MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                       Aug 15 2019, 10:13 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Bradley Keffer                                           Curtis T. Hill, Jr.
Brooke Smith                                             Attorney General of Indiana
Keffer Hirschauer LLP                                    Tyler Banks
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Donovan Andrew Thomas,                                   August 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2979
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82C01-1801-MR-58



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019                      Page 1 of 22
[1]   Donovan Andrew Thomas appeals his convictions for murder, conspiracy to

      commit armed robbery as a level 3 felony, and attempt to commit armed

      robbery as a level 3 felony. Thomas raises three issues, which we revise and

      restate as:


            I.    Whether the trial court abused its discretion in denying his request
                  for a continuance;

           II.    Whether the court abused its discretion in admitting the original
                  and edited recordings of the surveillance footage of the Carousel
                  Restaurant as evidence; and

          III.    Whether the court committed fundamental error in instructing the
                  jury.

      We affirm.

                                      Facts and Procedural History

[2]   Several days prior to December 30, 2017, DaSean Summers and Thomas

      smoked marijuana, Summers shared that he was “about to reup,” which means

      “get some more” marijuana, and Thomas said that he wanted to purchase six

      pounds. Transcript Volume III at 6. At some point, Summers arranged to meet

      with Levi Lewis, from whom he had previously bought a pound of marijuana

      for about $2300, and Lewis agreed to sell him eight pounds for a total “[i]n the

      ballpark of $18,000.” Transcript Volume II at 154. Lewis asked Michael

      Pardee if he would supply the eight pounds and accompany him to ensure

      everything went smoothly.


[3]   On December 30, 2017, Lewis texted Summers that the transaction would

      occur that day. Lewis and Pardee drove to Evansville in Lewis’s 2011

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 2 of 22
      Volkswagen Jetta to make the deal with the eight pounds of marijuana in

      individual one-pound vacuum-sealed bags which were together in a single black

      trash bag.


[4]   Thomas agreed to assist Summers and be “part of th[e] drug deal” “acting as

      muscle.” Transcript Volume III at 105. Thomas had a gun and he and

      Tameron Knuckles picked up Romanno Wright and then Summers. Id. at 106.

      Summers had about “52, 5300” dollars on him to purchase two pounds of

      marijuana, but never saw Thomas or Wright with the money for the six pounds

      Thomas planned to purchase. Id. at 10-11. As the four of them pulled up to the

      Washington Square Mall, Thomas said, “we should just get on that and rob

      them,” and Wright agreed with him. Id. at 15. Summers responded that he

      was “not with that and it’s not going to be none of that.” Id.


[5]   Summers and Lewis communicated and coordinated the meeting, and they

      parked the vehicles in front of the Washington Square Mall. Id. at 11. Before

      entering Lewis’s vehicle, Summers asked for Thomas’s money, and Thomas

      refused and told him that he wanted to “be there when the transaction went

      down.” Id. at 12. Because it was a busy environment, they agreed to drive

      across the street into the parking lot of the Carousel Restaurant, and they

      parked around the back of it.


[6]   When Summers returned to Lewis’s vehicle, there was tension. The marijuana

      was passed around and everybody touched it, and Summers exited to retrieve

      trash bags for his two pounds of marijuana. When he returned, Lewis asked to


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 3 of 22
      see some money, Summers started counting his money, and Thomas said he

      left it in the other vehicle, and exited and went over to the vehicle. When

      Thomas said he left the money in the other vehicle, Summers had a “bad

      feeling” because “of the conversation that [he] had overheard” between

      Thomas and Wright. Id. at 15.


[7]   Thomas returned to the front passenger seat, Lewis, Pardee and Summers

      exchanged money and the two pounds of marijuana, Summers looked up and

      saw Thomas “leaning forward,” and “[Summers] just got out of the car.” Id. at

      16. Thomas reached over and turned off Lewis’s vehicle. Pardee said, “no, no,

      no, it doesn’t need to go down this way,” Thomas shot Pardee, and the bullet

      entered his left cheek, passed through his head, and exited. Transcript Volume

      II at 155. Pardee died as a result of the gunshot. Thomas left the scene, met up

      with Summers, and demanded Summers give him the two pounds of

      marijuana.


