Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 1 of 15

 

ATTORNEY FOR APPELLANT

Donald R. Shuler 

Barkes, Kolbus, Rife & Shuler, LLP 

Goshen, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana 

Monika Prekopa Talbot 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE 

COURT OF APPEALS OF INDIANA 

Ashley N. McFall, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-Plaintiff 

February 22, 2017 

Court of Appeals Case No. 

20A03-1602-CR-267 

Appeal from the Elkhart Superior 

Court 

The Honorable Teresa L. Cataldo, 

Judge 

Trial Court Cause No. 

20D03-1310-FA-57 

Vaidik, Chief Judge. 
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Case Summary 

[1] Ashley N. McFall was convicted of Class A felony dealing in 

methamphetamine (manufacturing) based in part on videos that a man took of 

her using his personal cell phone and then showed to a detective. The man, 

however, did not testify at trial. 

[2] In order to authenticate videos under the “silent-witness theory,” there must be 

evidence describing the process or system that produced the videos and showing 

that the video is an accurate representation of the events in question. See Ind. 

Evidence Rule 901(b)(9). Here, however, when the videos were admitted into 

evidence at trial during the detective’s testimony, there was no showing that the 

videos had not been altered before they were shown to the detective. However, 

we find that any error in the admission of the videos under the silent-witness 

theory was rendered harmless by McFall’s subsequent testimony. 

[3] McFall also contends that the evidence is insufficient to support her conviction 

and that her forty-year sentence is inappropriate. While we find that the 

evidence is sufficient to support her conviction, we revise her sentence to the 

advisory term of thirty years given that this is McFall’s first felony conviction 

and the progress that she has made since her arrest to overcome her addiction 

and get her life in order. 
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Facts and Procedural History 

[4] In October 2013, McFall rented a room in David Rojics’ “drug house” on 

Center Street in Elkhart. Tr. p. 353. The rent was $10 a day. McFall told an 

acquaintance, Renee Crowder, about her living arrangements. Crowder was 

looking for a place to live, so she and her two young children moved into the 

house as well. The house had two bedrooms upstairs; McFall lived in one and 

Crowder and her children lived in the other. There were also two bedrooms in 

the basement: Rojics lived in one, and Terry Hess lived in the other. 

[5] On October 13, 2013, Elkhart Police Department Officer Jason Reed was 

dispatched to the house on a report of methamphetamine activity. Crowder 

answered the front door; her children were nearby. Crowder told Officer Reed 

that Rojics and Hess were in the basement. After Crowder summoned Rojics 

and Hess to the front door, Officer Reed told them that he was there to 

investigate methamphetamine activity and asked for permission to look around. 

Officer Reed’s initial walk-through revealed the presence of methamphetamine 

precursors as well as syringes and burnt tinfoil. Because of the presence of these 

items, Officer Reed decided to perform a more intensive search of the house. 

Officer Reed presented Rojics, Crowder, and Hess with a “Search Waiver 

Form”; all three adults consented to a more thorough search of the house. Id.

at 345. 

[6] By this time, more officers had arrived on the scene. The officers started 

searching the detached garage, where they found indicators of an active meth 
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lab. Because of the dangers associated with methamphetamine fumes, the 

officers decided to clear everyone from the house. 

[7] While Officer Reed was still clearing the house, McFall showed up. She told 

Officer Reed that she had been living in an upstairs bedroom for a couple of 

weeks and that she did not want them searching her room. The officers stopped 

searching and sought a search warrant for the house. 

