Tracey Herron v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Aug 31 2020, 8:42 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
Tina L. Mann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tracey Herron, August 31, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-3019
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant W.
Appellee-Plaintiff, Hawkins, Judge
Trial Court Cause No.
49G05-1803-F1-9772
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020 Page 1 of 9
Case Summary and Issue
[1] Following a bench trial, Tracey Herron was convicted of three counts of Class
A felony child molesting, one count of Level 1 felony child molesting, and one
count of Level 4 sexual misconduct with a minor. Herron appeals, presenting
the sole issue of whether the trial court abused its discretion by admitting
evidence without proper authentication. Concluding that the trial court did not
abuse its discretion, we affirm.
Facts and Procedural History
[2] Herron is married to Shante Herron. The victim, B.O.,1 is Shante’s first cousin.
B.O. often spent the night at Herron’s home beginning when she was around
ten years old. From the time B.O. was eleven until she was fourteen Herron
subjected B.O. to multiple sexual acts. At the age of fifteen, B.O. decided to tell
another cousin about what Herron had done to her.
[3] Subsequently, B.O. decided that she needed proof of what Herron had done, so
she contacted Herron on Facebook Messenger. B.O. had communicated with
Herron like this in the past. In the Facebook messages, B.O. and Herron
discussed previous sexual encounters between them. B.O. took screenshots of
the conversation. After the Messenger conversation with Herron, B.O. told her
1
The child’s official initials are R.O., however B.O. was used during the trial due to a nickname because the
child and her mother share a first name. We will likewise refer to the victim as B.O.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020 Page 2 of 9
mother, brother, and sister what Herron had done to her. B.O.’s mother then
contacted the police.
[4] On March 22, 2018, the State charged Herron with multiple counts of child
molesting and two counts of sexual misconduct with a minor. Herron waived
his right to a jury trial. At the bench trial, B.O. testified about several times that
Herron molested her while she was staying at his house. When explaining how
she reached out to Herron for “proof,” she stated that she decided to text him
on Facebook Messenger because she and Herron had communicated through
Facebook Messenger in the past. The State offered Exhibit 1, which B.O.
identified as a true and accurate picture of what she knew to be Herron’s
Facebook profile page. The Facebook account is in the name “Tc Herron.”
Index of Exhibits, Volume 1 at 6. Exhibit 1 was admitted without objection.
The State then moved to admit State’s Exhibit 3, screenshots of Facebook
Messenger messages with “Tc Herron.” Id. at 10-13. B.O. testified that she took
the screenshots of the messages at issue and that they were the entirety of the
conversation she initiated with Herron. Herron objected on the grounds that the
“Tc Herron” Facebook account with which B.O. was communicating had not
been authenticated and that the State could not prove that the messages were
sent by him. The trial court took the objection under advisement and did not
admit the exhibit during B.O.’s testimony.
[5] The State again moved to admit Exhibit 3 during the testimony of Detective
Justin Hickman, a child abuse detective with the Indianapolis Metropolitan
Police Department who received the police report made by B.O.’s mother. But
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020 Page 3 of 9
first, Detective Hickman identified State’s Exhibit 2 as a screen shot of a
photograph of Herron that was in the photos section of the Tc Herron
Facebook account. Exhibit 2 was admitted without objection. Detective
Hickman then testified that State’s Exhibit 3 appeared to be a Facebook
Messenger conversation with the Tc Herron Facebook account. When the State
moved to admit Exhibit 3, Herron conceded that the State had shown the
Facebook account belonged to him; therefore his only remaining objection to
State’s Exhibit 3 was that the State had not proven the messages were sent by
him. The State presented evidence that Herron’s “Tc Herron” Facebook
account was linked to his Facebook Messenger account and that Facebook
Messenger allows for private conversations between people to occur. State’s
Exhibit 3 also indicated that B.O. and Tc Herron were “Friends” on Facebook.
Finding that State’s Exhibit 3 was sufficiently authenticated by testimony and
by State’s Exhibits 1 and 2, the trial court admitted Exhibit 3 into evidence over
objection.
[6] Herron was convicted of three counts of Class A felony child molesting, one
count of Level 1 felony child molesting, and one count of Level 4 sexual
misconduct with a minor and ordered to serve an aggregate sentence of seventy
years. Herron now appeals.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020 Page 4 of 9
I. Standard of Review
[7] The trial court has broad discretion in ruling on the admissibility of evidence.
Small v. State, 632 N.E.2d 779, 782 (Ind. Ct. App. 1994), trans. denied. We will
disturb its ruling only upon a showing of abuse of that discretion. Id. An abuse
of discretion may occur if the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before the court, or if the court has
misinterpreted the law. Baxter v. State, 734 N.E.2d 642, 645 (Ind. Ct. App.
2000).
II. Admission of Evidence
[8] Herron argues that Exhibit 3, containing screenshots of Facebook Messenger
messages, was not properly authenticated. Specifically, he contends that there
was no evidence that Herron personally sent the messages. Before evidence can
be admitted, the proponent of the evidence must show that the evidence has
been authenticated. Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009),
trans. denied. The Facebook messages at issue fall within the purview of Indiana
Rule of Evidence 901(a). See Wilson v. State, 30 N.E.3d 1264, 1268 (Ind. Ct.
