Freddie Allen Forsythe, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 15 2020, 5:51 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Sean C. Mullins Myriam Serrano Appellate Public Defender Deputy Attorney General Crown Point, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Freddie Allen Forsythe, Jr., June 15, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2956 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee-Plaintiff. Judge Trial Court Cause No. 45G01-1803-F5-25

Najam, Judge.

Statement of the Case [1] Freddie Allen Forsythe, Jr. appeals his convictions for possession of child

pornography, as a Level 5 felony; possession of child pornography, as a Level 6

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020 Page 1 of 10

felony; and his adjudication as a repeat sexual offender following a jury trial.

He presents two issues for our review, which we consolidate and restate as

whether the trial court abused its discretion when it admitted evidence at trial.

We affirm.

Facts and Procedural History [2] On May 15, 2017, Indiana State Police Detective Tracy Kunstek received a tip

from the National Center for Missing and Exploited Children that a Google

account registered under Forsythe’s name had been used to obtain an image

that depicted child pornography. After Detective Kunstek’s additional

investigation revealed that Forsythe’s home address corresponded with the IP

address associated with the tip, Detective Kunstek obtained a search warrant for

the home. On December 7, Detective Kunstek and other officers executed the

search warrant at Forsythe’s home that he shared with his mother, Jacy

Frangello. Officers located several electronic devices, including three cell

phones, which they took to forensic vehicles parked outside of the home. [3] Inside one of the forensic vehicles, Indiana State Police Sergeant Scott Krueger

“triaged” an LG cell phone found in Forsythe’s house (“LG phone”). Tr. Vol.

3 at 59. When Sergeant Krueger was unable to get the phone to turn on, he

used “an extraction method” to get the data from the phone. Id. at 62.

Sergeant Krueger found that the cell phone was linked to Forsythe’s Google

and Facebook accounts, and he retrieved an internet search history from

December 2016 that included the following terms: “Sweet Jasmina 10 years,”

“Sweet Young Preteen Avery,” “Girls—little sweet 1,” “Girls—little sweet 5,” Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020 Page 2 of 10

“sexy preteens,” “hot tweens,” and “pedophilia.” State’s Exs. 114A, 115A,

117A, 121A, 123A. Sergeant Krueger also found several images depicting child

pornography on the phone. [4] Indiana State Police Detective Alva Whited, who was working in another

forensic vehicle outside Forsythe’s home, examined two ZTE cell phones found

inside the home. Detective Whited was unable to extract any data from one of

the phones but determined that the second ZTE phone belonged to Forsythe

(“ZTE phone”). Detective Whited extracted data from that phone and found

an internet search history from May 2017 that included the following terms:

“8-15 naked,” “ultra young,” “3 to 14yo Video Sets,” “XXX Preteen Gallery,”

“13yr Models,” and “11 y.o. Models.” State’s Ex. 128. Detective Whited also

found fifty-eight saved images on the phone depicting child pornography. [5] The State charged Forsythe with two counts of possession of child

pornography, one as a Level 5 felony and the other as a Level 6 felony. The

State also charged Forsythe with being a repeat sexual offender. Prior to trial,

Forsythe moved to suppress the evidence seized from his home. The trial court

denied that motion following a hearing. Thereafter, Forsythe filed a motion in

limine seeking to exclude any evidence of his internet search history. The trial

court granted that motion in part with respect to internet searches related to

pornography, generally, but denied that motion with respect to internet searches

specifically related to child pornography. A jury found Forsythe guilty as

charged. The trial court entered judgment of conviction accordingly and

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020 Page 3 of 10

sentenced Forsythe to an aggregate eight-year term, with five years executed

and three years suspended to probation. This appeal ensued.

Discussion and Decision [6] Forsythe contends that the trial court abused its discretion when it admitted

into evidence at trial the LG and ZTE cell phones and his internet search

history. As our Supreme Court has stated:

Generally, a trial court’s ruling on the admission of evidence is accorded a great deal of deference on appeal. Because the trial court is best able to weigh the evidence and assess witness credibility, we review its rulings on admissibility for abuse of discretion and only reverse if a ruling is clearly against the logic and effect of the facts and circumstances and the error affects a party’s substantial rights.

Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015). We address each of Forsythe’s

contentions in turn.

Cell Phones [7] Forsythe first contends that the trial court abused its discretion when it admitted

into evidence the cell phones because the State did not establish a proper chain

of custody for the phones. As our Supreme Court has held,

[t]o establish a proper chain of custody, the State must give reasonable assurances that the evidence remained in an undisturbed condition. Cliver v. State, 666 N.E.2d 59, 63 (Ind. 1996). However, the State need not establish a perfect chain of custody, and once the State “strongly suggests” the exact whereabouts of the evidence, any gaps go to the weight of the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020 Page 4 of 10

evidence and not to admissibility. Wrinkles v. State, 690 N.E.2d 1156, 1160 (Ind. 1997); Jenkins v. State, 627 N.E.2d 789, 793 (Ind. 1993) (noting that failure of FBI technician to testify did not create error). Moreover, there is a presumption of regularity in the handling of evidence by officers, and there is a presumption that officers exercise due care in handling their duties. Wrinkles, 690 N.E.2d at 1160. . . . To mount a successful challenge to the chain of custody, one must present evidence that does more than raise a mere possibility that the evidence may have been tampered with. Cliver, 666 N.E.2d at 63.

Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). [8] Forsythe maintains that the State did not establish “the initial link” in the chain

of custody for the phones because it did not present testimony from the officers

who found the phones inside his home and took them outside to the forensic

vehicles for triage. Appellant’s Br. at 14. Detective Kunstek testified that

officers found one phone in Forsythe’s bedroom and the two other phones in

Frangello’s bedroom, but that he had not recovered any of the phones

personally. Forsythe asserts that, absent testimony “as to the actual recovery of

the phones, there is at most an inference that the phones brought to the forensic

vehicle were found within the home,” which inference is insufficient to show

the chain of custody beyond a reasonable doubt. Id. at 15. We cannot agree. [9] In Espinoza v. State, the defendant challenged the chain of custody for drugs

presented at his trial. 859 N.E.2d 375, 381 (Ind. Ct. App. 2006). Indiana State

Police Detective Larry Mote testified that a DEA agent in Yakima, Washington

had intercepted a package containing drugs to be mailed to an address in

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020 Page 5 of 10

Logansport, Indiana, and he mailed the package to Detective Mote. After

Detective Mote tested the drugs, he repackaged them and put a transmitter

inside the package before delivery to the defendant, who was later arrested. On

appeal following his conviction, this Court held that a sufficient chain of

custody was established despite the lack of testimony by the DEA agent who

had originally intercepted the package. Citing Troxell, we held that, “[a]lthough

no evidence was presented regarding how the Package came into the possession

of the DEA in Washington, we presume that the officers in Washington

exercised due care in handling their duties.” Id. at 382. And we noted that the

defendant did not present evidence that raised more than a mere possibility that

the evidence may have been tampered with. Id. at 383. [10] Likewise, here, we presume that the officers who found the cell phones inside

Forsythe’s house and immediately delivered them to officers in the forensic

vehicles waiting outside exercised due care in handling their duties. See id. And

Forsythe does not direct us to any evidence to indicate more than a mere

possibility that the phones may have been tampered with. See id. The State

established a sufficient chain of custody for the phones, and the trial court did

not abuse its discretion when it admitted the phones into evidence at trial.

Internet Search History [11] Forsythe next contends that the trial court abused its discretion when it

admitted his internet search history into evidence. Forsythe maintains that,

when the trial court admitted that evidence over his objection, the court

improperly relied on “the defunct doctrine of res gestae.” Appellant’s Br. at 12. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020 Page 6 of 10

And he asserts that, in any event, the evidence was inadmissible under

Evidence Rule 403. We cannot agree.