[8] After a search warrant was obtained, Indiana State Police Clandestine Lab 

Officer Gretchen Smith searched the house. In McFall’s bedroom, Officer 

Smith found numerous items associated with the manufacture and ingestion of 

methamphetamine, such as two containers of Coleman fuel, Drano, a coffee 

grinder with a white-powder residue, cold packs, coffee filters, a funnel, 

baggies, sulfuric acid, Crystal Drain Opener, aluminum foil with burn residue, 

empty pseudoephedrine blister packs, a pair of pliers (which are used to strip 

lithium from batteries), syringes, and a pen (which is used to inhale 

methamphetamine). In a storage area between McFall’s and Crowder’s 

bedrooms, Officer Smith found a Faygo bottle that was being used in the 

methamphetamine-manufacturing process. Id. at 450-51. In the detached 

garage, Officer Smith found several items on or near a workbench: a 

reactionary vessel, more Coleman fuel, and coffee filters. Id. at 459; see also Ex. 

23 (photo of workbench). 

[9] The next day, October 14, a man named “Javier” came to the Elkhart Police 

Department and asked to speak to an officer from the drug unit. See, e.g., Tr. p. 
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754 (defense counsel’s closing argument identifying Javier by name). Detective 

Andrew Whitmyer, who was working on the case, talked to him. Javier, whom 

Detective Whitmyer did not know, showed Detective Whitmyer two videos, 

each a few seconds long, on his personal cell phone. One of the videos shows 

McFall, on the evening of October 12, sitting at the workbench in the detached 

garage on Center Street manipulating some tubing that is consistent with 

making methamphetamine. See id. at 565-66. The other video shows McFall 

sitting at the workbench messing with her hair. Detective Whitmyer asked for 

Javier’s identification, went over his background, and discussed his relationship 

with McFall. Because Javier gave several pieces of information that Detective 

Whitmyer knew to be true and thought could be useful to the drug unit, 

Detective Whitmyer planned to use Javier as a Confidential Source (“CS”) in 

other cases. Detective Whitmyer then took Javier’s phone, plugged it into a 

computer at the police department, and copied the videos to a DVD. Detective 

Whitmyer also made two still photos from the videos. Javier then left the 

police department with his cell phone. Detective Whitmyer did not list Javier’s 

name in any police reports in the case. 

[10] Thereafter, McFall was arrested and charged with one count: Class A felony 

dealing in methamphetamine (manufacturing) within 1000 feet of a youthprogram center. Ind. Code Ann. § 35-48-4-1.1 (West 2012); Appellant’s App. 

Vol. II p. 19. Among other people, the State listed “CS,” but not Javier, on its 

witness list for trial. Appellant’s App. Vol. II p. 46 (Amended Witness List). 
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[11] At the jury trial, Detective Whitmyer testified that the CS never ended up 

working for the Elkhart Police Department, which is common. Tr. p. 594. The 

CS did not testify at trial either. By this time, however, defense counsel had 

already figured out that the CS was Javier.1

 The State introduced the videos 

(Exhibit 27) and two still photos (Exhibits 28 & 29) through Detective 

Whitmyer. The videos and still photos have date and time stamps. They are all 

dated October 12; Exhibit 28 has a timestamp of 6:25 p.m. while Exhibit 29 has 

a timestamp of 6:42 p.m. McFall objected to the admission of the videos and 

photos; the trial court admitted them over her objection pursuant to Evidence 

Rule 901 and the silent-witness theory. Id. at 526-29. McFall then testified in 

her own defense. Specifically, McFall testified that on October 12, she and 

Javier, with whom she had an “unhealthy relationship,” id. at 666, were in the 

detached garage at Center Street. She was sitting at the workbench and Javier 

was sitting behind her. She specifically identified herself in the photos and 

videos and identified items in the photos and videos. See, e.g., id. at 663-65, 

698-99. In addition, she acknowledged that methamphetamine was being 

manufactured at the time the videos were taken; however, she claimed that 

Javier was the “cook” and that she was simply a meth addict who lived in a 

drug house. Finally, she denied that many of the items found in her bedroom 

were hers. 

