Mark Allen O'Banion, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] In the summer of 2024, the parents of fourteen-year-old A.J. discovered Snapchat photos and videos of her kissing and spending time with thirty-three-year-old Mark O'Banion, a friend of the family. After they reported that information to the police, O'Banion was brought in for an interview, during which he confessed to kissing A.J. He was charged with sexual misconduct with a minor.

[2] At his jury trial, the trial court admitted the Snapchat photos and videos that A.J.’s parents had found over O'Banion’s objections that they were not properly authenticated. O'Banion was found guilty and now appeals his conviction, asserting the trial court abused its discretion in admitting the Snapchat photos and videos and that it was not harmless error. Finding no reversible error, we affirm.

Facts and Procedural History

[3] In July 2024, A.J.’s mother awoke early one morning to find that A.J. was not at home. In the process of her parents trying to find her, they used A.J.’s father's phone to gain access to her Snapchat account where they discovered photos and videos of A.J. and O'Banion kissing one another at a local hotel gym. A.J.’s mother contacted A.J. through Snapchat on her own phone and tried to convince her to come home, but A.J. would not. Her mother contacted the police department, reported the pictures and videos they found, and informed them that A.J. was missing.

[4] After a detective from the St. Joseph's County Special Victim's unit received the Snapchat evidence from A.J.’s mother, he brought O'Banion to the Unit's facility for an interview. See State's Exhibit 10. The detective read O'Banion his rights and he agreed to answer the detective's questions about A.J. When asked about A.J.’s whereabouts, O'Banion said that he didn't know where she was, but he claimed he had run into A.J. a few days before and had been talking to her on Snapchat. He later admitted they had been together the morning of the interview. At one point during the interview, the detective showed O'Banion two of the Snapchat videos, which depicted him and A.J. kissing. O'Banion confirmed that he was the man in the video and said that he and A.J. had never done anything “other than that,” referring to them kissing. Id. at 16:36:48-16:36:56, 16:42:24-16:42:29 (citing the recording's time of day timestamp). When asked whether he had ever considered having sex with A.J., O'Banion said he would “if she was of age.” Id. at 16:35:32-16:35:43. He also told the detective that the Snapchat videos were taken in the gym of the hotel where he was staying, that A.J. was at the hotel with him for “a couple hours” the day before, and that she had dyed her hair red while she was there. Id. at 16:34:36-16:34:44.

[5] O'Banion was arrested and charged with sexual misconduct with a minor as a Level 5 felony.¹ At his jury trial, A.J.’s mother and the detective testified. During the mother's direct examination, the State elicited testimony to lay a foundation for the admission of the Snapchat photos and videos. Defense counsel objected on the grounds that A.J.’s mother could not “lay a foundation on the pictures.” Transcript at 39. The trial court overruled the objection, finding that A.J.’s mother could identify the individuals in the photo, which served as acceptable means of proof, and that the authenticity of the pictures went to the weight of the evidence. Id. at 39-40. The Snapchat photos and videos were admitted and published to the jury. See State's Exs. 1-10.

[6] A.J.’s mother identified A.J. and O'Banion in the Snapchat materials and testified that she could tell where the photos and videos were taken because the background showed a hotel gym where A.J. and her friends would often go together. Tr. at 47. She also testified that A.J.’s hair, which was “dark brown with red” before she went missing, was “a bright pinkish red” when they finally found her. Tr. at 42. On cross examination, the mother admitted that she did not take the videos, did not know who took them, was not there when they were taken, that her husband had accessed the Snapchat account first, and that the original photos and videos had timestamps on them while the ones presented to the jury did not.

[7] The State also admitted the video of O'Banion’s interview and the detective's photos of O'Banion’s hotel room and the hotel gym. One of the photos depicted a pink/red stain in the bathtub, which the detective testified “did not look ․ like blood” but was consistent with A.J.’s newly dyed red hair. Tr. at 67; see Exhibits at 12. Another photo showed red stains on one of the pillowcases. Ex. at 9. The detective also took photos of the gym—one of which is from a similar perspective as one of the Snapchat videos—“to give the best and most accurate reproduction of ․ where [A.J. and O'Banion] were standing” in that video. Tr at 69.

[8] The jury found O'Banion guilty as charged. He was sentenced to three years executed in the Department of Correction with 342 days of credit time to be served consecutively to his sentence in another case. O'Banion appeals.

Discussion and Decision

[9] O'Banion argues the trial court abused its discretion in admitting the Snapchat photos and videos portraying himself and A.J. together and that such errors were not harmless.

[10] The trial court's decision to admit or exclude evidence is within its sound discretion, and we review that decision only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). The court abuses its discretion “when [its] decision is clearly against the logic and effect of the circumstances before it.” Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012), reh'g denied.

[11] Here, O'Banion asserts that admission of the Snapchat photos and videos was erroneous because the State used them as substantive evidence and failed to adequately authenticate them under the silent-witness theory. Indiana Evidence Rule 901(a) provides that “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” “Photographs and videos can be authenticated through either a witness's testimony or, in instances in which no witness observed what a photograph or video portrays, the silent-witness theory.” McFall v. State, 71 N.E.3d 383, 388 (Ind. Ct. App. 2017).

