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Johnston v. State

Court of Appeals of Indiana

January 20, 2017

Christopher Johnston, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal 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 Indianapolis, Indiana.

          MAY, JUDGE.

         [¶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.

         Facts and Procedural History

         [¶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 stalking[1] for going to D.K.'s residence in March 2015, Level 6 felony stalking[2] 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 "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.)

         [¶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.

         Discussion and Decision

         Expert ...


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