 

1

 Neither the State nor defense counsel could locate Javier before trial. Tr. p. 521-22. They suspected that he 

had left the state. 
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[12] The jury found McFall guilty as charged. At the sentencing hearing, the trial 

court found the following aggravators: McFall has a criminal history (no 

felonies but misdemeanors for operating a motor vehicle without ever receiving 

a license (two), minor consumption of alcohol, and possession of marijuana); 

she has a history of abusing alcohol and drugs; children lived in the house on 

Center Street; she did not take advantage of addictions evaluation/treatment 

that was available to her through a previous conviction; and she has not taken 

responsibility for her own children. The court then identified the following 

mitigators: McFall “has done some things [while in jail] to better her situation”; 

she has family in place that is willing to help her; she exhibited remorse in the 

courtroom; and people provided statements in support of her. Appellant’s App. 

Vol. II p. 132. Concluding that the aggravators outweighed the mitigators, the 

trial court sentenced McFall to forty years. The court ordered McFall to serve 

the “first ten (10) years . . . executed at the [DOC].” Id. at 133. After the first 

ten-year portion of the sentence, the court ordered McFall to serve “the next 

twenty (20) years as a participant in the Elkhart County [Community] 

Corrections Home Detention Program.” Id. The court ordered “the final ten 

(10) years of her sentence suspended” to reporting probation. Id. 

[13] McFall now appeals. 

Discussion and Decision 

[14] McFall raises three issues on appeal. First, she contends that the trial court 

erred in admitting into evidence the cell-phone videos and still photos made 
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from the videos because they were not properly authenticated. Second, she 

contends that the evidence, even with the videos and photos, is insufficient to 

support her conviction. Last, she contends that her sentence is inappropriate. 

I. Admission of Cell-Phone Videos and Photos 

[15] McFall first contends that the trial court erred in admitting into evidence the 

cell-phone videos and still photos made from the videos. She argues that they 

were not properly authenticated because Javier, the CS, did not testify at trial. 

The State responds that the videos and photos were properly authenticated 

under the silent-witness theory. 

[16] 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. 13 Robert L. Miller, 

Jr., Indiana Practice, Indiana Evidence § 901.209 (4th ed. 2016). Here, because 

Javier did not testify at trial, the State sought to authenticate the videos and 

photos using the silent-witness theory. See Mays v. State, 907 N.E.2d 128 (Ind. 

Ct. App. 2009) (although the confidential informant (“CI”) did not testify at 

trial, the digital audio/video recording of the controlled buy was admitted into 

evidence through the detective pursuant to the silent-witness theory), trans. 

denied. 
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[17] In order to authenticate videos or photographs using the silent-witness theory, 

there must be evidence describing the process or system that produced the 

videos or photographs and showing that the process or system produced an 

accurate result. See Ind. Evidence Rule 901(b)(9). The requirements are “rather 

strict.” 13 Miller at § 901.209. That is, the proponent must show that the 

photograph or video was not altered in any significant respect, and the date the 

photograph or video was taken must be established when relevant. Id.; see also 

Wise v. State, 26 N.E.3d 137, 141 (Ind. Ct. App. 2015) (noting that when 

automatic cameras are involved, “there should be evidence as to how and when 

the camera was loaded, how frequently the camera was activated, when the 

photographs were taken, and the processing and changing of custody of the film 

after its removal from the camera.” (quotation omitted)), trans. denied. If a 

foundational requirement is missing, then the surrounding circumstances can be 

used. 13 Miller at § 901.209 (“Rule 901(b)(9) requires only that the process or 

system be described in such a way as to allow the trier of fact to find that it is 

more likely than not that the system produced an accurate result.”). 

[18] Here, the State introduced videos that Javier allegedly took on his personal cell 

phone on October 12 through Detective Whitmyer. There was no showing, 

however, that the videos had not been altered in any significant respect before

Javier showed up at the police station on October 14 and asked to speak to a 

member of the drug unit. This is unlike the typical CI case, where the CI 

records an event and the police then introduce the recording into evidence at 

trial because the CI does not testify. In those cases, the police use their own 
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recording equipment and remove the equipment from the CI when the event is 

over. See Mays, 907 N.E.2d at 132 (although the CI did not testify at trial, the 

recording of the controlled buy was admitted under the silent-witness theory; 

the detective testified that he personally prepared the audio/video recording 

equipment and then removed the equipment from the CI immediately after the 

controlled buy). Here, however, Detective Whitmyer exercised no control over 

the process used to record McFall and could not attest to the accuracy of the 

videos. Accordingly, the videos and photos were not properly authenticated 

when the trial court admitted them during Detective Whitmyer’s testimony. 

