Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 1 of 15 A TTORNEY FOR A PPELLANT Donald R. Shuler Barkes, Kolbus, Rife & Shuler, LLP Goshen, Indiana A TTORNEYS FOR A PPELLEE 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, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -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.Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 2 of 15 

# 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 th e “silent-witness theory,” there must be evidence describing the process or system that produced the videos and showing that the video is an accurate represen tation 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 admissio n of the videos under the silent-witness theory was rendered ha rmless by McFall’s subsequent testimony.

[3] McFall also contends that th e evidence is insu fficient to support her conviction and that her forty-year sentence is in appropriate. While we find that the evidence is sufficient to su pport her conviction, we re vise her sentence to the advisory term of thirty years given that this is McFall’s firs t felony conviction and the progress that she has made sinc e her arrest to overcome her addiction and get her life in order.Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 3 of 15 

# 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 he r 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 we re nearby. Crowder told Officer Reed that Rojics and Hess were in the base ment. After Crowder summoned Rojics and Hess to the front door, Officer R eed told them that he was there to investigate methamphetamine activity and asked for permission to look around. Officer Reed’s initial walk-through rev ealed the presence of methamphetamine precursors as well as syringes and burnt tinfoil. Be cause of the presence of these items, Officer Reed decided to perform a more intensive search of the house. Officer Reed presented Rojics, Crowde r, and Hess with a “Search Waiver Form”; all three adults co nsented to a more thorough search of the house. Id.
at 345.

[6] By this time, more officers had arrive d on the scene. The officers started searching the detached garage, where they found indicato rs of an active methCourt of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 4 of 15 lab. Because of the dangers associat ed with methamphetamine fumes, the officers decided to clear everyone from the house.

[7] While Officer Reed was still clearing th e 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 s earching 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 ho use. In McFall’s bedroom, Officer Smith found numerous items associated with the manufacture and ingestion of methamphetamine, such as two containe rs of Coleman fuel, Drano, a coffee grinder with a white-powder residue, cold packs, coffee filters, a funnel, baggies, sulfuric acid, Crystal Drain Open er, aluminum foil with burn residue, empty pseudoephedrine blister packs, a pair of pliers (which are used to strip lithium from batteries), syringes, an d a pen (which is used to inhale methamphetamine). In a storage ar ea 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 it ems on or near a workbench: a reactionary vessel, more Colema n 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.Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 5 of 15 754 (defense counsel’s closing argument id entifying Javier by name). Detective Andrew Whitmyer, who was wo rking on the case, talked to him. Javier, whom Detective Whitmyer did not know, show ed 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, si tting at the workbench in the detached garage on Center Street manipulating so me tubing that is consistent with making methamphetamine. See id. at 565-66. The other video shows McFall sitting at the workbench messing with he r hair. Detective Whitmyer asked for Javier’s identification, went over his background, and discussed his relationship with McFall. Because Javier gave severa l pieces of information that Detective Whitmyer knew to be true and though t could be useful to the drug unit, Detective Whitmyer planned to use Javier as a Confidential Source (“CS”) in other cases. Detective Whitmyer then t ook Javier’s phone, plugged it into a computer at the police department, and co pied the videos to a DVD. Detective Whitmyer also made two still photos fr om the videos. Javier then left the police department with his cell phone. Detective Whitmyer di d not list Javier’s name in any police reports in the case.

[10] Thereafter, McFall was arrested and ch arged with one count: Class A felony dealing in methamphetamine (manufactu ring) 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 St ate listed “CS,” but not Javier, on its witness list for trial. Appellant’s App. Vol. II p. 46 (Amended Witness List).Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 6 of 15 [11] At the jury trial, Detect ive 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 (E xhibits 28 & 29) through Detective Whitmyer. The videos and still photos ha ve 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 objec ted 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 wa s 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 acknowled ged that methamphetamine was being manufactured at the time the videos we re 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.Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 7 of 15 [12] The jury found McFall guilty as charged. At the sent encing hearing, the trial court found the following aggravators: McFall has a criminal history (no felonies but misdemeanors for operating a motor vehicle with out ever receiving a license (two), minor consumption of al cohol, and possessi on of marijuana); she has a history of abusing alcohol and drugs; children lived in the house on Center Street; she did not take advant age of addictions evaluation/treatment that was available to her through a prev ious conviction; and she has not taken responsibility for her own children. Th e court then identi fied 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 year s. 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 co urt 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. Fi rst, she contends that the trial court erred in admitting into evidence the ce ll-phone videos and still photos madeCourt of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 8 of 15 from the videos because they were not properly authentica ted. Second, she contends that the evidence, even with the videos and photos, is insufficient to support her conviction. Last, she contends th at her sentence is inappropriate.


