MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 18 2015, 9:13 am 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 James D. Crum Gregory F. Zoeller Cathy M. Brownson Attorney General of Indiana Coots, Henke & Wheeler, P.C. Cynthia L. Ploughe Carmel, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark B. Harsley, II, February 18, 2015
Appellant-Defendant, Court of Appeals Case No. 29A02-1409-CR-661 v. Appeal from the Hamilton Superior State of Indiana, Court Honorable William J. Hughes, Judge Appellee-Plaintiff. Cause No. 29D03-1403-CM-1852
Robb, Judge.
Case Summary and Issue [1] Following a bench trial, Mark B. Harsley II was found guilty of three counts of
invasion of privacy, all Class A misdemeanors. He appeals his convictions,
Court of Appeals of Indiana | Memorandum Decision 29A02-1409-CR-661 | February 18, 2015 Page 1 of 6 raising one issue for our review: whether the State provided sufficient evidence
to sustain Harsley’s three invasion of privacy convictions. Concluding that the
evidence is sufficient, we affirm.
Facts and Procedural History [2] Kimberly Harsley is Harsley’s estranged wife and the mother of his daughter.
An ex parte protection order prohibiting Harsley from contacting Kimberly was
issued in December 2013 and was continued in full force and effect following a
hearing on January 23, 2014.
[3] On January 3, 2014, Kimberly received an email purporting to be from Harsley
that referenced incidents in their past and promised positive changes for the
future. On January 25, 2014, Kimberly received a text message from Harsley
asking her to give him another chance and not divorce him and apologizing for
his previous actions. He also acknowledged that he could go to jail for having
sent the message. Kimberly reported her receipt of the message to the police.
Fishers Police Department Officer Chris Tucker spoke to both Kimberly and
Harsley about the protection order and the message that had been sent. Harsley
claimed his phone might have been hacked and denied sending the message.
Harsley affirmed he understood the protection order and said he would have no
further contact with Kimberly.
[4] On February 13, 2014, another email was sent from Harsley to Kimberly asking
her to open lines of communication between the two. On February 19, 2014,
Court of Appeals of Indiana | Memorandum Decision 29A02-1409-CR-661 | February 18, 2015 Page 2 of 6 one final text message was sent from Harsley to Kimberly, discussing an illness
that Harsley thought was serious enough to kill him and talking about a life
insurance policy he wanted Kimberly to have to help provide for their daughter.
[5] The State charged Harsley with four counts of invasion of privacy, all Class A
misdemeanors, for violating the protection order. At the bench trial, Kimberly
testified that the contents of the communications were of a personal nature,
some of which only she and her estranged husband would know. The trial court
found Harsley violated the protection order for three of the four messages and
entered judgment of conviction for three counts of invasion of privacy.1 Harsley
was sentenced to 365 days in jail for each count, all suspended to probation.
“Any executed sentence in this cause is to be served consecutively but probation
is concurrent.” Appellant’s Appendix at 56. Harsley now appeals his
convictions.
Discussion and Decision I. Standard of Review [6] In sufficiency of evidence claims, the reviewing court does not reweigh
evidence or judge the credibility of the witnesses. Huber v. State, 805 N.E.2d
887, 890 (Ind. Ct. App. 2004). Only the evidence most favorable to the verdict
1 The trial court found Harsley not guilty of the charge stemming from the first email, sent on January 3, 2014, because there was a lack of evidence that Harsley had been properly served with the ex parte protection order before he sent the message.
Court of Appeals of Indiana | Memorandum Decision 29A02-1409-CR-661 | February 18, 2015 Page 3 of 6 is to be considered, along with reasonable and logical inferences that can be
drawn therefrom. Id. Where there is substantial evidence of probative value to
support the ruling of the trial court that the defendant was proven guilty beyond
a reasonable doubt, the conviction will be affirmed. Id.
II. Sufficiency of Evidence [7] Harsley contends the evidence was insufficient because the authenticity of the
messages was proven only by the testimony of Kimberly, the victim. Harsley
suggests that some technological or documentary evidence is required in
conjunction with the testimony to authenticate the email and text messages.
[8] “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(a). This may
be done in a variety of ways. See Evid. R. 901(b). In this case, Rule 901(b)(4) is
particularly relevant. It states that “the appearance, contents, substance,
internal patterns, or other distinctive characteristics of the item, taken together
with all the circumstances” can be used to authenticate evidence. Evid. R.