[19] However, we are not restricted solely to the circumstances presented to the trial 

court at the time of the ruling. Dausch v. State, 616 N.E.2d 13, 17 (Ind. 1993). 

A questionable foundation for the admissibility of evidence may be cured by 

later testimony. Id. On direct and cross exam, McFall identified herself in the 

videos and photos and acknowledged that the events depicted in them occurred 

on October 12. See, e.g., Tr. p. 660, 663-65, 698-99. Accordingly, any error in 

the admission of the videos and photos under the silent-witness theory was 

rendered harmless by McFall’s subsequent testimony. See Dausch, 616 N.E.2d 

at 17. 

II. Sufficiency of the Evidence 

[20] McFall next contends that the evidence is insufficient to support her conviction 

for Class A felony dealing in methamphetamine. Sufficiency-of-the-evidence 

claims face a steep standard of review: we consider only the evidence and 
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reasonable inferences most favorable to the convictions, neither reweighing 

evidence nor assessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958 

(Ind. 2016). We affirm the judgment unless no reasonable factfinder could find 

the defendant guilty. Id. 

[21] In order to convict McFall as charged here, the State had to prove that McFall 

knowingly manufactured2

 methamphetamine, pure or adulterated, within 1000 

feet of a youth-program center. Appellant’s App. Vol. II p. 19; Ind. Code Ann. 

§ 35-48-4-1.1 (West 2012).3

 McFall concedes that “throughout the house on . . . 

Center Street, including [her] room . . . and the garage, there were various items 

and precursors that are used in the manufacture of methamphetamine, and that 

active pots were found in the upstairs closet and the garage.” Appellant’s Br. p. 

26. However, McFall points out that many of these items were “also consistent 

with someone who was using methamphetamine, and [McFall] openly 

admitted she was addicted at the time.” Id. Accordingly, she argues that the 

evidence is insufficient to prove beyond a reasonable doubt that she “was 

involved beyond merely using methamphetamine.” Id. 

[22] In McFall’s bedroom, Officer Smith found numerous items associated with the 

manufacture and ingestion of methamphetamine, such as two containers of 

Coleman fuel, Drano, a coffee grinder with a white-powder residue, cold packs, 

 

2 See Ind. Code § 35-48-1-18 (defining “manufacture”). 

3

 McFall does not dispute that the house on Center Street was within 1000 feet of a youth-program center. 
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coffee filters, a funnel, baggies, sulfuric acid, Crystal Drain Opener, aluminum 

foil with burn residue, empty pseudoephedrine blister packs, a pair of pliers 

(which are used to strip lithium from batteries), syringes, and a pen (which is 

used to inhale methamphetamine). Officer Smith testified that except for the 

syringes, pen, and foil, the other items were specifically associated with 

manufacturing methamphetamine. Tr. p. 438-47. In addition, in a storage area 

between McFall’s and Crowder’s bedrooms, Officer Smith found a Faygo bottle 

that was being used in the methamphetamine-manufacturing process. This pop 

bottle, easily accessible to McFall and coupled with the items found in her 

bedroom, is a very strong indicator that she was manufacturing 

methamphetamine. Finally, McFall identified herself in the videos and still 

photos and admitted that methamphetamine was being manufactured at the 

time. Although McFall claimed that Javier was the cook and that she was just 

an addict, the jury was entitled to believe otherwise. We therefore find that the 

evidence is sufficient to support McFall’s conviction for Class A felony dealing 

in methamphetamine. 

