Facebook Messages Sent from Another’s Account Authenticated by Self-Identification, References to Page Owner in Third Person, and Knowledge of Events Known Only to Recipient and Sender

 Graham v. State, 2019 Ind. App. Unpub. LEXIS 898 (Ind. Ct. App. July 15, 2019):

P1 Tommy Graham ("Graham") was convicted in Jackson Circuit Court of two counts of Level 4 felony sexual misconduct with a minor and one count of Level 5 felony sexual misconduct with a minor. Graham now appeals, arguing whether (1) the trial court abused its discretion when admitting evidence without proper foundation1; (2) the evidence was sufficient to support his conviction; and (3) his aggregate sentence of fifteen years is inappropriate in light of the nature of his offense and his character.

P2 We affirm.

Facts and Procedural History

P3 Following the suicide death of her boyfriend in December 2015, fourteen-year-old L.G. left her home to "get away" temporarily and stayed with a family friend, whom she referred to as "Aunt Becky." Tr. Vol. I, p. [*2]  176. Rebecca Graham ("Becky") lived in a mobile home along with her husband, Graham, and their three sons. L.G. stayed with the Graham family for one week and slept in a bedroom with two bunk beds shared by the sons.

P4 On the night of December 12, 2015, L.G. ate dinner with the Graham family, and Graham drank alcohol, specifically vodka, while L.G. drank a beer. Afterwards, L.G. sat around with Becky and Graham and then went to bed around midnight. Graham's sons were already asleep in the bedroom by the time L.G. went to sleep.

P5 About an hour after she fell asleep, L.G. heard someone enter the bedroom. L.G. could not identify who the person was because the room was dark. L.G. felt a man touch her, and this man's size was noticeably larger than any of Graham's sons. The man placed his hand on L.G.'s back and turned her over, forcing L.G.'s hand onto his erect penis. L.G. heard the man say, "just let me feel," and she knew from the sound of the man's voice that it was Graham. Tr. Vol. I, pp. 201-03. L.G. could smell vodka coming from the man, which Graham had been drinking that night. Graham inserted his fingers repeatedly "in and out" of L.G.'s vagina, sucked on L.G's vagina with his [*3]  mouth, and licked her genitals with his tongue. Id. L.G. estimated that the molestation lasted for approximately thirty minutes, leaving L.G. feeling "gross and awkward" on the bunk bed. Id.

P6 The next day, L.G. asked Becky to take her home. When L.G. got to her house, she received a series of personal messages from a Facebook account belonging to Becky. The user of the account eventually identified himself as "Tj," Graham's nickname. In the message exchange, Graham repeatedly said he was sorry for what had happened the previous night during a "conversation" between him and L.G. Tr. Vol. I, pp. 204-05; Ex. Vol., State's Ex. 1 at 5-6. L.G. asked Graham if him and Becky were "done" and told Graham that he needed to tell Becky about what had happened. Ex. Vol., State's Ex. 1 at 8. Graham admitted that his actions were "wrong," but told L.G. that Becky did not "need to know the details of our conversation." Id. at 9, 18. L.G. insisted that Graham tell Becky about the sexual assault and said she would if he himself did not. Graham made it clear he would not tell Becky as it would ruin his marriage and damage Becky's relationship with L.G.'s mother. Graham pressured L.G. not to tell anyone about the [*4]  assault. Graham told L.G. he would likely go to prison if others found out. When L.G. kept pressing Graham to admit what he had done, Graham responded, "Did I f***k you? No now drop it." Id. at 12.

P7 L.G. decided not to tell Becky or her parents about the incident with Graham because it was "embarrassing" and L.G. did not want to "betray" Becky. Tr. Vol. I, pp. 208-09. L.G. did tell her brother and a friend from school, S.G., about the incident with Graham. In June 2016, L.G.'s mother learned of what had happened through the father of L.G.'s friend while the two of them were at work together. L.G.'s parents confronted L.G. about the incident, and L.G. admitted Graham had touched her inappropriately.

P8 L.G. was taken to a hospital and examined by doctors, who referred L.G. to the police. An initial report was filed, and L.G. underwent a forensic interview at the Child Advocacy Center. After the interview, police sent a preservation request to Facebook regarding the chat logs between L.G.'s account and Becky's account from December 13, 2015. Detectives then obtained a warrant to search through the Facebook records, along with a certificate of authenticity signed by Christine Oliveira, Facebook's [*5]  records custodian assigned to the case. Ex. Vol., State's Ex. 1.

P9 On September 19, 2016, the State charged Graham with two counts of sexual misconduct with a minor as Level 4 felonies and one count of sexual misconduct with a minor as a Level 5 felony. On July 6, 2018, Graham filed a motion in limine, in which he asked the trial court to exclude any evidence of Facebook communications "purportedly sent by the defendant and alleged victim" on the grounds that there was "no transactional nexus to the defendant" and constituted inadmissible hearsay. Appellant's App. Vol. 2, p. 87. On July 11, 2018, the State filed an habitual offender enhancement against Graham. Id. at 93.

P10 A two-day jury trial commenced on July 10, 2018. On the first day of Graham's jury trial, the trial court conducted a hearing on Graham's motion in limine. The trial court declined to issue a ruling at that time. The State called Detective Benjamin Rudolph ("Detective Rudolph") to testify about his role in sending the preservation request to Facebook in efforts to obtain the records of the conversation between Graham and L.G. The State moved to admit Exhibit 1, which consisted of the Facebook conversation between L.G. and [*6]  Becky's account, and Exhibit 1 was admitted over Graham's hearsay objection. In addition to the Facebook messages, the trial court allowed over Graham's objection a one-minute-eight-second long video of Graham's post-arrest interview dressed in jail clothing with Detective Bob Lucas ("Detective Lucas").

