tape. And M.B. testified at trial
        that the videos played at trial were the same ones she had recorded,
        which were in turn in the same condition as she found them
        when she first played them on October 22, 2008.


        Concerning the actual production of the recordings, M.B.
        testified that when she told Wise about her discovery, he did not deny
        that he made the recordings. Correspondence between M.B. and
        Wise included Wise’s statement to M.B. that she “has the film.”
        Miller, a friend of Wise and M.B., testified that in a phone
        conversation Wise told her that he had been drugging M.B. for
        sex and recording his sex acts, and would later watch the videos.
        And, crucially, M.B. unambiguously identified herself and Wise as
        having been depicted in their home in the recordings.


Id. at 142 (citations omitted) (emphases added). Thus, the videos contained

time and date information, M.B. testified that the videos at trial were in the

same condition as she found them and her testimony established a chain of

custody from their source, Wise did not deny making the videos, and M.B.


Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018   Page 12 of 15
       unambiguously identified the individuals in the videos as herself and Wise and

       the location of the videos as their home.


[16]   Also instructive is our supreme court’s recent decision in McCallister affirming

       the trial court’s admission of hotel surveillance video as a silent witness. There,

       McCallister was convicted of murder and conspiracy to commit murder. A

       hotel surveillance video depicted the hotel lobby before and after the time of the

       victim’s murder. The surveillance video contained a time-and-date stamp on

       the bottom-left corner of the video. Shortly before the murder, the surveillance

       video showed the victim leaving the hotel with three other people. Shortly after

       the murder, the video showed the same three people returning to the hotel with

       McCallister but without the victim. On appeal, McCallister argued that the

       State failed to present an adequate foundation for admitting the surveillance

       video because the hotel’s general manager who authenticated it did not begin

       working at the hotel until seven months after the murder. Our supreme court

       found that the State had presented an adequate foundation based on the

       following:


               Although the manager was not able to say with certainty that the
               DVD contained accurate footage of the lobby on February 17, he
               did authenticate it in several important respects. He verified the
               time-and-date-stamp system was accurate and attuned to “standard
               accepted time” and was reset “in January each year” to ensure
               accuracy. He “recognize[d] every piece of furniture and some of the
               people working” in the lobby. And he said the surveillance system is
               always on, and the videos are backed up to “the cloud”—meaning they
               are saved to external servers accessible to the hotel’s managers
               through the internet. These verifications, along with the officer’s

       Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018   Page 13 of 15
                  testimony concerning chain of custody, provide sufficient
                  grounds for the trial court to have admitted the video.


       McCallister, 2018 WL 897398, at *6 (emphases added). Thus, there was

       evidence to establish the time, date, and location of the video as well as a chain

       of custody from the source of the video.


[17]   The evidence in this case does not compare to that in Wise or McCallister. The

       video files in State’s Exhibit 1 allegedly came from Sullivan’s cell phone and

       were sent from his phone to Latta’s cell phone and then from her phone to

       A.O.’s cell phone. However, Latta testified that when she watched the video

       on Sullivan’s cell phone in October 2015, she could not determine when or

       where the video was taken or how long the video had been on his phone, nor

       could she identify the people in the video. While the evidence might support a

       reasonable inference that A.O. was one of the people in the video, there is no

       evidence that identifies Sullivan as the other individual depicted. 4 In addition,

       Latta testified that she was unable to confirm that the video files in State’s

       Exhibit 1 came from the video that she saw on Sullivan’s cell phone in October

       2015 and that she was unsure whether the video files on State’s Exhibit 1 were

       from the video files that she sent to A.O. Further, we also note that, unlike

       Wise, Sullivan denied any connection to the video when Latta confronted him

       with it. Accordingly, we cannot say that the evidence leads to but one




       4
           In fact, Sullivan was not the only person viewed in bed with A.O. that evening.



       Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018   Page 14 of 15
       conclusion opposite that reached by the trial court. Therefore, we affirm the

       order granting Sullivan’s motion to suppress.


[18]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1709-CR-2113 | March 15, 2018   Page 15 of 15