901(b)(4). Absolute proof of the authenticity of the evidence is not required.
Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. “Evidence
that establishes a reasonable probability that the document is what it is claimed
to be constitutes sufficient authentication or identification.” Id.
[9] In Pavlovich v. State, a case in which the defendant was convicted of child
solicitation and patronizing a prostitute, the sufficiency of evidence was at issue
Court of Appeals of Indiana | Memorandum Decision 29A02-1409-CR-661 | February 18, 2015 Page 4 of 6 because there was no direct evidence that the phone number and email address
that were used to contact the child were actually the defendant’s. 6 N.E.3d 969,
976 (Ind. Ct. App. 2014), trans. denied. The court, however, did not limit its
inquiry to direct evidence and looked to the circumstances surrounding the
phone number, email address, and the conversations had through them. Id.
Equating Indiana Rule of Evidence 901(b)(4) to Federal Rule of Evidence
901(b)(4), this court quoted the following from Lorraine v. Markel Am. Ins.
Co., 241 F.R.D. 534, 546 (D.Md.2007): “‘[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[.]’” Pavlovich, 6 N.E.3d at 976-77. In effect this court
has allowed authentication solely through circumstantial evidence dealing with
the contents of the writing and the fact that a limited number of people would
have knowledge of the content. Id.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 18 2015, 9:13 am 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 James D. Crum Gregory F. Zoeller Cathy M. Brownson Attorney General of Indiana Coots, Henke & Wheeler, P.C. Cynthia L. Ploughe Carmel, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Mark B. Harsley, II, February 18, 2015
Appellant-Defendant, Court of Appeals Case No. 29A02-1409-CR-661 v. Appeal from the Hamilton Superior State of Indiana, Court Honorable William J. Hughes, Judge Appellee-Plaintiff. Cause No. 29D03-1403-CM-1852
Robb, Judge.
Case Summary and Issue [1] Following a bench trial, Mark B. Harsley II was found guilty of three counts of
invasion of privacy, all Class A misdemeanors. He appeals his convictions,
Court of Appeals of Indiana | Memorandum Decision 29A02-1409-CR-661 | February 18, 2015 Page 1 of 6 raising one issue for our review: whether the State provided sufficient evidence
to sustain Harsley’s three invasion of privacy convictions. Concluding that the
evidence is sufficient, we affirm.
Facts and Procedural History [2] Kimberly Harsley is Harsley’s estranged wife and the mother of his daughter.
An ex parte protection order prohibiting Harsley from contacting Kimberly was
issued in December 2013 and was continued in full force and effect following a
hearing on January 23, 2014.
[3] On January 3, 2014, Kimberly received an email purporting to be from Harsley
that referenced incidents in their past and promised positive changes for the
future. On January 25, 2014, Kimberly received a text message from Harsley
asking her to give him another chance and not divorce him and apologizing for
his previous actions. He also acknowledged that he could go to jail for having
sent the message. Kimberly reported her receipt of the message to the police.
Fishers Police Department Officer Chris Tucker spoke to both Kimberly and
Harsley about the protection order and the message that had been sent. Harsley
claimed his phone might have been hacked and denied sending the message.
Harsley affirmed he understood the protection order and said he would have no
further contact with Kimberly.
[4] On February 13, 2014, another email was sent from Harsley to Kimberly asking
her to open lines of communication between the two. On February 19, 2014,
Court of Appeals of Indiana | Memorandum Decision 29A02-1409-CR-661 | February 18, 2015 Page 2 of 6 one final text message was sent from Harsley to Kimberly, discussing an illness
that Harsley thought was serious enough to kill him and talking about a life
insurance policy he wanted Kimberly to have to help provide for their daughter.
[5] The State charged Harsley with four counts of invasion of privacy, all Class A
misdemeanors, for violating the protection order. At the bench trial, Kimberly
testified that the contents of the communications were of a personal nature,
some of which only she and her estranged husband would know. The trial court
found Harsley violated the protection order for three of the four messages and
entered judgment of conviction for three counts of invasion of privacy.1 Harsley
was sentenced to 365 days in jail for each count, all suspended to probation.