[8]   On January 3, 2018, the State charged Thomas with Count I, felony murder,

      alleging that Thomas killed Pardee while “committing or attempting to commit

      robbery”; Count II, robbery resulting in serious bodily injury as a level 2 felony;

      Count III, conspiracy to commit armed robbery as a level 3 felony; and Count

      IV, armed robbery as a level 3 felony, alleging that Thomas knowingly or

      intentionally took “property from [Lewis] or the presence of” Lewis by force or

      by threatening the use of force while armed with a deadly weapon. Appellant’s

      Appendix Volume II at 21. The State also filed sentence enhancement

      allegations claiming that Thomas committed the felony offenses while he was a

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 4 of 22
       member of, and at the direction of or in affiliation with, a criminal organization

       and that he knowingly and intentionally used a firearm while committing

       Counts I and II.


[9]    A June 11, 2018 entry in the chronological case summary (“CCS”) indicates

       that Thomas’s original public defender had a conflict, and a June 13, 2018 CCS

       entry states that the public defender’s office reassigned a special public defender

       (“Thomas’s counsel”) to the case. A June 27, 2018 entry states that a jury trial

       was scheduled for October 22, 2018.


[10]   On October 1, 2018, the court held a hearing in which Thomas’s counsel asked

       for the case “to be reset for a short period of time” beyond the October 22nd

       date and explained that he was assigned to the case following the discovery of a

       conflict with original counsel and “that’s caused some disruption getting

       discovery . . . I was late in getting an autopsy report.” Transcript Volume IV at

       4. He also indicated that “[a] couple of weeks ago [he] was notified by [the

       State] that a statement had been given by” Summers and that he would want to

       depose him. Id. The State indicated that Summers was a co-defendant and that

       it believed it had provided all of the discovery, “but due to the change over in

       attorneys, we’re going to meet and go over, there is a lot of video, a lot of

       details.” Id. The trial court denied the motion for a continuance and explained

       to Thomas’s counsel that he still had three weeks to prepare and that he “had

       since June when we set it, it’s a murder case, we have multiple murder cases in

       the court, we just can’t back them up, I mean we’re getting close to a year.” Id.

       at 5. After the court stated, “after you meet with the State, if you don’t have all

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 5 of 22
       the discovery which should have already been turned over, I’ll order them to

       turn it over to you by this Friday,” Thomas’s counsel indicated that he was

       “going to be out of town on business the later part of this week and [he had] a

       lot of other matters to deal with in the next three weeks, so [he did not] think

       it’s unreasonable under the circumstances to seek a short continuance.” Id. at

       5-6. The court responded that, with its calendar and the number of cases it had,

       “we’re going to try it on that date.” Id. at 6.


[11]   On October 15, 2018, the State filed an amended information that charged

       Thomas with Count V, attempted armed robbery as a level 3 felony under “I.C.

       35-42-5-1(a)(1) & I.C. 35-41-5-1(a),” alleging that Thomas “did knowingly or

       intentionally attempt to take property from [Lewis] or the presence of [Lewis],

       by using force or by threatening the use of force while [Thomas] was armed

       with a deadly weapon, by pointing a firearm at [Lewis] and demanding [Lewis]

       give [Thomas] marijuana.” Appellant’s Appendix Volume II at 35. On

       October 19, 2018, the court held a hearing in which Thomas’s counsel indicated

       that he was able to take Summers’s deposition “but now the State tells me that I

       only received a part of that statement, it was in two different segments, and I’ve

       just been given the disc today of a further statement by” Summers, and moved

       to vacate the trial date. Transcript Volume IV at 10. The prosecutor

       responded:


               We were not provided that by the police. [Another prosecutor]
               attended that and he watched the video remotely and we did not
               discover that we did not have both parts, we thought it was all in
               one part, it was one interview that was in two sections, we did

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 6 of 22
                not discover that we didn’t have it until yesterday. We asked the
                police to provide the interview, they did, but they only provided
                the second part, so it’s not like we’ve been sitting on both parts
                and just decided to give him the first part, so we didn’t discover
                he didn’t have it until yesterday afternoon.


