MEMORANDUM DECISION FILED Jul 19 2018, 7:54 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court
purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chad A. Montgomery Curtis T. Hill, Jr. Montgomery Law Office Attorney General of Indiana Lafayette, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Tran, July 19, 2018 Appellant-Defendant, Court of Appeals Case No. 79A04-1706-CR-1310 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Thomas H. Busch, Appellee-Plaintiff. Judge
Trial Court Cause No. 79C01-1606-FA-4
Barteau, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 79A04-1706-CR-1310 | July 19, 2018 Page 1 of 7 Statement of the Case [1] James Tran appeals his convictions of nine counts of child molesting, all as 1 2 Class A felonies, and one count of child molesting, as a Class C felony. We
affirm.
Issue [2] Tran presents one issue for our review, which we restate as: whether the trial
court erred by admitting into evidence certain text messages from his wife’s
phone.
Facts and Procedural History [3] James Tran was charged with ten counts of child molesting for the molestation
of three of his adopted daughters. At his trial on these charges, text messages
from the cell phone belonging to his wife were admitted over his objection. A
jury found Tran guilty as charged. The trial court imposed an aggregate sixty-
four-year sentence. This appeal ensued.
Discussion and Decision [4] Tran contends at his trial the trial court erroneously admitted Exhibits 36
through 74, which contain text messages from the phone of his wife, Lori. Tran
1 Ind. Code § 35-42-4-3 (1998), (2007). 2 Ind. Code § 35-42-4-3 (2007).
Court of Appeals of Indiana | Memorandum Decision 79A04-1706-CR-1310 | July 19, 2018 Page 2 of 7 objected to the admission of these exhibits at trial, but the trial court admitted
them over his objection.
[5] The trial court is afforded broad discretion in ruling on the admissibility of
evidence, and we will reverse its ruling only upon a showing of an abuse of that
discretion. Paul v. State, 971 N.E.2d 172, 175 (Ind. Ct. App. 2012). An abuse
of discretion occurs when a decision is clearly against the logic and effect of the
facts and circumstances before the court. Id.
[6] The text exchanges involved in this case begin on June 11, 2016 and continue
to June 15, 2016. From June 11 to June 13 the messages contain statements
such as “I’m fighting this to the end,” “one person can rip this family apart,”
“sweetheart,” and “love you,” as well as discussions of cancelling vacations,
needing to obtain extra money, and hiring an attorney. Ex. 36, 37, 38; see also
generally Ex. 36-57.
[7] However, the tone of the messages changes commencing the afternoon of June
13. Tran texted about getting money for Lori from his 401K, and Lori stated
that she is now “a single mom” and discussed the overwhelming tasks of
rebuilding her and the kids’ lives, having to find a job with good insurance, and
selling Tran’s guns and belongings and their house. Ex. 57, 60, 73, 63, 58, 65-
66. Lori also mentions moving to South Carolina, and, in response, Tran
agrees it would be best for her to go to South Carolina to be “with our
grandkids.” Ex. 61 (emphasis added). In the exchange, Tran also asks Lori if
she thinks S.T. would drop the charges against him. Ex. 68. During the
Court of Appeals of Indiana | Memorandum Decision 79A04-1706-CR-1310 | July 19, 2018 Page 3 of 7 exchange, Tran stated, “Looks like I’m on my own in this” to which Lori
responded, “You’re on your own?.what the heck do you think I’m not on my
own…no job no insurance bills out the butt, my family ripped apart and now
no husband who I trusted and adored for 29 years.” Ex. 69.
[8] In particular, Tran asserts that Exhibits 36 through 74 should not have been
admitted because the text messages were not properly authenticated as having
been written by him. In order to lay a foundation for the admission of
evidence, the proponent of the evidence must show that it has been
authenticated. Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans.
denied. This authentication requirement has been found to apply to the
substantive content of text messages. See id. at 990-91. To satisfy the
authentication requirement, the proponent must produce evidence sufficient to
support a finding that the item is what its proponent claims. See Ind. Evidence
Rule 901(a). Absolute proof of authenticity is not required; rather, the
proponent of the evidence need only establish a reasonable probability that the
item 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
inconclusiveness regarding the item’s connection to the events at issue goes to
the item’s weight, not its admissibility. Id.
[9] Evidence Rule 901(b) provides a non-exhaustive list of examples of evidence
that satisfy the authentication requirement, including testimony, by a witness
with knowledge, that an item is what it is claimed to be. Evid. R. 901(b)(1).