“Any executed sentence in this cause is to be served consecutively but probation
is concurrent.” Appellant’s Appendix at 56. Harsley now appeals his
convictions.
Discussion and Decision I. Standard of Review [6] In sufficiency of evidence claims, the reviewing court does not reweigh
evidence or judge the credibility of the witnesses. Huber v. State, 805 N.E.2d
887, 890 (Ind. Ct. App. 2004). Only the evidence most favorable to the verdict
1 The trial court found Harsley not guilty of the charge stemming from the first email, sent on January 3, 2014, because there was a lack of evidence that Harsley had been properly served with the ex parte protection order before he sent the message.
Court of Appeals of Indiana | Memorandum Decision 29A02-1409-CR-661 | February 18, 2015 Page 3 of 6 is to be considered, along with reasonable and logical inferences that can be
drawn therefrom. Id. Where there is substantial evidence of probative value to
support the ruling of the trial court that the defendant was proven guilty beyond
a reasonable doubt, the conviction will be affirmed. Id.
II. Sufficiency of Evidence [7] Harsley contends the evidence was insufficient because the authenticity of the
messages was proven only by the testimony of Kimberly, the victim. Harsley
suggests that some technological or documentary evidence is required in
conjunction with the testimony to authenticate the email and text messages.
[8] “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(a). This may
be done in a variety of ways. See Evid. R. 901(b). In this case, Rule 901(b)(4) is
particularly relevant. It states that “the appearance, contents, substance,
internal patterns, or other distinctive characteristics of the item, taken together
with all the circumstances” can be used to authenticate evidence. Evid. R.
901(b)(4). Absolute proof of the authenticity of the evidence is not required.
Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. “Evidence
that establishes a reasonable probability that the document is what it is claimed
to be constitutes sufficient authentication or identification.” Id.
[9] In Pavlovich v. State, a case in which the defendant was convicted of child
solicitation and patronizing a prostitute, the sufficiency of evidence was at issue
Court of Appeals of Indiana | Memorandum Decision 29A02-1409-CR-661 | February 18, 2015 Page 4 of 6 because there was no direct evidence that the phone number and email address
that were used to contact the child were actually the defendant’s. 6 N.E.3d 969,
976 (Ind. Ct. App. 2014), trans. denied. The court, however, did not limit its
inquiry to direct evidence and looked to the circumstances surrounding the
phone number, email address, and the conversations had through them. Id.
Equating Indiana Rule of Evidence 901(b)(4) to Federal Rule of Evidence
901(b)(4), this court quoted the following from Lorraine v. Markel Am. Ins.
Co., 241 F.R.D. 534, 546 (D.Md.2007): “‘[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[.]’” Pavlovich, 6 N.E.3d at 976-77. In effect this court
has allowed authentication solely through circumstantial evidence dealing with
the contents of the writing and the fact that a limited number of people would
have knowledge of the content. Id.
[10] Kimberly testified that the emails and text messages she received on the
relevant dates were from Harsley. She stated they were from an email address
and a telephone number from which she had communicated with him before
and that the messages contained information known only to her and to Harsley.
That information included dates of his last visit with their daughter, as well as
medical issues he had in the past or was dealing with at the time. Kimberly’s
testimony concerning the origin of the messages and their content provided
Court of Appeals of Indiana | Memorandum Decision 29A02-1409-CR-661 | February 18, 2015 Page 5 of 6 sufficient circumstantial evidence for the trial court to conclude that the emails
and text message were from Harsley.
[11] Once a sufficient degree of authenticity is established to allow admission, any
doubts that remain as to who authored the messages goes only to the weight of
the evidence. Pavlovich, 6 N.E.3d at 979. Harsley’s claim that Kimberly wrote
the messages is one for the judge to weigh, sitting as the trier of fact, and is not
to be reweighed by this court. Considering the evidence in the light most
favorable to the verdict, we hold that it was sufficient for the trial court to find
Harsley guilty of invasion of privacy.
Conclusion [12] The evidence provided to the trial court was sufficient to find Harsley guilty of
violating the order of protection and invading Kimberly’s privacy because
authentication through circumstantial evidence links the messages to him.
Therefore, we affirm Harsley’s convictions.
[13] Affirmed.
Bailey, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 29A02-1409-CR-661 | February 18, 2015 Page 6 of 6