       Id. at 10-11. The State indicated that the additional video was approximately

       fifty minutes, and the court directed Thomas’s counsel to review it, affirmed the

       trial date, and denied his motion to continue.


[12]   With respect to the amended charging information, the State argued that Count

       V had the same elements as Count IV, except that it was an attempt count

       which did not “change his defenses” and had the “same victim, . . . same date,

       same time, same events.” Id. at 12. After some argument, the State indicated

       that it would move either to dismiss Count IV as long as Count V “were to

       stand as the attempt” or to amend Count IV to be an attempted robbery using

       the language that it proposed for Count V. Id. at 15. Thomas’s counsel

       continued his objection, and the court permitted the State to amend count IV

       “to use the language that would have been an additional repetitive count.” 1 Id.

       at 17.




       1
         The record contains an amended information, filed on October 20, 2018, which states in part: “Count 4: . . .
       [Thomas] did knowingly or intentionally attempt to take property from [Lewis] or the presence of [Lewis], by
       using force or by threatening the use of force while [Thomas] was armed with a deadly weapon, by pointing a
       firearm at [Lewis] and demanding [Lewis] give [Thomas] marijuana.” Appellant’s Appendix Volume II at
       74.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019                  Page 7 of 22
[13]   At trial, Evansville Police Department Detective John Pieszchalski testified that

       he had training in “how to take video evidence from, that’s maybe viewed from

       proprietary software capturing into a video” and that he had been to two

       separate classes, the first one involved the collection of “cameras and digital

       media, multi-media evidence, also DVR systems, that was a three day, 24 hour

       course [which] did nothing but entail pulling that video off, being able to view

       it.” Transcript Volume II at 100-101. He testified that he first viewed the

       Carousel video on the machine “[i]nside the manager’s office in the back.” Id.

       at 105. The prosecutor showed him State’s Exhibit 89 and asked if he

       recognized it, and Detective Pieszchalski stated that it was “the video that [he]

       collected originally on scene and the second day when [he] had to come back

       and get the further one hour.” Id. at 102. When asked what device he used to

       collect the Carousel data he stated that “[t]hat all depends, it depends on what

       they have.” Id. at 103. Referencing the DVD discs in Detective Pieszchalski’s

       hand, the prosecutor asked if he transferred the media from a thumb drive to a

       computer, and Detective Pieszchalski explained:


               I go get the Video, I export it on to my thumb drive from the
               DVR system or the PC system, I come back to the office, I
               download it off of my thumb drive on to my work station which
               I’ll use Quickhash, what happens is we make a hash of it . . . all it
               is [] mathematical algorithm that gives that video that file a
               persay [sic] fingerprint that we can come back and match to, it’s
               used across many different programs, but it’s the same, so I’ll
               hash it over when I do it on my work state which will become my
               work copy and then I’ll also burn them onto an original, these
               will be considered original DVDR’S and it will be hashed that
               way too to make sure that there’s no change into it and then

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 8 of 22
        these will be stored into evidence and then I’ll have my work
        copy so if anything needs to come up off of it, I can work off of
        those and not the originals.


Id. at 103-104. Detective Pieszchalski answered affirmatively when asked if he

“compare[d] the thumb drive or flash drive hash values to what was burned on

those discs,” if the “hash values on the thumb drive are the same as the ones on

the DVD disc,” and “[s]o it’s the same video.” Id. at 104. When the State

moved to admit State’s Exhibit 89, the following exchange occurred:


        [Thomas’s counsel]: Preliminary questions, please. The final
        product originally was captured from the Carousel’s recording on
        a thumb drive?

