Commercial Litigation and Arbitration

Texts Authenticated as Def’s: (1) Police Took 2 Phones from Room Def. & Girlfriend Rented, (2) One Listed Girlfriend as Frequent Contact, (3) Def. ID’ed Self in Texts on That Phone & (4) Selfie of Def. Was on Phone — All Texts=Admissions

Roberts v. State, 2017 Ind. App. Unpub. LEXIS 1024 (Ind. Ct. App. July 31, 2017):

P1 A jury convicted Ronnell Roberts of level 2 felony dealing in cocaine and class A misdemeanor dealing in marijuana. Roberts now appeals, challenging the admission of certain evidence at trial as well as the sufficiency of the evidence to support his convictions. Concluding that he has failed to establish an abuse of discretion in the trial court's admission of evidence and finding the evidence sufficient to support his convictions, we affirm.

Facts and Procedural History

P2 The facts most favorable to the verdicts are as follows. In May 2016, Roberts and his wife Hollie rented a room in a single-family residence owned by Paula Lamb. Two weeks later, Logansport police received an anonymous complaint concerning drug activity and suspicious odors [*2]  emanating from the house. Officers James Klepinger and Jason Shideler went to the house and spoke with Lamb, who invited them in and informed them that she lived there with her daughter and her daughter's fiancé and that she had rented a room to "Nello" and Hollie. Tr. at 33, 38-39, 57-58, 135, 142. Per the officers' request, Lamb escorted them to the rented room upstairs. As they approached the room, they detected the odor of marijuana. When Lamb opened the door, the odor was significantly stronger. Burnt marijuana cigarette butts were on a plate on the headboard of the bed, and Roberts and Hollie were sitting on the bed. Roberts reported that he had been renting the room for about two weeks.

P3 Police searched the room and found several personal items, including clothing, identification, a handbag, and two cell phones. They also discovered two velvet bags inside a dresser drawer. Inside the purple bag, they found nine individually knotted baggies, four of which were later found to contain an equally sized off-white rock substance, and five of which contained even smaller portions of the same substance. In the same purple bag, police found a separate baggie containing a large rock [*3]  of the same substance. Subsequent testing showed the rocks to be cocaine. Also inside the purple bag were a digital scale, razor blades, and several empty baggies. Inside the green velvet bag, police discovered a plastic bag containing twenty-four individually wrapped bags of a green substance determined to be marijuana.

P4 Officers obtained a search warrant for the two phones and determined which phone was Roberts's by using contact information and a reference to the user as "Nello." Id. at 134-35, 140, 142. The phone determined to be Roberts's contained a close-up photo of Roberts as well as photos of marijuana.

P5 The State charged Roberts with level 2 felony dealing in cocaine (at least ten grams); level 4 felony cocaine possession (at least ten grams); and class A misdemeanor dealing in marijuana. The State requested permission to conduct a videotaped deposition of forensic scientist Kimberly Ivanyo, who had conducted the lab tests on the suspected illegal substances, to be used at trial. The trial court granted the State's request, and Roberts appeared in person and by counsel at the deposition. During his subsequent jury trial, Roberts objected to the admission of Ivanyo's deposition, as well as her [*4]  certificate of analysis regarding the weight and composition of the substances tested. He also objected to the admission of text messages extracted from his cell phone. The jury convicted him as charged, and the trial court vacated his conviction for level 4 felony cocaine possession. The trial court sentenced him to an aggregate thirty-one-year term.

P6 Roberts now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Section 1 - Roberts has failed to establish an abuse of discretion in the trial court's admission of the challenged evidence.

P7 Roberts challenges the admission of certain evidence during his jury trial. We review rulings on the admission or exclusion of evidence for an abuse of discretion resulting in prejudicial error. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or where the trial court misinterprets the law. Id.

P8 Particularly, Roberts challenges the trial court's admission of certain text messages extracted from his cell phone as well as Ivanyo's deposition testimony concerning the weight of the cocaine seized from his rented room. We address each separately. [*5] 

A. Text messages

P9 Roberts objected to the admission of the extracted text messages on grounds of authenticity, relevance, and hearsay. To lay a foundation for admission, writings and recordings must be authenticated pursuant to Indiana Evidence Rule 901(a). Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans. denied. Evidence Rule 901(a) reads, "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." Absolute proof of authenticity is not required, but rather only a reasonable probability that the document is what it purports to be. Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. Once a reasonable probability is shown, any inconclusiveness concerning the exhibit's connection to 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. 2014), trans. denied.

