Michael Scott Parker v. State of Indiana ( 2020 )

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,
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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.
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[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
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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
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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
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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
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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
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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.”
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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.
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