Avante L. Robinson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 9, 2019
• Docket: 19A-CR-825
• Status: Published

Opinion

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