P10 Roberts claims that the State failed to establish that he was the sender of the extracted messages. We disagree. Police recovered two cell phones from the room that Roberts rented with Hollie. Because one of the phones listed Hollie as a frequent contact, police determined that it was Roberts's phone and sought to extract information from it. They obtained a search warrant and extracted several text [*6]  message conversations purportedly between Roberts and others. In one of the extracted messages, the sender referred to himself as "Nello." See State's Ex. 44k ("Well if this mike its nello i was wondering if you still have lab t op"). This nickname is consistent with Roberts's first name "Ronnell" as well as with the nickname by which his landlady referenced him to police. The cell phone also contained what appeared to be a close-up "selfie" photograph of Roberts. State's Ex. 46. The trial court properly found the cell phone and text messages to be authenticated as Roberts's.

P11 Roberts also contends that the extracted text messages lacked relevance and were highly prejudicial. In general, all relevant evidence is admissible. Ind. Evidence Rule 402; Wilson v. State, 4 N.E.3d 670, 675 (Ind. Ct. App. 2014), opinion on reh'g, trans. denied. Indiana Evidence Rule 401 provides that evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. The trial court has the discretion to admit even marginally relevant evidence. Wilson, 4 N.E.3d at 675. Notwithstanding, Indiana Evidence Rule 403 allows the trial court to "exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice." [*7] 

P12 Excerpts from the extracted text messages sent from Roberts's phone include the following:

Sent: Hey its some decent sh*t G cause im out of state so I got distinguish myself from the rest in town so I can get the bread


Sent: Im coming thru east chicago now and I was wondering if its good sh*t cause im coming from out of state and got to distinguish myself with better sh*t then the town

Sent: to make bread


Sent: You think dude rock be having some hood sh*t


Sent: Im on the highway now ill hustle and make due with whatever you hook me up with


Sent: Im going back to Chicago its there today I cant keep sitting dry aint making no money and I want to still be sitting on something when I pay you back or it will defeat the purpose of ever borrowing anything to come up you know


Sent: My guy aint coming back I got to take the cash to them and its mids


Sent: Mothers day weekend deal before I go until I come back

State's Exs. 44a, 44f, 44h, 44i, 44j.

P13 These excerpts from Roberts's text messages are highly probative of Roberts's intent to deal (not merely use) cocaine and marijuana. This is especially true when the messages are considered in conjunction with the quantity of the [*8]  drugs recovered, their packaging, and the presence of paraphernalia such as razor blades and a digital scale. As for Roberts's claims of unfair prejudice, we observe that, except as previously referenced, the messages are largely mundane, sometimes in code,1 and sometimes speaking merely to his whereabouts. The relevancy of the text messages was not substantially outweighed by any danger of prejudice, and Roberts has failed to establish an abuse of discretion for the admission of the messages on this basis.

P14 Roberts also asserts that the text messages were inadmissible on hearsay grounds. Hearsay is a statement not made by the declarant while testifying at the trial or hearing and offered in evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Hearsay is generally inadmissible under Indiana Evidence Rule 802. Harrison v. State, 32 N.E.3d 240, 254 (Ind. Ct. App. 2015), trans. denied. Indiana Evidence Rule 801(d)(2)(A) provides that an opposing party's out-of-court statement offered in evidence to prove the truth of the matter asserted is not hearsay if it is offered against the opposing party and was made by the party in an individual or representative capacity. Having authenticated the cell phone and its contents as belonging to Roberts, the State properly offered the statements contained in the [*9]  extracted text messages as statements of a party opponent. That said, we also note that neither Roberts's "sent" messages nor the messages in his inbox were offered to prove the truth of the matters asserted in each of the statements, i.e., not offered to establish that out-of-state drugs are "better sh*t" that would distinguish Roberts from other dealers in town. State's Ex. 44a. Instead, the mere fact that Roberts sent the messages was relevant to the issue of his being a drug dealer. We therefore conclude that the challenged text messages were properly admitted as non-hearsay. ***


To alleviate potential jury confusion, Officer Klepinger provided clarifying testimony.

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