MEMORANDUM DECISION Jul 01 2015, 8:39 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Houdek Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.B., July 01, 2015
Appellant-Defendant, Court of Appeals Case No. 49A05-1410-JV-457 v. Appeal from the Marion Superior, Juvenile Division
State of Indiana, Cause No. 49D09-1406-JD-1487 Appellee-Plaintiff Honorable Geoffrey Gaither, Magistrate.
Friedlander, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-JV-457 | July 01, 2015 Page 1 of 6 [1] J.B. appeals an adjudication that would constitute Theft, a class D felony,1 and
Dangerous Possession of a Firearm, a class A misdemeanor2 if committed by an
adult. J.B. presents the following restated issue for our review: Did the juvenile
court abuse its discretion when it admitted social media messages over a claim
of insufficient authentication?
[2] We affirm.
[3] The facts favorable to the judgement are as follows. On April 17, 2014, Nikki
B., age fifteen, and her older brother Anthony, stayed home alone from school
and invited J.B. over to their house. A mutual friend introduced Nikki to J.B.
two weeks earlier and the two communicated through Facebook messages. J.B.
told Nikki his Facebook screen name was “Lilaustin Paperchasin.” Transcript
at 39.
[4] While at the house, J.B., Nikki, and Anthony had a conversation about guns.
The conversation provoked Anthony to show his father’s gun to J.B., which
was hidden in a bedside drawer. Following the conversation, J.B. and Nikki
returned to the living room to watch television and browse Facebook; Anthony
1 The version of the governing statute, i.e., Ind. Code Ann. § 35-43-4-2 (West, Westlaw 2013) in effect at the time this offense was committed classified it as a class D felony. This statute has since been revised and in its current form reclassifies this as a Level 6 felony. See I.C. § 35-43-4-2 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this offense was committed before then, it retains the former classification. 2 Ind. Code § 35-47-10-5. (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015).
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-JV-457 | July 01, 2015 Page 2 of 6 left the house. A few hours later, Nikki walked outside to retrieve the mail, at
the same time she heard the back door of her house open and saw J.B. running
away from the house. Nikki then checked to see if anything was missing from
the house and discovered her father’s gun was no longer in the bedside drawer;
her father later confirmed his gun was missing.
[5] On May 22, 2014, Nikki received the following Facebook messages from J.B.
under the screen name “Lilaustin Paperchasin”:
Aye y’all might as well be coo cuz ya dad pistol long gone lbvs[3] soo yea! Be coo frfr[4] and don’t bring problems otg[5] soo he might as well call it a lost. …if y’all tryna bump let me know cuz ya dad pistol long gone!! Lbvs soo he not getting it back sooo yea its what ever lbvs. [6] Exhibit 1 at 6. On May 31, 2014, Nikki received another Facebook message
from J.B.
Never robbed noone for 200$ lbvs and bitvh [sic] ya dad not getting his pistol pack wtf [6] don’t you understand that mf gone bitch soo when I get better I’ll bump with whoever whenever. [7] Id. at 7. Nikki sent the following response to J.B.,
3 “lbvs” is an abbreviation for: laughing but very serious. www.abbreviations.com. Last viewed, 6/15/2015. 4 “frfr” is an abbreviation for: for real, for real. www.abbreviations.com. Last viewed, 6/15/2015. 5 “otg” is an abbreviation for either: off the ground, or over the gun. www.abbreviations.com. Last viewed, 6/15/2015. 6 “wtf” is an abbreviation for: what the fuck. www.abbreviations.com. Last viewed, 6/15/2015.
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-JV-457 | July 01, 2015 Page 3 of 6 When I invited you in my house and you stole my dad gun and then when I try to message you about it you block me what kind of fucked up shit is that? [8] Id. at 8. J.B. answered, “lol, cuz he not getting his shit back soo yea might as
well take it as a loss.” Id.
[9] On June 5, 2014, Nikki and Anthony went to the police station and met with a
detective who presented them with a photo array. Nikki and Anthony both
identified J.B. as the person who took their father’s gun. On June 17, 2014, the
State filed a delinquency petition against J.B. for theft and dangerous possession
of a firearm. During the delinquency hearing, J.B. objected to the admission of
Exhibit 1, a printout of the Facebook messages, arguing that the State did not
sufficiently authenticate the Facebook messages. The juvenile court ruled the
messages were sufficiently authenticated as belonging to J.B. and entered a true
finding that J.B. committed an act that would constitute theft and dangerous
possession of a firearm if committed by an adult.
