Vaidik, J.
To authenticate under Evidence Rule 901, the State need show only the evidence is what the State purports it to be. An Instagram account and photos from Facebook tending to show Michael Wisdom was a member of a gang were properly admitted. A detective testified she recognized Wisdom and many known gang members in the Facebook photos and Instagram posts, and that the Instagram account itself appeared to be associated both with Wisdom—as his name was on the account and the vast majority of pictures were of him— and with the gang—as the account’s username and several photo captions referenced the gang. This testimony was sufficient to show the Facebook photos and Instagram account were what the State purported them to be.
There was also no double-jeopardy violation. In the first phase of the bifurcated trial, Wisdom was found not guilty of criminal-organization activity, a charge which includes a gang-related element. He was found guilty of possession of a controlled substance. In the second phase, the jury also found him guilty of a gang-related sentencing enhancement. Wisdom argues his acquittal of criminal-organization activity in the first phase prohibited the State from proceeding with the enhancement charge in the second phase under the statutory-elements test and the actual-evidence test set forth in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Because criminal-organization activity and the enhancement require different statutory elements and because there is not a reasonable possibility the jury used the same evidence to acquit Wisdom of criminal-organization activity and to convict him of the enhancement, we find no violation of his rights.
…
Wisdom argues the challenged social-media posts were not properly authenticated under Evidence Rule 901(a), which provides, “To 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.” “Once this reasonable probability is shown, any inconclusiveness regarding the exhibit’s connection with the events at issue goes to the exhibit’s weight, not its admissibility.
…
Wisdom argues the State did not present sufficient evidence to authenticate the Facebook photos and Instagram account because instead of introducing “evidence of a social media account through a user who has personal knowledge of the account’s owner” the State provided only “the detective’s hunch that this account belonged to Wisdom.
…
The admissibility of photos or videos taken from online social-media platforms like Facebook and Instagram has not been specifically addressed in Indiana. However, federal circuits have addressed this issue. See United States v. Farrad, 895 F.3d 859, 879-80 (6th Cir. 2018). In Farrad, the defendant was charged with illegally possessing a firearm. The State introduced photos taken from Facebook purporting to show Farrad holding a firearm. The Sixth Circuit held that because the details of the Facebook account matched Farrad and the photos appeared to show Farrad, his tattoos, and his apartment, the photos cleared “the relatively lower hurdle of authentication.” Id. at 878; see also United States v. Vázquez-Soto, 939 F.3d 365, 374 (1st Cir. 2019) (Facebook photo properly authenticated through the testimony of a witness he recognized the defendant in the photo). Courts have further applied this standard to social-media accounts as a whole. See United States v. Recio, 884 F.3d 230, 237 (4th Cir. 2018) (authenticating Facebook account because government “sufficiently tied” the account to defendant by showing the username of the account was his, the email address associated with the account was his, and more than a hundred photos on the account were of him).
Therefore, the authentication of social-media evidence turns on whether there is sufficient evidence to support a finding it is what the claimant purports it to be. And while the source of the evidence may sometimes be needed, authentication “depend[s] on context.” United States v. Vayner, 769 F.3d 125, 133 (2nd Cir. 2014). Here, the State claimed these exhibits to be “documentation of [Wisdom’s] association with confirmed members of [Wagg Block 300].” Tr. p. 137. Unlike in Wilson and Richardson, these social-media posts were not being used to show Wisdom was the source of some incriminating communication. Rather, his mere presence in the Facebook photos and association with the Instagram account were used by the State to show Wisdom was affiliated with other members of Wagg Block 300.
Regarding the Facebook photos, Detective Thomas testified she recognized Wisdom in the photos and believed many of the other individuals in the photos were Wagg Block 300 members who had been convicted of gang-related activities. Relating to the Instagram account, Detective Thomas testified (1) the account was registered under Wisdom’s full name; (2) Wisdom was in a “vast majority” of the photos, which appeared to be “selfies” or photos he took of himself; (3) the account’s username—Block_burna300—was a nickname associated with Wagg Block 300; (4) a video on the account featured Wisdom saying he was making money on Wagg Block; and (5) some pictures had captions that appeared to be associated with the gang, such as “gang 300[.]” Id. at 131, 164, 166. This is sufficient to authenticate the Facebook photos and Instagram account as being what the State purported them to be.
The trial court did not abuse its discretion by admitting the contested exhibits.
…
Wisdom also argues the State should not have been allowed to go forward on the gang enhancement in the second phase of the trial because he was acquitted of criminal-organization activity in the first phase of the trial. Specifically, he asserts the enhancement phase constituted double jeopardy under the Indiana Constitution because it gave the State “a second bite at the apple” to prove the fact of his gang involvement.
…
Wisdom first argues prosecution on the gang enhancement violated the statutory-elements test because the enhancement included “an issue upon which [the jury] already deliberated.” Appellant’s Br. p. 13. We first note it is unclear whether the statutory-elements test even applies to claims of double jeopardy based on successive prosecutions. See Garrett v. State, 992 N.E.2d 710 (Ind. 2013) (applying only the actual-evidence test to a successive-prosecution claim); see also Wadle v. State, 151 N.E.3d 227, 244 n.15 (Ind. 2020). But even if it does, the test has not been met here because criminal-organization activity and the gang enhancement have different elements. Criminal-organization activity requires committing an offense “with the intent to benefit, promote, or further the interests of” a gang, while the gang enhancement requires committing an offense while a “member of a gang” and “at the direction of or in affiliation with” a gang. I.C. §§ 35-45-9-3(c)(1), 35-50-2-15(b). As the State points out, “the question of whether a defendant acted with intent to benefit a gang is distinct from the question of whether a defendant acted while affiliated with a gang[.]
…
Furthermore, like in Garrett, evidence presented at trial indicates what evidentiary facts the fact-finder relied on. Here, the evidence for dealing was limited to the presence of the baggies and the amount of the pills. On the other hand, there was plenty of evidence of gang membership and affiliation: the art on his bedroom walls, his gang-related clothing, the rap lyrics, and the socia-lmedia posts. The evidence taken together indicates the jury did not “latch on” to the same facts to acquit Wisdom of Count II and to convict him of the enhancement because the acquittal was based on the dealing evidence (or lack thereof) and the enhancement was based on the overwhelming gang evidence. And therefore there is no reasonable possibility the jury relied on the same evidentiary facts to acquit Wisdom of criminal-organization activity and to find him guilty of the gang enhancement.
We therefore conclude Wisdom was not twice prosecuted for the same offense in violation of the Indiana Constitution.
Affirmed.
Bailey, J., and Weissmann, J., concur.