Another example is evidence of the appearance, contents, substance, internal
Court of Appeals of Indiana | Memorandum Decision 79A04-1706-CR-1310 | July 19, 2018 Page 4 of 7 patterns, or other distinctive characteristics of the item, together with the
surrounding circumstances. Evid. R. 901(b)(4).
[10] At trial, Lori identified Exhibits 36 through 74 as comprising text messages
between herself and Tran. Tr. Vol. 3, pp. 52, 80. She explained that she had
allowed the State to photograph the text messages contained on her phone and
that the exhibits were the resulting pictures. Id. at 53, 80. Lori testified that she
and Tran had been married for twenty-nine years, that Tran is and always had
been identified in the contacts of her phone as “James Tran” along with his
photograph, and that she texted him “all of the time” using that contact. Id. at
63, 57-58, 88. Additionally, Lori testified that, based upon the contents of the
messages discussing family matters that were occurring at the time, she knew
the messages were from Tran. Id. at 60-61. Lori also testified to the events
leading up to the text messages, stating that their adopted daughter, S.T., was
kicked out of the house in late March/early April 2016 for her bad attitude and
that Lori subsequently received a call from the Department of Child Services on
or about June 5, 2016. Id. at pp. 71-75.
[11] Lori explained that, due to the situation, Tran had moved out of their house on
June 10, 2016 and was staying nearby at her mother’s house. Id. at 81. In
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MEMORANDUM DECISION FILED Jul 19 2018, 7:54 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK Memorandum Decision shall not be regarded as Indiana Supreme Court Court of Appeals precedent or cited before any court except for the and Tax Court
purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chad A. Montgomery Curtis T. Hill, Jr. Montgomery Law Office Attorney General of Indiana Lafayette, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Tran, July 19, 2018 Appellant-Defendant, Court of Appeals Case No. 79A04-1706-CR-1310 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Thomas H. Busch, Appellee-Plaintiff. Judge
Trial Court Cause No. 79C01-1606-FA-4
Barteau, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 79A04-1706-CR-1310 | July 19, 2018 Page 1 of 7 Statement of the Case [1] James Tran appeals his convictions of nine counts of child molesting, all as 1 2 Class A felonies, and one count of child molesting, as a Class C felony. We
affirm.
Issue [2] Tran presents one issue for our review, which we restate as: whether the trial
court erred by admitting into evidence certain text messages from his wife’s
phone.
Facts and Procedural History [3] James Tran was charged with ten counts of child molesting for the molestation
of three of his adopted daughters. At his trial on these charges, text messages
from the cell phone belonging to his wife were admitted over his objection. A
jury found Tran guilty as charged. The trial court imposed an aggregate sixty-
four-year sentence. This appeal ensued.
Discussion and Decision [4] Tran contends at his trial the trial court erroneously admitted Exhibits 36
through 74, which contain text messages from the phone of his wife, Lori. Tran
1 Ind. Code § 35-42-4-3 (1998), (2007). 2 Ind. Code § 35-42-4-3 (2007).
Court of Appeals of Indiana | Memorandum Decision 79A04-1706-CR-1310 | July 19, 2018 Page 2 of 7 objected to the admission of these exhibits at trial, but the trial court admitted
them over his objection.
[5] The trial court is afforded broad discretion in ruling on the admissibility of
evidence, and we will reverse its ruling only upon a showing of an abuse of that
discretion. Paul v. State, 971 N.E.2d 172, 175 (Ind. Ct. App. 2012). An abuse
of discretion occurs when a decision is clearly against the logic and effect of the
facts and circumstances before the court. Id.
[6] The text exchanges involved in this case begin on June 11, 2016 and continue
to June 15, 2016. From June 11 to June 13 the messages contain statements
such as “I’m fighting this to the end,” “one person can rip this family apart,”
“sweetheart,” and “love you,” as well as discussions of cancelling vacations,
needing to obtain extra money, and hiring an attorney. Ex. 36, 37, 38; see also
generally Ex. 36-57.
[7] However, the tone of the messages changes commencing the afternoon of June
13. Tran texted about getting money for Lori from his 401K, and Lori stated
that she is now “a single mom” and discussed the overwhelming tasks of
rebuilding her and the kids’ lives, having to find a job with good insurance, and
selling Tran’s guns and belongings and their house. Ex. 57, 60, 73, 63, 58, 65-
66. Lori also mentions moving to South Carolina, and, in response, Tran
agrees it would be best for her to go to South Carolina to be “with our
grandkids.” Ex. 61 (emphasis added). In the exchange, Tran also asks Lori if
she thinks S.T. would drop the charges against him. Ex. 68. During the
Court of Appeals of Indiana | Memorandum Decision 79A04-1706-CR-1310 | July 19, 2018 Page 3 of 7 exchange, Tran stated, “Looks like I’m on my own in this” to which Lori
responded, “You’re on your own?.what the heck do you think I’m not on my
own…no job no insurance bills out the butt, my family ripped apart and now
no husband who I trusted and adored for 29 years.” Ex. 69.