[10] On appeal, J.B. contends the trial court abused its discretion when it admitted
evidence from a social media account that was not properly authenticated.
“The admissibility of documents lies within the trial court’s discretion and will
be reversed only upon a showing of abuse of that discretion.” Newman v. State,
675 N.E.2d 1109, 1111 (Ind. Ct. App. 1996). An abuse of discretion occurs
when the trial court’s decision is against the logic and effect of the facts and
circumstances before it. Duncan v. State, 23 N.E.3d 805 (Ind. Ct. App. 2014).
We will not reverse absent a showing of manifest abuse of discretion resulting
in the denial of a fair trial. Id.
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-JV-457 | July 01, 2015 Page 4 of 6 [11] “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. Evid. R. 901. Testimony that an
item is what it is claimed to be, by a witness with knowledge, is sufficient to
authenticate an item of evidence. Id. Distinctive characteristics like “the
appearance, contents, substance, [and] internal patterns” taken together with all
the circumstances is another way to authenticate an item of evidence. Id.
[12] Proof of authenticity is not required; authentication of an exhibit can be
established by either direct or circumstantial evidence. Newman v. State, 675
N.E.2d. 1109. “Any inconclusiveness regarding the exhibit’s connection with
the events at issue goes to the exhibit’s weight, not its admissibility.” Pavlovich
v.
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MEMORANDUM DECISION Jul 01 2015, 8:39 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Houdek Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
J.B., July 01, 2015
Appellant-Defendant, Court of Appeals Case No. 49A05-1410-JV-457 v. Appeal from the Marion Superior, Juvenile Division
State of Indiana, Cause No. 49D09-1406-JD-1487 Appellee-Plaintiff Honorable Geoffrey Gaither, Magistrate.
Friedlander, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-JV-457 | July 01, 2015 Page 1 of 6 [1] J.B. appeals an adjudication that would constitute Theft, a class D felony,1 and
Dangerous Possession of a Firearm, a class A misdemeanor2 if committed by an
adult. J.B. presents the following restated issue for our review: Did the juvenile
court abuse its discretion when it admitted social media messages over a claim
of insufficient authentication?
[2] We affirm.
[3] The facts favorable to the judgement are as follows. On April 17, 2014, Nikki
B., age fifteen, and her older brother Anthony, stayed home alone from school
and invited J.B. over to their house. A mutual friend introduced Nikki to J.B.
two weeks earlier and the two communicated through Facebook messages. J.B.
told Nikki his Facebook screen name was “Lilaustin Paperchasin.” Transcript
at 39.
[4] While at the house, J.B., Nikki, and Anthony had a conversation about guns.
The conversation provoked Anthony to show his father’s gun to J.B., which
was hidden in a bedside drawer. Following the conversation, J.B. and Nikki
returned to the living room to watch television and browse Facebook; Anthony
1 The version of the governing statute, i.e., Ind. Code Ann. § 35-43-4-2 (West, Westlaw 2013) in effect at the time this offense was committed classified it as a class D felony. This statute has since been revised and in its current form reclassifies this as a Level 6 felony. See I.C. § 35-43-4-2 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this offense was committed before then, it retains the former classification. 2 Ind. Code § 35-47-10-5. (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015).
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-JV-457 | July 01, 2015 Page 2 of 6 left the house. A few hours later, Nikki walked outside to retrieve the mail, at
the same time she heard the back door of her house open and saw J.B. running
away from the house. Nikki then checked to see if anything was missing from
the house and discovered her father’s gun was no longer in the bedside drawer;
her father later confirmed his gun was missing.
[5] On May 22, 2014, Nikki received the following Facebook messages from J.B.
under the screen name “Lilaustin Paperchasin”:
Aye y’all might as well be coo cuz ya dad pistol long gone lbvs[3] soo yea! Be coo frfr[4] and don’t bring problems otg[5] soo he might as well call it a lost. …if y’all tryna bump let me know cuz ya dad pistol long gone!! Lbvs soo he not getting it back sooo yea its what ever lbvs. [6] Exhibit 1 at 6. On May 31, 2014, Nikki received another Facebook message
from J.B.