P11 The jury found Graham guilty as charged on all three counts of sexual misconduct with a minor. A separate hearing was held outside the presence of the jury, during which Graham admitted to the habitual offender count. A sentencing hearing was held on August 9, 2018. Graham was sentenced to nine years each for the two counts of Level 4 felony sexual misconduct with a minor and four years for the Level 5 felony sexual misconduct with a minor count, all concurrent. Graham's sentence was enhanced by six years due to the habitual offender enhancement, for an aggregate sentence of fifteen years. Graham now appeals.

Discussion and Decision

I. Authentication of Facebook Messages

P12 Graham argues that the trial court erred in admitting Facebook messages which he alleges were not properly authenticated and, therefore, lacked a proper foundation. A trial court has broad discretion to admit or [*7]  exclude evidence offered at trial. Carpenter v. State, 786 N.E.2d 696, 702 (Ind. 2003). This Court will only reverse a decision to admit evidence where the trial court's decision constitutes a "manifest abuse of discretion [resulting] in the denial of a fair trial." Ennik v. State, 40 N.E.3d 868, 877 (Ind. Ct. App. 2015), trans. denied. In reviewing the admissibility of evidence at trial, this Court does not reweigh the evidence and considers the evidence in the light most favorable to the trial court's ruling. See State v. Gray, 997 N.E.2d 1147, 1150 (Ind. Ct. App. 2013), trans. denied; see also Holbert v. State, 996 N.E.2d 396, 400 (Ind. Ct. App. 2013), trans. denied.

P13 Prior to trial, Graham filed a motion in limine claiming that there was "no transactional nexus" establishing that he actually authored the private messages. Tr. Vol. I, p. 147; Appellant's App. Vol. 2, p. 87. However, at trial, Graham raised no similar objection to the foundation of the evidence when the State moved to admit Exhibit 1. Graham's attorney stated only "I'm going to object on hearsay," and Exhibit 1 was admitted over Graham's objection. Id. Graham's objection at trial preserved the issue of hearsay for appeal and did not extend to the foundational arguments Graham raises. See Gill v. State, 730 N.E.2d 709, 711 (Ind. 2000) ("a defendant may not argue one ground for objection at trial and then raise new grounds on appeal."). "Rulings on motions in limine are not [*8]  final decisions and, therefore, do not preserve errors for appeal." Swaynie v. State, 762 N.E.2d 112, 113 (Ind. 2002). Graham's motion in limine was not enough to preserve the issue as to the foundation of State's Exhibit 1. Because Graham did not object at trial to the foundation of Exhibit 1, the arguments he raises regarding the authentication of Exhibit 1 are waived.

P14 Waiver notwithstanding, 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) (citing Bartlett v. State, 711 N.E.2d 497, 502 (Ind. 1999)), trans. denied. "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). But "[a]bsolute proof of authenticity is not required." Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. The proponent of the evidence need only establish a reasonable probability that the document is what it is claimed to be. M.T.V. v. State, 66 N.E.3d 960, 963 (Ind. Ct. App. 2016), trans. denied. Once this is shown, any inconclusiveness regarding the exhibit's connection with the events at issue goes to the exhibit's weight, not its admissibility. Richardson v. State, 79 N.E.3d 958, 962 (Ind. Ct. App. 2017), trans. denied.

P15 "Letters and words set down by electronic recording and other forms of data compilation are included within Rule 901(a)." [*9]  Wilson v. State, 30 N.E.3d 1264, 1268 (Ind. Ct. App. 2015), trans. denied. Moreover, Evidence Rule 901(b) provides a non-exhaustive list of evidence that satisfies the authentication requirement, including: 1) evidence describing a process or system and showing that it produces an accurate result.; and 2) evidence, taken together with all the circumstances, has distinctive characteristics in appearance, contents, or substance. Ind. Evid. R. 901(b). Federal Rule of Evidence 901(b)(4) uses language identical to that of Indiana Rule of Evidence 901(b)(4). "We have previously acknowledged that federal courts have recognized Federal Rule of Evidence 901(b)(4) as one of the most frequently used means to authenticate electronic data, including text messages and emails." Wilson, 30 N.E.3d at 1268.

P16 Here, the content and substance of the Facebook messages, coupled with the circumstantial evidence from L.G.'s trial testimony, established a reasonable probability that Graham authored the messages. It is not dispositive that the messages at issue were sent from Becky's Facebook account. Even where a defendant sends an electronic communication from an account bearing his name, the trial court must conduct an inquiry into whether the communications were authored by the defendant. Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied. In this case, the sender of the messages twice identified himself as "TJ," which was Graham's nickname. Tr. Vol. I, pp. [*10]  204-05; Ex. Vol., State's Ex. 1 at 5-6, 18. Throughout the exchange, Graham repeatedly referred to Becky in the third person and referenced information about the sexual assault of L.G. that only he could have known, begging L.G. not to tell Becky about what had happened between them the night before. Graham repeatedly admitted that his actions were "wrong" and that he was "sorry" for what he did. Id. Lastly, Graham acknowledged he had a sexual encounter with L.G. that fell short of actual penetrative sexual intercourse when Graham said, "Did I f*ck you? No now drop it." Ex. Vol., State's Ex. 1 at 12. The Facebook messages paralleled L.G.'s trial testimony and were properly authenticated and admitted into evidence. See Pavlovich, 6 N.E.3d at 978-79.

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