## I. Admission of Cell-Phone Videos and Photos

[15] McFall first contends that the trial cour t erred in admitting into evidence the cell-phone videos and still photos made fr om the videos. She argues that they were not properly authenticated because Ja vier, the CS, did not testify at trial. The State responds that the videos an d 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 identify ing an item of evidence, the proponent must produce evidence sufficient to suppo rt 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 tr ial, the State sought to au thenticate the videos and photos using the sile nt-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 pursua nt to the silent-witness theory), trans. denied

.Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 9 of 15 [17] In order to authenticate videos or ph otographs using the silent-witness theory, there must be evidence describing th e 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 an y 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 sh ould 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 al low 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 vide os 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 statio n on October 14 and asked to speak to a member of the drug unit. This is unl ike the typical CI case, where the CI records an event and the po lice then introduce the re cording into evidence at trial because the CI does not testify. In those cases, the police use their ownCourt of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 10 of 15 recording equipment and remove the equi pment 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 ad mitted under the silent-witness theory; the detective testified that he personal ly prepared the audio/video recording equipment and then removed the equipmen t from the CI immediately after the controlled buy). Here, howe ver, Detective Whitmyer ex ercised no control over the process used to record McFall and co uld not attest to the accuracy of the videos. Accordingly, the videos and ph otos were not properly authenticated when the trial court admitted them duri ng 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 admi ssibility of eviden ce 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 supp ort her conviction for Class A felony dealing in methamph etamine. Sufficien cy-of-the-evidence claims face a steep standard of review : we consider only the evidence andCourt of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 11 of 15 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 unl ess no reasonable fa ctfinder could find the defendant guilty. Id.

[21] In order to convict McFall as charged he re, the State had to prove that McFall knowingly manufactured 2 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 ma nufacture of methamphetamine, and that active pots were found in the upstairs cl oset and the garage.” Appellant’s Br. p. 26. However, McFall points out that ma ny of these items were “also consistent with someone who was using metham phetamine, and [McFall] openly admitted she was addicted at the time.” Id. Accordingly, she argues that the evidence is insufficient to prove beyo nd a reasonable doubt that she “was involved beyond merely us ing methamphetamine.” Id.

[22] In McFall’s bedroom, Officer Smith foun d numerous items associated with the manufacture and ingestion of methamphet amine, 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 (def ining “manufacture”).

3 McFall does not dispute that the house on Center Stre et was within 1000 feet of a youth-program center.Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 12 of 15 coffee filters, a funnel, baggies, sulfuric acid, Crystal Drain Opener, aluminum foil with burn residue, empty pseudoephe drine blister packs, a pair of pliers (which are used to strip lithium from ba tteries), syringes, and a pen (which is used to inhale methamphetamine). Offi cer Smith testified that except for the syringes, pen, and foil, the other item s 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 methamphetam ine-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 identi fied herself in the videos and still photos and admitted that methamphet amine 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 believ e otherwise. We ther efore 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 dete ntion, 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 In diana Constituti on 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 authorityCourt of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 13 of 15 through Indiana Appellate Rule 7(B), wh ich provides that we may revise a sentence authorized by statut e if, after due consideration of the trial court’s decision, we find the sentence is inappr opriate in light of the nature of the offense and the characte r of the offender. Id. McFall bears the burden on appeal of establishing that he r 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 atte mpt to leaven the outliers, and identify some guiding principles for tria l courts and those charged with improvement of the sentencing st atutes, 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 inappropri ate ultimately turns on the culpability of the defendant, the seve rity of the crime, the da mage done to others, and a myriad of other factors that co me to light in a given case. Id. at 1224. In assessing whether a sentence is inapprop riate, 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 sentenci ng 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.Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 14 of 15 [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 wa s 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-advi sory term of forty years.

[26] As for the nature of the offense, Mc Fall manufactured methamphetamine in a drug house in which a housemate’ s children also lived.

[27] As for McFall’s character, her limited crim inal 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 felo ny conviction. As the trial court acknowledged, McFall, after having sp ent two-and-a-half years in jail, expressed remorse at sentencing. McFa ll 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 pe ople testified and submitte d letters on her behalf. For example, McFall’s creative-writing teacher explained “how far [McFall] ha[d] come in her effort to rebuild her li fe” while in jail. Appellant’s App. Vol. II p. 130. Her GED teacher also subm itted 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).Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017 Page 15 of 15 which he opined that McFall’s arrest fo r 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 “commend able that [McFall] has made positive changes in her life since she has been in carcerated.” Appellee’s Br. p. 25.

[28] Given that this is McFall’s first felony conviction an d the progress that she has made since her arrest to overcome her a ddiction and get her life in order, we believe that an above-adviso ry sentence is inappropriat e. We therefore revise McFall’s sentence to the advisory term of thirty years, with fourteen years executed and sixteen years suspended (wit h 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 treatme nt as needed.

[29] Affirmed in part, reversed in part.
Bradford, J., and Brown, J., concur.