An Indianapolis Metropolitan Police Department sergeant was qualified as an expert to testify about Facebook records and digital trails that led to a man’s multiple convictions for felony stalking, the Indiana Court of Appeals decided Friday.
In 2012, Christopher Johnston met D.K. and began contacting her via phone calls, texts and social media for three years. After Johnston did not comply with her requests to stop contacting her, D.K. took out a protective order against Johnston in 2014.
Johnston was arrested in 2015 after going to D.K.’s home and claimed he did not know D.K. A month later, Johnston returned to the home, so D.K. called the police. He was later arrested and charged with Levels 5 and 6 felony stalking for going to D.K.’s home and sending her texts and Facebook messages in 2013 and 2014, as well as two counts of Class A misdemeanor invasion of privacy.
During trial, the state presented IMPD Sgt. Steven Schafer as an expert in forensic analysis. Johnston objected to Schafer’s qualifications, but the Marion Superior Court overruled the objection. Schafer testified that there were multiple Facebook accounts believed to be Johnston’s aliases because they were all associated with Internet cookies attached to the same device and used the same IP address.
Schafer further testified that the likelihood of multiple people using the same device and same IP address to contact D.K. with similar messages was less than “being struck by lightning while hitting the lotto and being bitten by a polar bear at the same time.” Johnston was found guilty on all counts, but the court did not enter judgment on the invasion of privacy counts.
Johnston then appealed in Christopher Johnston v. State of Indiana, 49A04-1603-CR-543, once again arguing that Schafer was not qualified as an expert witness because he works in “a field of study which is highly technical and therefore susceptible to misunderstanding, confusion, and error” and because he did not have the requisite training in statistics to form a valid opinion about the probability of an event.
But Judge Melissa May, writing for the unanimous panel of the Indiana Court of Appeals, noted that the state did not present Schafer as an expert in statistics, but instead as an expert in forensic analysis of social media records and digital trails. Further, Schafer testified that he had been trained and done extensive work analyzing social media accounts, so admitting him as an expert witness was not an abuse of discretion, May wrote.
Similarly, Johnston also argued that the trial court committed fundamental error in allowing Schafer to give the “polar bear analogy” about statistical probability. But May wrote that Johnston’s fundamental error argument failed because he could not meet the applicable standard to demonstrate that “the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and when the violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.”