Res Gestae [12] As our Supreme Court has explained, “[r]es gestae—the common-law doctrine

that made evidence admissible as part of a crime’s story—did not survive the

adoption of Indiana’s Rules of Evidence in 1994. That is, res gestae is no longer

a proper basis for admitting evidence; instead, admissibility is determined under

Indiana’s Rules of Evidence.” Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017).

The Court then held that,

[u]nder Swanson[ v. State, 666 N.E.2d 397, 398 (Ind. 1996)] and our Rules of Evidence . . . , the many flavors of res gestae— “inextricably bound up,” “inextricably intertwined,” “circumstances and context,” and “part and parcel,” to name a few—are not proper grounds for admissibility. . . . We thus disapprove of the “inextricably bound up” standard. . . .

Id. at 177. [13] Here, at trial, when the State moved to admit five exhibits depicting Forsythe’s

internet search history, Forsythe objected based on relevance and lack of

foundation. The trial court ruled that the foundation for each exhibit was

sufficient. With respect to relevance, the court stated:

But there is probative value, as I see it. And although I think they may be to some extent prejudicial, I think the probative value is great because these images are intrinsic to the nature of this investigation that forms this charge. Under Rule 403, I do not

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020 Page 7 of 10

believe that the prejudice involved substantially outweighs the probative value, as I see it. . . .

Tr. Vol. 3 at 67 (emphasis added). On appeal, Forsythe asserts that, “[b]ased

upon the language used by the trial court, there is no question that it improperly

relied on res gestae in admitting the search history evidence.” Appellant’s Br. at

10. [14] However, in Swanson, our Supreme Court stated that it “fully expect[ed] that

the great majority of the evidence we formerly admitted by calling it res gestae

will continue to be admitted in Indiana courts. It will be admitted, however, by

reference to the legal concepts and vocabulary of the Indiana Rules of

Evidence.” 666 N.E.2d at 399. Here, while the trial court’s reference to the

“intrinsic” value of the evidence as it related to the investigation might suggest

res gestae, the court explicitly admitted the evidence under Evidence Rule 403.

Thus, we cannot say that the trial court impermissibly relied on res gestae in

admitting the evidence.

Evidence Rule 403 [15] Still, Forsythe contends that his internet search history was inadmissible under

Indiana Evidence Rule 403, which permits a trial court to exclude relevant

evidence if its probative value is substantially outweighed by a danger of

prejudice. Forsythe asserts that the probative value of the search history “is

minimal and is thus substantially outweighed by its significant prejudice and

misleading nature.” Appellant’s Br. at 11. Forsythe points out that the State

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020 Page 8 of 10

did not present evidence connecting the internet search terms with any

photographs admitted into evidence at trial. Thus, he maintains that “the

exhibits do little to prove th[e] actual issue in question of whether [he]

possessed the pictures.” Id. We cannot agree. [16] Our Supreme Court has explained that “[e]vidence is relevant when it has any

tendency to prove or disprove a consequential fact. This liberal standard for

relevancy sets a low bar, and the trial court enjoys wide discretion in deciding

whether that bar is cleared.” Snow, 77 N.E.3d at 177 (citations omitted). And

“‘[w]hen determining the likely unfair prejudicial impact, courts will look for

the dangers that the jury will (1) substantially overestimate the value of the

evidence or (2) that the evidence will arouse or inflame the passions or

sympathies of the jury.’” Myers v. State, 33 N.E.3d 1077, 1109 (Ind. Ct. App.

2015) (quoting Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012), trans.

denied), trans. denied. [17] Here, Forsythe’s search history shows that he was intentionally looking for

child pornography. The relevance to the charges is clear. And Forsythe has not

shown that the danger of unfair prejudice outweighed the relevance. The State

admitted into evidence scores of images of child pornography obtained from

Forsythe’s cell phones. In light of that evidence, it is not likely that the jury

overestimated the value of the search history or that those search terms

inflamed the passions of the jury. See id. The trial court did not abuse its

discretion when it admitted into evidence Forsythe’s internet search history.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020 Page 9 of 10 [18] Affirmed.

Kirsch, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2956 | June 15, 2020 Page 10 of 10