III. Inappropriate Sentence 

[23] Last, McFall contends that her forty-year sentence—with ten years executed in 

the DOC, twenty years of home detention, and ten years suspended to 

probation—is inappropriate. She asks us to reduce the executed portion of her 

sentence. See Appellant’s Br. p. 33. The Indiana Constitution authorizes 

independent appellate review and revision of a trial court’s sentencing decision. 

Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). We implement this authority 
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through Indiana Appellate Rule 7(B), which provides that we may revise a 

sentence authorized by statute if, after due consideration of the trial court’s 

decision, we find the sentence is inappropriate in light of the nature of the 

offense and the character of the offender. Id. McFall bears the burden on 

appeal of establishing that her sentence is inappropriate. Childress v. State, 848 

N.E.2d 1073, 1080 (Ind. 2006). 

[24] The principal role of Rule 7(B) review “should be to attempt to leaven the 

outliers, and identify some guiding principles for trial courts and those charged 

with improvement of the sentencing statutes, but not to achieve a perceived 

‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 

2008). Whether a sentence is inappropriate ultimately turns on the culpability 

of the defendant, the severity of the crime, the damage done to others, and a 

myriad of other factors that come to light in a given case. Id. at 1224. In 

assessing whether a sentence is inappropriate, appellate courts may take into 

account whether a portion of the sentence is ordered suspended or is otherwise 

crafted using any of the variety of sentencing tools available to the trial judge. 

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). These tools include 

probation, home detention, placement in a community-corrections program, 

and executed time in a DOC facility. Id.
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[25] Here, McFall’s offense was elevated to a Class A felony because it occurred 

within 1000 feet of a youth-program center.4

 At the time of the offense, the 

sentencing range for a Class A felony was between twenty and fifty years, with 

an advisory sentence of thirty years. Ind. Code § 35-50-2-4. The trial court 

sentenced her to an above-advisory term of forty years. 

[26] As for the nature of the offense, McFall manufactured methamphetamine in a 

drug house in which a housemate’s children also lived. 

[27] As for McFall’s character, her limited criminal history reflects that she is not a 

professional drug dealer or manufacturer but rather an addict who moved into a 

drug house because it gave her easier access to methamphetamine. At age 

twenty-seven, this is her first felony conviction. As the trial court 

acknowledged, McFall, after having spent two-and-a-half years in jail, 

expressed remorse at sentencing. McFall was “grateful” for her sobriety and 

the knowledge that she had gained while in jail. Tr. p. 805. Also as the trial 

court acknowledged, several people testified and submitted letters on her behalf. 

For example, McFall’s creative-writing teacher explained “how far [McFall] 

ha[d] come in her effort to rebuild her life” while in jail. Appellant’s App. Vol. 

II p. 130. Her GED teacher also submitted a letter describing how much 

McFall had “impressed” her. Id. at 131. In addition, McFall had secured a job 

for home detention. Id. at 129. Finally, McFall’s father submitted a letter in 

 

4

 This is no longer an enhancing circumstance under the amended sentencing statutes. See Ind. Code Ann. § 

35-48-1-16.5 (West Supp. 2016). 
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which he opined that McFall’s arrest for this crime was the only thing that 

could have saved her from her addiction. Id. at 128. Indeed, the State 

recognizes on appeal that it is “commendable that [McFall] has made positive 

changes in her life since she has been incarcerated.” Appellee’s Br. p. 25. 

[28] Given that this is McFall’s first felony conviction and the progress that she has 

made since her arrest to overcome her addiction and get her life in order, we 

believe that an above-advisory sentence is inappropriate. We therefore revise 

McFall’s sentence to the advisory term of thirty years, with fourteen years 

executed and sixteen years suspended (with two of those suspended years to be 

served on probation). Of the executed time, McFall must serve ten years in the 

DOC and four years on home detention. All portions of her sentence should 

include substance-abuse treatment as needed. 

[29] Affirmed in part, reversed in part. 

Bradford, J., and Brown, J., concur.