Never robbed noone for 200$ lbvs and bitvh [sic] ya dad not getting his pistol pack wtf [6] don’t you understand that mf gone bitch soo when I get better I’ll bump with whoever whenever. [7] Id. at 7. Nikki sent the following response to J.B.,
3 “lbvs” is an abbreviation for: laughing but very serious. www.abbreviations.com. Last viewed, 6/15/2015. 4 “frfr” is an abbreviation for: for real, for real. www.abbreviations.com. Last viewed, 6/15/2015. 5 “otg” is an abbreviation for either: off the ground, or over the gun. www.abbreviations.com. Last viewed, 6/15/2015. 6 “wtf” is an abbreviation for: what the fuck. www.abbreviations.com. Last viewed, 6/15/2015.
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-JV-457 | July 01, 2015 Page 3 of 6 When I invited you in my house and you stole my dad gun and then when I try to message you about it you block me what kind of fucked up shit is that? [8] Id. at 8. J.B. answered, “lol, cuz he not getting his shit back soo yea might as
well take it as a loss.” Id.
[9] On June 5, 2014, Nikki and Anthony went to the police station and met with a
detective who presented them with a photo array. Nikki and Anthony both
identified J.B. as the person who took their father’s gun. On June 17, 2014, the
State filed a delinquency petition against J.B. for theft and dangerous possession
of a firearm. During the delinquency hearing, J.B. objected to the admission of
Exhibit 1, a printout of the Facebook messages, arguing that the State did not
sufficiently authenticate the Facebook messages. The juvenile court ruled the
messages were sufficiently authenticated as belonging to J.B. and entered a true
finding that J.B. committed an act that would constitute theft and dangerous
possession of a firearm if committed by an adult.
[10] On appeal, J.B. contends the trial court abused its discretion when it admitted
evidence from a social media account that was not properly authenticated.
“The admissibility of documents lies within the trial court’s discretion and will
be reversed only upon a showing of abuse of that discretion.” Newman v. State,
675 N.E.2d 1109, 1111 (Ind. Ct. App. 1996). An abuse of discretion occurs
when the trial court’s decision is against the logic and effect of the facts and
circumstances before it. Duncan v. State, 23 N.E.3d 805 (Ind. Ct. App. 2014).
We will not reverse absent a showing of manifest abuse of discretion resulting
in the denial of a fair trial. Id.
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-JV-457 | July 01, 2015 Page 4 of 6 [11] “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. Evid. R. 901. Testimony that an
item is what it is claimed to be, by a witness with knowledge, is sufficient to
authenticate an item of evidence. Id. Distinctive characteristics like “the
appearance, contents, substance, [and] internal patterns” taken together with all
the circumstances is another way to authenticate an item of evidence. Id.
[12] Proof of authenticity is not required; authentication of an exhibit can be
established by either direct or circumstantial evidence. Newman v. State, 675
N.E.2d. 1109. “Any inconclusiveness regarding the exhibit’s connection with
the events at issue goes to the exhibit’s weight, not its admissibility.” Pavlovich
v. State, 6 N.E.3d 969, 976 (Ind. Ct. App.) trans. denied.
[13] It is true Nikki never saw J.B. type the messages or use the “Lilaustin
Paperchasin” Facebook account. It is also true that anyone with a computer
and internet access could have created a profile in the likeness of J.B. and
communicated with Nikki through messaging. Nevertheless, we can infer from
circumstantial evidence that the “Lilaustin Paperchasin” Facebook account
belongs to J.B. and he messaged Nikki on May 22, and May 31, 2014.
[14] Nikki met J.B. through a friend two weeks before the incident occurred. J.B.
provided Nikki with the screen name to his Facebook account, “Littleaustin
Paperchasin” and the icon attached to the screen name resembles J.B. Nikki
testified that the messages she received from “Lilaustin Paperchasin” were
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-JV-457 | July 01, 2015 Page 5 of 6 written by J.B. and contained a detailed description of the events that took
place on April 17, 2014. Indeed, the sender of the Facebook messages knew the
gun stolen from Nikki’s house was a pistol and knew it belonged to Nikki’s
father. This circumstantial evidence permits a reasonable belief that the
Facebook messages were written by J.B. We therefore conclude that the
juvenile court did not abuse its discretion in concluding the Facebook messages
in Exhibit 1 were sufficiently authenticated.
[15] Judgment affirmed.
Baker, J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1410-JV-457 | July 01, 2015 Page 6 of 6