[8] In particular, Tran asserts that Exhibits 36 through 74 should not have been
admitted because the text messages were not properly authenticated as having
been written by him. In order to lay a foundation for the admission of
evidence, the proponent of the evidence must show that it has been
authenticated. Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans.
denied. This authentication requirement has been found to apply to the
substantive content of text messages. See id. at 990-91. To satisfy the
authentication requirement, the proponent must produce evidence sufficient to
support a finding that the item is what its proponent claims. See Ind. Evidence
Rule 901(a). Absolute proof of authenticity is not required; rather, the
proponent of the evidence need only establish a reasonable probability that the
item 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
inconclusiveness regarding the item’s connection to the events at issue goes to
the item’s weight, not its admissibility. Id.
[9] Evidence Rule 901(b) provides a non-exhaustive list of examples of evidence
that satisfy the authentication requirement, including testimony, by a witness
with knowledge, that an item is what it is claimed to be. Evid. R. 901(b)(1).
Another example is evidence of the appearance, contents, substance, internal
Court of Appeals of Indiana | Memorandum Decision 79A04-1706-CR-1310 | July 19, 2018 Page 4 of 7 patterns, or other distinctive characteristics of the item, together with the
surrounding circumstances. Evid. R. 901(b)(4).
[10] At trial, Lori identified Exhibits 36 through 74 as comprising text messages
between herself and Tran. Tr. Vol. 3, pp. 52, 80. She explained that she had
allowed the State to photograph the text messages contained on her phone and
that the exhibits were the resulting pictures. Id. at 53, 80. Lori testified that she
and Tran had been married for twenty-nine years, that Tran is and always had
been identified in the contacts of her phone as “James Tran” along with his
photograph, and that she texted him “all of the time” using that contact. Id. at
63, 57-58, 88. Additionally, Lori testified that, based upon the contents of the
messages discussing family matters that were occurring at the time, she knew
the messages were from Tran. Id. at 60-61. Lori also testified to the events
leading up to the text messages, stating that their adopted daughter, S.T., was
kicked out of the house in late March/early April 2016 for her bad attitude and
that Lori subsequently received a call from the Department of Child Services on
or about June 5, 2016. Id. at pp. 71-75.
[11] Lori explained that, due to the situation, Tran had moved out of their house on
June 10, 2016 and was staying nearby at her mother’s house. Id. at 81. In
addition, she explained that neither she nor Tran believed S.T. was being
truthful and that they were very upset with her for making the allegations
against Tran. Id. at 77. At that point in time, Tran was denying any
wrongdoing, Lori was supporting him in his denial, and they were planning to
have Lori retain an attorney to represent Tran. Id. at 80, 82.
Court of Appeals of Indiana | Memorandum Decision 79A04-1706-CR-1310 | July 19, 2018 Page 5 of 7 [12] Lori further testified that circumstances changed on June 13, the day she was
supposed to retain the attorney. Id. at 81-82. Prior to meeting with the
attorney, she spoke on the phone with Tran and told him he “better be telling
me the truth, I’m getting ready to go down there and fight for [him] the biggest
fight of our life and I don’t want to be made a fool out of.” Id. at 82-83. Tran
then told her that “he had done some things to the girls,” and he admitted
touching S.T. as well. Id. at 83. Lori questioned their other two adopted
daughters who acknowledged that Tran had molested them, after which Lori
told Tran she would not use their money to pay for the attorney. Id. at 86. She
also testified that Tran took two distributions from his 401K account to help
with expenses. Id. at 89.
[13] Based on the foregoing, we conclude the State established a reasonable
probability that the text messages were between Lori and Tran. Both Lori’s
testimony to the fact that the text exchanges were between her and Tran and
her testimony of the distinctive characteristics of the messages connecting them
to Tran were more than sufficient to authenticate the text messages as being
authored by Tran.
Conclusion [14] Thus, the trial court did not abuse its discretion by admitting Exhibits 36
through 74 into evidence at trial.
[15] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 79A04-1706-CR-1310 | July 19, 2018 Page 6 of 7 Najam, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A04-1706-CR-1310 | July 19, 2018 Page 7 of 7