App. 2015) (stating, with respect to Twitter messages, “[l]etters and words set
down by electronic recording and other forms of data compilation are included
within Rule 901(a)”), trans. denied.
[9] Indiana Rule of Evidence 901(a) provides that “[t]o 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
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020 Page 5 of 9
claims it is.” Absolute proof of authenticity is not required. Fry v. State, 885
N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. All that is required is
evidence establishing “a reasonable probability that an item is what it is claimed
to be[.]” Thomas v. State, 734 N.E.2d 572, 573 (Ind. 2000). Additionally,
authentication of an exhibit can be established by either direct or circumstantial
evidence. Newman v. State, 675 N.E.2d 1109, 1111 (Ind. Ct. App. 1996).
[10] Indiana Evidence Rule 901(b) provides examples of evidence that satisfies the
authentication requirement including “(1) . . . [t]estimony that an item is what it
is claimed to be, by a witness with knowledge” and “(4) . . . [t]he appearance,
contents, substance, internal patterns, or other distinctive characteristics of the
item, taken together with all the circumstances.” Ind. Evidence Rule 901(b)(1),
(b)(4). Indiana Rule of Evidence 901(b)(4) uses language identical to that of
Federal Rule of Evidence 901(b)(4) which is “one of the most frequently used
means to authenticate electronic data, including text messages and emails.”
M.T.V. v. State, 66 N.E.3d 960, 963 (Ind. Ct. App. 2016) (quoting Wilson, 30
N.E.3d at 1268), trans. denied. Our courts have likewise analyzed the
authentication of electronic data via the requirements of Indiana Rule 901(b)(4).
[11] For instance, in Wilson we addressed whether messages sent through a Twitter
social media account had been properly authenticated and therefore, properly
admitted. 30 N.E.3d at 1268. A witness testified that she often communicated
with the defendant on Twitter and had general knowledge of the account. The
account records included pictures depicting the defendant holding guns that
matched the description of those used in the crime with which the defendant
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020 Page 6 of 9
was charged. Moreover, there was testimony that the defendant was affiliated
with two gangs, and the account frequently used terms referring to those gangs,
showing that the author of the messages was affiliated with them. We
concluded that “taken together, the witness testimony identifying the Twitter
account as belonging to [the defendant] and the content posted on the account,
including pictures and gang references, are more than sufficient to authenticate
the Twitter posts as being authored by [the defendant].” Id. at 1269. Therefore,
we held the trial court did not abuse its discretion by admitting the posts.
[12] Subsequently, in Richardson v. State, we addressed the converse: whether the
trial court properly excluded evidence of a Facebook message between a
murder victim and a third party as not properly authenticated. 79 N.E.3d 958,
961 (Ind. Ct. App. 2017), trans. denied. The defendant was accused of murder
after an altercation that resulted in the victim being shot and killed. When
police arrived at the scene, they found a cell phone on the victim’s body.
During the police investigation, a Facebook profile was retrieved from the cell
phone. The name on the Facebook account did not match the name of the
victim; however, a conversation between the Facebook account and a third
party a couple of days prior to the shooting was discovered. The defendant
moved to have the Facebook messages admitted because the conversation, if
the Facebook account could be shown to be the victim’s, suggested that the
owner of the account needed help to rob an unspecified person. The police
detective who discovered the messages testified at trial that he had “no idea
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020 Page 7 of 9
who made the statement or who composed the message.” Id. at 964. Therefore,
the trial court refused to admit the messages.
[13] This court found that, unlike the evidence offered in Wilson, the defendant in
Richardson did not present “any evidence describing distinctive characteristics
that could connect the particular statement” to the victim, “nor did he present
any other indicia of reliability establishing” the victim as the author of the
contested statement. Richardson, 79 N.E.3d at 963-64. Therefore, the trial court
did not err in excluding the Facebook messages as not properly authenticated.
[14] Herron argues that there is no evidence he personally sent the Facebook
messages and that someone else could have sent the messages from the
Facebook account. Citing Richardson, Herron contends that “a [F]acebook
account can be accessed from any cell phone or computer, by any person.”
Brief of Appellant at 11.
[15] Herron conceded that the State had shown the Tc Herron Facebook account
belonged to him. Detective Hickman testified that State’s Exhibit 3 appeared to
be an authentic Facebook Messenger conversation with the Tc Herron account.
B.O. identified Herron’s Facebook page profile and testified that Exhibit 3
showed a conversation between her and Herron. B.O. also testified that they
had communicated in this manner previously. Exhibit 3 indicated that B.O. and
Tc Herron were “Friends” on Facebook at the time of the communication.
Further, both parties to the Facebook messages specifically discussed the sexual
encounters B.O. testified Herron had subjected her to.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020 Page 8 of 9
[16] We conclude that the State established the requisite reasonable probability that
the Facebook messages were authored by Herron. Specifically, witness
testimony and the distinctive characteristics of the exhibit were more than
sufficient to authenticate the Facebook messages as being authored by Herron.
Accordingly, the trial court did not abuse its discretion when it admitted the
screenshots of the Facebook messages.
Conclusion
[17] The trial court did not abuse its discretion by admitting screenshots of Herron’s
Facebook messages.
[18] Affirmed.
May, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-3019 | August 31, 2020 Page 9 of 9