        [Detective Pieszchalski]: Yes.

        [Thomas’s counsel]: Then for security purposes you transferred
        the thumb drive to this permanent disc?

        [Detective Pieszchalski]: Yes.

        [Thomas’s counsel]: Did you personally do that?

        [Detective Pieszchalski]: Yes.

        [Thomas’s counsel]: Did you find any flaws or errors or problems
        in the Carousel system, any problems with the Carousel
        recording system that you could determine?

        [Detective Pieszchalski]: No problem that I viewed.

        [Thomas’s counsel]: Okay. Did the thumb drive, based upon
        your examination extraction, accurately record the Carousel
        Video portions that you extracted?

        [Detective Pieszchalski]: Yes.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 9 of 22
                [Thomas’s counsel]: And was there an accurate extraction based
                upon your examination from the thumb drive to the permanent
                system before you cleaned the thumb drive?

                [Detective Pieszchalski]: Yes, using Quickhash and the hash
                values.


       Id. at 104-105. When asked if he obtained the original video from “Carousel

       ownership or search warrant,” Detective Pieszchalski indicated that other

       detectives had already been there and spoken to the owner or manager there

       prior to him arriving on the scene. Id. at 105. He answered in the negative

       when asked “[b]ut you’re not aware of how that permission was granted to the

       EPD,” and Thomas’s counsel stated that he was “not accusing the EPD of

       pirating this . . . , but I think we need a consent or the manager here” and the

       court admitted State’s Exhibit 89 over objection. 2 Id. at 105-106.


[14]   At the conclusion of the State’s presentation of the evidence, which consisted in

       part of the testimony of twelve witnesses including Lewis and Summers,

       Thomas’s counsel moved for judgment on the evidence, and the court granted

       the motion as to Count II and denied it as to the other counts. Thomas testified

       that Lewis pulled a gun and pointed it towards the “back-rear door, door area




       2
        Before Thomas testified on the third day of trial, the court discussed and clarified with the State that its
       Exhibit 89a was “the original Carousel videos that [Detective Pieszchalski] put on a flash drive and then
       copied on the three discs,” and Exhibit 89b was “the compilation of the incident that the jury has seen.”
       Transcript Volume III at 78-79.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019                     Page 10 of 22
       where Wright was, had approached,” that he did not shoot Pardee, and that he

       left the car and ran once Lewis pulled the gun. Transcript Volume III at 95.


[15]   In its final instructions to the jury, the court included Instruction No. 2, which

       states:


                 In Count 1, the statute defining the offense of Murder, a felony,
                 which was in force at the time of the offense charged, reads in
                 part as follows: A person who kills another human being while
                 committing or attempting to commit Robbery commits Murder,
                 a felony.

                 Before you may convict the Defendant in Count l, the State must
                 have proved each of the following elements beyond a reasonable
                 doubt:

                        1. The Defendant, Donovan Andrew Thomas,

                        2. killed

                        3. Michael Pardee

                        4. while committing or attempting to commit Robbery,
                           which is defined as:

                                a. knowingly or intentionally

                                b. taking property from another person or taking
                                property from the presence of another person

                                c. by using or threatening the use of force.

                 If the State failed to prove each of these elements beyond a
                 reasonable doubt, you must find the Defendant not guilty of
                 Murder, a felony, as charged in Count l.


       Appellant’s Appendix Volume II at 107. Instruction No. 5 states:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 11 of 22
               Aiding, inducing, or causing an offense is defined by law as
               follows: A person who knowingly or intentionally aids, induces,
               or causes another person to commit an offense commits that
               offense.

               A person may be convicted of aiding, inducing, or causing an
               offense even if the other person has not been prosecuted for the
               offense, has not been convicted of the offense, or has been
               acquitted of the offense.