[12] Because neither A.J. nor O’ Banion testified at trial and the Snapchat materials had to speak for themselves, the State had to authenticate them using the silent-witness theory. When evidence is used in this manner, “ ‘[t]he witness is not required to testify that the photograph is an accurate representation of the scene as it appeared’—and indeed, often could not ‘so testify since he or she was not necessarily there to observe the scene on that day.’ ” Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014) (quoting Smith v. State, 491 N.E.2d 193, 196 (Ind. 1986)), cert. denied. Rather, the witness must testify as to “ ‘the scene that appears in the photograph[s],’ ․ sufficient to persuade ‘the trial court ․ of their competency and authenticity to a relative certainty.’ ” Id. (quoting Smith, 491 N.E.2d at 196 and Torres v. State, 442 N.E.2d 1021, 1024-25 (Ind. 1982)) (emphasis in original). Evidence Rule 901(b)(9) only requires a description of the process in such a way that the trier of fact can find “that it is more likely than not that the system produced an accurate result.” McFall, 71 N.E.3d at 388 (quoting 13 Robert L. Miller, Jr., Indiana Practice, Indiana Evidence § 901.209 (4th ed. 2016)).

[13] A.J.’s mother's testimony, coupled with subsequently admitted evidence, was sufficient to authenticate the Snapchat materials under the silent witness theory. A.J.’s mother generally described how Snapchat works and testified that she and her husband accessed A.J.’s Snapchat account and viewed the videos and photos that were admitted at trial. Tr. at 37, 41, 44, 47. She identified A.J. and O'Banion in all the materials and the location in which they were taken based on her familiarity with the gym portrayed in the background. Id. at 42, 47. She knew the photos and videos had been sent recently because A.J.’s hair was “dark brown with red” when she went missing but bright red when she was found a few days later—which was also the color of her hair in the Snapchat materials. Id. at 42.

[14] The State also admitted into evidence O'Banion’s police interview which provided further authentication of the Snapchat videos because he admitted that he was the man in the videos, they were taken at his hotel's gym, A.J. colored her hair while she was with him, and he had been with A.J. within the three days before his interview, including that very morning. The detective's photos also corroborated the mother's testimony and O'Banion’s statements in the interview. O'Banion has thus failed to prove that the trial court abused its discretion in finding that the evidence presented was sufficient to persuade it, to a relative certainty, of the Snapchat materials’ authenticity. See Wise v. State, 26 N.E.3d 137, 142-43 (Ind. Ct. App. 2015) (concluding that testimony from multiple witnesses and evidence that the defendant acknowledged the authenticity of the video recordings he was alleged to have taken “established a sufficient foundation upon which the trial court could admit the video recordings into evidence under the ‘silent witness’ theory”).

[15] However, even if the trial court erred in admitting the Snapchat materials, any such error was harmless. Under Indiana Appellate Rule 66(A), an error does not warrant reversal “where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” Harmless error review requires us to consider “what was presented to the trier of fact compared to what should have been presented” and “the likely impact of the improperly admitted ․ evidence on a reasonable, average jury in light of all the evidence in the case.” Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), reh'g denied, cert. denied. The probable impact is sufficiently minor when, in light of the entire record, our confidence in the outcome is not undermined. Id.

[16] O'Banion contends the erroneously admitted evidence was not harmless because “A.J. did not testify, which left the State to prove that [ ] O'Banion engaged in misconduct with her by showing the jury the Snapchat pictures and videos[.]” Appellant's Br. at 14. In other words, he claims the only evidence of his criminal conduct admitted at trial came from the Snapchat materials. However, O'Banion ignores another critical piece of evidence shown to the jury: his police interview. In that interview, he admitted that he kissed A.J. knowing she was only fourteen years old and that he thought about having sex with her “if she [had been] of age.” State's Ex. 10 at 16:35:42. His interview also corresponded with what was depicted in the detective's photographs of O'Banion’s hotel room, including the fact that A.J. dyed her hair while she was with him. See Dausch v. State, 616 N.E.2d 13, 17 (Ind. 1993) (“Errors in the admission of evidence may be rendered harmless by the introduction of subsequent evidence.”).

[17] We must compare the evidence the jury saw to the evidence the jury should have seen. The jury saw the Snapchat materials, the police interview, and the detective's photos, and it heard witness testimony. If we assume the court erred in admitting the Snapchat materials, the jury should have only seen the detective's photos of O'Banion’s hotel room and the gym, the police interview, and heard testimony. Considering the evidence that would have been before the jury had the Snapchat materials not been admitted, our confidence in the jury's verdict is not undermined. O'Banion’s admissions during the interview, namely that he and A.J. kissed, that she was at the hotel with him, and that A.J. dyed her hair red while she was with him, rendered the Snapchat material merely cumulative. See Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017) (explaining that “[t]he improper admission of evidence is harmless error when the erroneously admitted evidence is merely cumulative of other evidence before the trier of fact”), trans. denied. Thus, any error in the admission of the Snapchat materials was harmless.

Conclusion

[18] Finding no reversible error in the admission of the Snapchat photos and videos, we affirm.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-9(b)(1).

DeBoer, Judge.

Bradford, J., and Weissmann, J., concur.