COA rejects challenge to text message report

A man convicted of dealing in meth after a report of his text messages describing a drug deal was used against him has lost his argument on appeal that the report should not have been admitted as evidence.

The case of Shaun A. Smith v. State of Indiana, 21A-CR-956, began in June 2020, when Detective Mark Van Horn initiated a traffic stop after a maroon moped disregarded a stop sign.

Van Horn asked the driver, identified as appellant-defendant Shaun Smith, whether he was in possession of any illegal narcotics. Before saying no, Smith paused and glanced at a compartment underneath the moped’s handlebars.

Van Horn retrieved K-9 Mattis to sniff the exterior of the moped, and Mattis alerted to the odor of drugs. The detective then found two small baggies containing a crystal-like substance in the compartment that Smith had glanced at earlier, as well as digital scales and Smith’s cellphone in other compartments. The substance in the baggie was later identified as methamphetamine.

Smith was subsequently charged with Level 5 felony dealing in meth. Van Horn had taken custody of Smith’s cellphone, which was used to generate a report of Smith’s text messages on the day of the traffic stop and the day before. The report was redacted because any of the messages were not relevant to the case.

But what was relevant was an exchange between Smith and Jamie Varner, who was his passenger on the moped. Smith had texted Varner that he had a “ball for sale,” which Varner said she understood to mean four grams of meth. Smith also texted Varner that he had paid $170 for the “ball” but would drop the price for her.

At a jury trial in April 2021, Smith objected to the admission of the redacted report, arguing the text messages had not been properly authenticated. But the Cass Superior Court overruled the objection and admitted the report, and Smith was convicted. He received a sentence of 2,190 days in prison, with the possibility of serving 730 days in community corrections.

Smith challenged the admission of the cellphone report again on appeal, arguing the texts were not independently authenticated because Detective Andrew Strong, who had performed the extraction from Smith’s cellphone, was not involved in the arrest and, thus, did not have personal knowledge that the phone belonged to Smith. Additionally, Smith claimed Varner’s testimony failed to lay a foundation for the source of the texts.

But the Court of Appeals rejected both arguments, with Judge Derek Molter writing Tuesday that there was “ample evidence” to support the admission of the texts.

Molter noted both Van Horn and Strong identified the cellphone as belonging to Smith, with Van Horn testifying that Smith had claimed ownership of the phone.

“Additionally, Detective Strong testified about the manner in which Smith’s text messages were recovered, the standard method for conducting Cellebrite extractions, and that Detective Strong had received at least thirty-five hours of training in Cellebrite extractions,” Molter wrote, referencing the name of the extraction software. “He further testified that he was the officer who generated the Cellebrite report from Smith’s cell phone and that such reports are unmodifiable.”

As for Varner, Molter noted that she testified to texting Smith the day before and the day of the traffic stop, that those texts included discussions of a “ball” and that the texts came from a number she recognized as being Smith’s.

“Taken together, the testimony describing Smith’s cell phone and how it was collected and placed into evidence by Detective Van Horn, the Cellebrite extraction, Varner’s testimony, and the text messages are enough to authenticate both the cell phone and, independently, the text messages as being authored by Smith,” Molter wrote, citing Indiana Evidence Rule 901(b)(4). “Smith’s arguments that this evidence is inconclusive to authenticate the text messages go to the weight of the evidence rather than its admissibility.”

But even if the report was admitted erroneously, the error would have been harmless, Molter continued. That’s because “the Cellebrite report was merely cumulative of the other evidence presented that established Smith’s guilt in dealing methamphetamine.”

Finally, Smith argued that even if the texts were authenticated, the report was still erroneously admitted because the redactions made it confusing and unintelligible for jurors. But Smith waived that argument by not objecting to the redactions, Molter wrote, and “any inappropriate redactions would constitute harmless error due to the other cumulative evidence … establishing his guilt.”

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