       Id. at 112. Instruction A provides: “The rule of law which requires proof of

       guilt beyond a reasonable doubt applies to each juror individually. Each of you

       must refuse to vote for conviction unless you are convinced beyond a

       reasonable doubt of the Defendant’s guilt. Your verdict must be unanimous.”

       Id. at 127. Instruction B states in part:


               If the evidence in this case is susceptible of two constructions or
               interpretations, each of which appears to be reasonable, and one
               of which points to the guilt of the Defendant, and the other to the
               Defendant’s innocence, it is your duty, under the law, to adopt
               that interpretation which will admit of the Defendant’s
               innocence, and reject that which points to the Defendant’s guilt.


       Id. Instruction E provided that “[t]o return a verdict, all of you must agree to it.

       In other words, it must be unanimous.” Id. at 130.


[16]   After the jury returned guilty verdicts for each of the remaining counts, Thomas

       pled guilty to the firearm enhancement, and the court granted the State’s

       motion to dismiss the gang enhancement. The court sentenced Thomas to fifty-

       five years increased by an additional ten years for the firearm enhancement for

       a total of sixty-five years on the murder conviction, to nine years on the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 12 of 22
       conspiracy to commit armed robbery conviction, and to six years on the

       attempt to commit armed robbery conviction, and ordered the sentences to be

       served concurrently.


                                                   Discussion

                                                         I.


[17]   The first issue is whether the trial court abused its discretion in denying

       Thomas’s request for a continuance. Thomas maintains the court had dates

       available that would have allowed him the opportunity to fully investigate

       evidence that was withheld by the State until the eve of trial or, in the alternative,

       the court could have excluded certain evidence from trial. He argues that the

       State “failed to turn over material evidence” when it disclosed Summers’ “vitally

       important” statement against him ten months into the case and then, the last

       business day before trial, provided him with fifty minutes of the recorded

       statement that had not been previously disclosed. Appellant’s Brief at 24. He

       contends that he “suggested a trial date within one year that may have been

       available on the court’s calendar” which would have been suitable, and argues

       that while he did depose Summers after the October 1, 2018 hearing, he had

       virtually no opportunity before trial to conduct a second deposition of Summers

       after the remaining fifty minutes of statement was provided. Id. at 23. In his

       reply brief, he asserts that the court denied his requests “based solely on

       calendaring conditions and slippery slope-style concerns about other pending

       cases.” Appellant’s Reply Brief at 5.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 13 of 22
[18]   Rulings on non-statutory motions for continuance are within the trial court’s

       discretion and will be reversed only for an abuse of that discretion and resultant

       prejudice. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (citing Maxey v.

       State, 730 N.E.2d 158, 160 (Ind. 2000)). An abuse occurs only where the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances. Id. (citing Palmer v. State, 704 N.E.2d 124, 127 (Ind. 1999)).

       “There is a strong presumption that the trial court properly exercised its

       discretion.” Id. (quoting Warner v. State, 773 N.E.2d 239, 247 (Ind. 2002)).

       “We will not conclude that the trial court abused its discretion unless the

       defendant can demonstrate prejudice as a result of the trial court’s denial of the

       motion for continuance.” Stafford v. State, 890 N.E.2d 744, 750 (Ind. Ct. App.

       2008). Continuances to allow more time for preparation are not favored and are

       granted only by showing good cause and in the furtherance of justice. Id. (citing

       Timm v. State, 644 N.E.2d 1235, 1237 (Ind. 1994)). Further, motions to allow

       more time for preparation “require a specific showing as to how the additional

       time would have aided counsel.” Zanussi v. State, 2 N.E.3d 731, 734 (Ind. Ct.

       App. 2013).


