from the Marion Superior Court The Honorable Kurt Eisgruber,
Judge; The Honorable Steven J. Rubick,, Magistrate, Trial
Court Cause No. 49G01-1504-F5-12421
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
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.
and Procedural History
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.
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.
On April 10, 2015, the State charged Johnston with Level 5
felony stalking for going to
D.K.'s residence in March 2015, Level 6 felony
stalking for going to D.K.'s
residence in February 2015, and two counts of Class A
misdemeanor invasion of privacy. 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.
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]." (Tr. at 182-83.)
The trial court overruled his objection.
Sergeant Schafer explained the importance of
"cookies" and internet protocol (IP) addresses.
Cookies are "basically something that companies and
internet companies will place. It generally gets placed back
in a device such as a computer or a phone."
(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.)
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.