Johnston v. State
Decision Date | 20 January 2017 |
Docket Number | Court of Appeals Case No. 49A04-1603-CR-543 |
Citation | 69 N.E.3d 507 |
Parties | Christopher JOHNSTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Court | Indiana Appellate Court |
Attorney for Appellant : James A. Edgar, J. Edgar Law Offices, Prof. Corp., Indianapolis, Indiana.
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, Indiana.
[1] Christopher Johnston appeals the qualification of State's expert called to discuss forensic analysis of social media records and digital trails, and the admission of that expert's opinion regarding the statistical probability of multiple Facebook accounts belonging to people other than Johnston. We affirm.
[2] Johnston met the victim, D.K., in 2012. Johnston proceeded to contact D.K. via phone calls, texts, and social media until 2015. D.K. requested, on several occasions and by various means, that Johnston stop contacting her. He did not. On May 30, 2014, D.K. obtained a protective order against Johnston.
[3] On February 7, 2015, Johnston was arrested after going to D.K.'s home. He claimed to not know D.K. Johnston was served with the protective order on his release from custody. On March 9, 2015, Johnston went to D.K.'s home. D.K. called the police, but they were unable to locate Johnston when they responded. On March 10, 2015, Johnston again went to D.K.'s home, and this time he was arrested.
[4] On April 10, 2015, the State charged Johnston with Level 5 felony stalking1 for going to D.K.'s residence in March 2015, Level 6 felony stalking2 for going to D.K.'s residence in February 2015, and two counts of Class A misdemeanor invasion of privacy.3 The State later amended these charges to add another count of Level 5 felony stalking for texts and Facebook messages sent between April 2013 and July 2013, and of Level 6 felony stalking for Facebook messages sent between February 2014 and May 2014.
[5] Detectives at the Indianapolis Metropolitan Police Department ("IMPD") analyzed D.K.'s cell phone messages and Facebook account. IMPD officers also analyzed the Facebook accounts alleged to be owned by Johnston under several aliases. The State presented Sergeant Steven Schafer of the IMPD Computer and Digital Forensic Unit to testify as an expert in forensic analysis of social media records and digital trails. Johnston objected to Sergeant Schafer's qualifications as an expert able "to render an opinion as to how any of these Facebook records may or may not be linked together [or] traced back to [Johnston]."4 (Tr. at 182-83.) The trial court overruled his objection.
[6] Sergeant Schafer explained the importance of "cookies" and internet protocol (IP) addresses. Cookies are (Id . at 200-201.) Such cookies are "a marker of sorts that's unique to a particular device." (Id. at 201.) If multiple usernames have the same cookie associated with them, "[the users] were using the same device." (Id. at 202.) An IP address is a "doorway that any device uses to access the physical internet." (Id. ) Multiple users with the same IP address "have to be using the same router or home." (Id. at 203.)
[7] Sergeant Schafer testified there were multiple Facebook accounts believed to be Johnston's alias accounts, and those accounts were registered under the names: "James Jordan," (Ex. 24, p. 1), "Chris Stark," (Ex. 25, p. 1), "Sam Hesh," (Ex. 26, p. 1), "Chris Crown," (Ex. 27, p. 1), and "Chris Stone," (Ex. 28, p. 1). Each of those accounts was affiliated with internet cookies that were attached to the same device, and all of the accounts had accessed the internet by the same IP address. During re-direct examination, when the State asked Sergeant Schafer about the likelihood of multiple people using the same device and same IP address to contact D.K. with messages of a similar tone, he said it was less likely than "being struck by lightning while hitting the super lotto and being bitten by a polar bear at the same time." (Tr. at 225) (hereinafter, "Polar Bear Analogy"). Johnston did not object to that statement. The trial court found Johnston guilty on all counts but, due to double jeopardy concerns, did not enter judgment on the invasion of privacy counts.
[8] Johnston claims Sergeant Schafer was not qualified to give his opinion as an expert. A witness is "qualified as an expert by knowledge, skill, experience, training, or education," to testify in the form of an opinion "if scientific, technical or specialized knowledge will assist the trier-of-fact to understand the evidence or determine a fact in issue." Ind. Evidence Rule 702(a). To qualify as an expert, the subject of a "witness's testimony must be distinctly related to some scientific field, business, or profession beyond the knowledge of the average person, and the witness must have sufficient skill, knowledge, or experience in that area so that the opinion will aid the trier of fact." Hastings v. State , 58 N.E.3d 919, 924 (Ind. Ct. App. 2016).
[9] The trial court has broad discretion when qualifying an expert, and we review its decision only for an abuse of discretion. INS Investigations Bureau, Inc. v. Lee , 709 N.E.2d 736, 744 (Ind. Ct. App. 1999), trans. denied . When reviewing a decision under an abuse of discretion standard, we will affirm if there is any evidence to support the decision. Sparkman v. State , 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000).
Burnett v. State , 815 N.E.2d 201, 204 (Ind. Ct. App. 2004) (internal citations omitted), reh'g denied .
[10] Johnston argues the trial court abused its discretion in qualifying Sergeant Schafer as an expert in "a field of study which is highly technical and therefore susceptible to misunderstanding, confusion, and error," (Appellant's Br. at 16), when Sergeant Schafer did not have the requisite training in statistics to form a valid opinion about the probability of an event. However, the State did not present, and the trial court did not declare, Sergeant Schafer to be an expert in statistics. Rather, he was qualified as an expert in forensic analysis of social media records and digital trails.
(Tr. at 179.) He also gave extensive examples of the work he has done with social media accounts, the analysis undertaken with that information, and how users of social media are identified. He estimated he had requested records and analyzed them in "easily 300-plus" cases. (Id . at 181.) Thus, we cannot say the court abused its discretion in qualifying Sergeant Schafer as an expert capable of helping the court understand the evidence regarding internet technology and social media. See Armstrong v. State , 22 N.E.3d 629, 642 (Ind. Ct. App. 2014) ( ), trans. denied .
[12] Johnston also argues the trial court erred by allowing Sergeant Schafer to give an opinion on statistical probability. Specifically, Johnston challenges Sergeant Schafer's testimony that multiple people using the same device and same IP address to contact D.K. with Facebook messages of a similar tone was less likely than "being struck by lightning while hitting the super lotto and being bitten by a polar bear at the same time."5 (Tr. at 225.) The State gave Sergeant Schafer an opportunity to explain that analogy:
(Id . at 225) (errors in original).
[13] Admission of opinion testimony is within the discretion of the trial court. Julian v. State, 811 N.E.2d 392, 399 (Ind. Ct. App. 2004), trans. denied. The court must be "satisfied that the expert testimony rests upon reliable scientific principles" in order to admit the testimony. Ind. R. Evid. 702(b). A decision to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Davis v. State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003), reh'g denied, trans. denied. In determining the admissibility of evidence, we consider only the evidence in favor of the trial court's ruling and unrefuted evidence in the defendant's favor. Id.
[14] However, Johnston did not object at...
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