[19]   The record reveals that the public defender’s office reassigned Thomas a special

       public defender in June 2018, two weeks before the court scheduled the jury trial

       for October 22, 2018. Thomas’s counsel first asked for a continuance on October

       1, 2018, explaining there was some disruption in obtaining an autopsy report,

       that a couple of weeks prior the State had notified him that Summers had given a

       statement, and that he wished to depose Summers. In denying the motion, the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 14 of 22
       court indicated to Thomas’s counsel that if, after meeting with the State, he did

       not have everything which should have already been turned over, it would order

       the State to do so. At the October 19, 2018 hearing, Thomas’s counsel indicated

       that he had deposed Summers and moved to vacate the trial date because he had

       just then received the second of two segments of the statement, which was

       approximately fifty minutes in length. The State responded that the police had

       not provided it with the second segment; that the prosecutor who attended the

       interview watched the video remotely; that it had thought the interview was all in

       one part and did not discover that it did not have both parts until the day prior to

       the hearing; and, that it did not discover Thomas did not have the second

       segment until the afternoon of the day prior to the hearing. Thomas’s counsel

       received the fifty-minute recording three days prior to trial, and he did not renew

       his motion for a continuance on the morning of trial. Thomas does not provide a

       specific showing of how additional time would either have aided counsel or be in

       the furtherance of justice. Under these circumstances, we find that the trial court

       did not abuse its discretion.


                                                         II.


[20]   The next issue is whether the trial court abused its discretion in admitting the

       original and edited recordings of the surveillance footage of the Carousel

       Restaurant as evidence. Generally, we review the court’s ruling on the

       admission or exclusion of evidence for an abuse of discretion. Roche v. State,

       690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. Admission of photographs and

       videotapes lies within the sound discretion of the court, and its ruling will not be

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 15 of 22
       disturbed absent an abuse of that discretion. Shepherd v. State, 690 N.E.2d 318,

       324 (Ind. Ct. App. 1997) (citing Isaacs v. State, 659 N.E.2d 1036, 1043 (Ind.

       1995), reh’g denied, cert. denied 519 U.S. 879, 117 S. Ct. 205 (1996)), trans. denied,

       disagreed with on other grounds. We will reverse only if the trial court’s ruling was

       clearly against the logic and effect of the facts and circumstances before it.

       McCallister v. State, 91 N.E.3d 554, 561 (Ind. 2018) (citing Knapp v. State, 9

       N.E.3d 1274, 1281 (Ind. 2014), cert. denied, ––– U.S. ––––, 135 S. Ct. 978 (2015)).


[21]   Thomas argues that the State, by and through Detective Pieszchalski, did not

       establish a sufficient foundation for the admission of the original or edited

       digital video evidence of Exhibits 89a and its derivative 89b. He contends in

       essence that the State did not present any witness or evidence as to how and

       when the video camera was loaded or activated, when the photographs were

       taken, and the processing and chain of custody of the film after its removal from

       the camera, and thus that the State failed to make a showing of the authenticity

       and competency of the digital video evidence collected from the Carousel

       Restaurant.


[22]   Ind. Evidence Rule 901(a) 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.” Absolute proof of authenticity is not required. M.T.V. v. State, 66

       N.E.3d 960, 963 (Ind. Ct. App. 2016), trans. denied. Rather, the proponent of

       the evidence must establish only a reasonable probability that the evidence is

       what it is claimed to be. Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 16 of 22
2014), trans. denied. Authenticity may be established, among other methods, by

“[t]estimony of a witness with knowledge that a matter is what it is claimed to

be.” Ind. Evidence Rule 901(b)(1). The record reveals that Detective

Pieszchalski testified about his training in extracting video surveillance footage

and collecting multimedia evidence. When asked about Exhibit 89, he

indicated that it was the video footage he “collected originally on scene.”

Transcript Volume II at 102. He testified that he first viewed the footage on the

machine inside the Carousel manager’s back office, and in response to being

asked about the discs in Exhibit 89 and whether he transferred the media from a

thumb drive to a computer, he testified about retrieving the video footage,

exporting it on his thumb drive from the source, and returning and

downloading it at the office to use programs such as Quickhash to provide a

digital “fingerprint” which allows its use across many different programs. Id. at

103-104. He testified that he compared the thumb drive or flash drive hash

values to what was burned on the discs and indicated that they were the same

video. In response to preliminary questions posed by Thomas’s counsel prior to

the admission of Exhibit 89, Detective Pieszchalski indicated that the final

product originally was captured from the Carousel’s recording on a thumb

drive, that he did not experience “any flaws or errors or problems . . . with the

Carousel recording system,” that there was an accurate extraction to the thumb

drive and that the thumb drive accurately recorded the Carousel video portions

that he extracted, and that he personally “transferred the thumb drive to this

permanent disc” for security purposes. Id. at 104-105. Based upon the record,



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 17 of 22
       we cannot say that the trial court abused its discretion in admitting the

       recordings.


                                                        III.


[23]   The next issue is whether the trial court committed fundamental error in

       instructing the jury. Thomas argues the State’s “scattershot” presentation to the

       jury and the court’s final jury instructions created a significant possibility that

       the jury failed to reach a unanimous determination on the essential elements of

       felony murder. Appellant’s Brief at 28. He contends the State’s facts and

       arguments at trial allowed for a variety of different crimes to have occurred of

       which the jury could have selected any combination and produced a conviction.

       Specifically, he asserts that, except for Pardee as the decedent, every essential

       element of the State’s felony murder charge had an alternative claim, that the

       jury was left to contend with the factors of whether “Pardee was shot by

       Thomas or Lewis, whether the underlying felony was robbery or attempted

       robbery, whether that felony was perpetrated by Thomas or Summers, and

       whether that felony was perpetrated upon Pardee or Lewis”; and that “such

       considerations are not merely alternate theories, but different and significant

       criminal charges that the State failed to narrow.” Id. at 33-34. The State

       maintains Thomas cannot prove fundamental error because the only issue was

       the credibility of witnesses and the case amounted to whether the jury believed

       Summers and Lewis or whether they believed Thomas.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 18 of 22
[24]   As he admits in his brief and as the record reveals, Thomas’s counsel did not

       object to the final jury instructions at trial. Because Thomas did not object to

       Instruction No. 1 or offer an alternative instruction, he has waived his challenge

       to the instruction. See Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011)

       (holding that the defendant had not objected to the trial court’s instruction or

       offered an instruction of his own and accordingly had waived the issue) (citing

       Mitchell v. State, 726 N.E.2d 1228, 1241 (Ind. 2000) (noting “a defendant who

       fails to object to an instruction at trial waives any challenge to that instruction

       on appeal”) (citing Trial Rule 51(C)), reh’g denied, abrogated on other grounds by

       Beattie v. State, 924 N.E.2d 643 (Ind. 2010); Ortiz v. State, 766 N.E.2d 370, 375

       (Ind. 2002) (“Failure to tender an instruction results in waiver of the issue for

       review.”)). We will review an issue that was waived at trial if we find

       fundamental error occurred. Id. (citing Bruno v. State, 774 N.E.2d 880, 883

       (Ind. 2002), reh’g denied). In order to be fundamental, the error must represent a

       blatant violation of basic principles rendering the trial unfair to the defendant

       and thereby depriving the defendant of fundamental due process. Id. The error

       must be so prejudicial to the defendant’s rights as to make a fair trial

       impossible. Id. In considering whether a claimed error denied the defendant a

       fair trial, we determine whether the resulting harm or potential for harm is

       substantial. Id. at 1178-1179. Harm is not shown by the fact that the defendant

       was ultimately convicted. Id. at 1179. Rather, harm is determined by whether

       the defendant’s right to a fair trial was detrimentally affected by the denial of

       procedural opportunities for the ascertainment of truth to which he would have

       been entitled. Id.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 19 of 22
[25]   Thomas has not demonstrated that fundamental error occurred. A jury must

       unanimously agree regarding which crime a defendant committed, and each

       count of an information may include only a single offense. State v. Sturman, 56

       N.E.3d 1187, 1203 (Ind. Ct. App. 2016) (citations omitted). Thus, an

       instruction which allows the jury to find a defendant guilty if he commits either

       of two or more underlying acts, either of which is in itself a separate offense, is

       ambiguous because it is impossible to determine whether the jury unanimously

       found that the defendant committed one particular offense. Id. Nevertheless,

       the State is permitted to “allege alternative means or ‘theories of culpability’

       when prosecuting the defendant for a single offense.” Id. (citing Baker, 948

       N.E.2d at 1175 (citation omitted)). In other words, the State is permitted to

       “present the jury with alternative ways to find the defendant guilty as to one

       element.” Id. (brackets omitted) (citing Baker, 948 N.E.2d at 1175 (quoting

       Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996) (“In criminal cases, as in all

       litigation, different jurors may be persuaded by different pieces of evidence,

       even when they agree upon the bottom line.”) (citation and internal quotation

       marks omitted), reh’g denied)). “[W]hile jury unanimity is required as to the

       defendant’s guilt, it is not required as to the theory of the defendant’s

       culpability.” Taylor v. State, 840 N.E.2d 324, 333 (Ind. 2006).


[26]   In Taylor, the State pursued two theories on how the defendant could be guilty

       of murder, either by killing the victim or by aiding and abetting another person

       to kill the victim. Id. at 331. The defendant argued on appeal that the jury

       should have been instructed that, in order to convict him of murder, the verdict

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 20 of 22
       had to be unanimous on one of the two prosecution theories. Id. at 332. The

       Court observed that the jury had to determine only whether the defendant

       committed one act of murder, stated that there were two different theories upon

       which the jury could have found that the defendant committed this one act,

       either as the principal or an accomplice, and noted that the defendant would

       have been equally guilty of murder whether he acted as the principal shooter or

       merely an accomplice. Id. at 333. In Sturman, the State charged the defendant

       with multiple counts of reckless homicide and issuing an invalid prescription,

       and the defendant argued that the method of charging him allowed for non-

       unanimous jury verdicts. 56 N.E.3d at 1202-1203. We observed that, within

       each charge for reckless homicide, the State alleged “alternative means” by

       which the reckless homicide was committed, namely, by issuing prescriptions

       “for Methadone, Dilaudid, and/or Valium without medical legitimate purpose

       and outside the usual course of practice.” Id. at 1204. We held in part that, so

       long as each juror was convinced beyond a reasonable doubt that the defendant

       was guilty of reckless homicide, the jury need not have decided unanimously by

       which theory he was guilty. Id. (citing Taylor, 840 N.E.2d at 333-334).


[27]   With regard to Count I, Instruction No. 2 stated that, before the jury could

       convict Thomas, the State must have proved each of the four elements beyond a

       reasonable doubt. Instruction No. 5 provided that a person may be convicted of

       aiding, inducing, or causing an offense even if the other person has not been

       prosecuted for the offense, has not been convicted of the offense, or has been

       acquitted of the offense. In Instructions A and E, the court instructed the jury


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 21 of 22
       that the “verdict must be unanimous” and that to “[t]o return a verdict, all of

       you must agree to it” or “[i]n other words, it must be unanimous.” Appellant’s

       Appendix Volume II at 127, 130. The jury could find Thomas committed the

       murder as a principal or accomplice. The jury found he committed an

       attempted armed robbery, and it need not have decided unanimously by which

       theory or alternative means he was guilty. In light of the final instructions, we

       conclude that the trial court did not commit fundamental error in instructing

       the jury.


[28]   For the foregoing reasons, we affirm Thomas’s convictions.


[29]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2979 | August 15, 2019   Page 22 of 22
