                                                                          FILED
                                                                     Apr 14 2020, 8:43 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John Kindley                                               Curtis T. Hill, Jr.
South Bend, Indiana                                        Attorney General of Indiana
                                                           Myriam Serrano
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Presley Jermaine Brown,                                    April 14, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-2125
        v.                                                 Appeal from the St. Joseph
                                                           Superior Court
State of Indiana,                                          The Honorable Jane Woodward
Appellee-Plaintiff                                         Miller, Judge
                                                           Trial Court Cause No.
                                                           71D01-1712-MR-15



Crone, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020                             Page 1 of 14
                                               Case Summary
[1]   Presley Jermaine Brown appeals his convictions for murder, a felony, and level

      3 felony attempted armed robbery. He contends that the trial court erred by

      admitting documents purportedly handwritten by Brown without

      authenticating the handwriting as Brown’s. Finding no error in the admission

      of the documents, we affirm.


                                  Facts and Procedural History
[2]   On October 5, 2016, Brown asked Caleb Smith to set up a robbery to obtain

      drugs or money. Tr. Vol. 2 at 75. Smith’s girlfriend Miranda Gayheart

      identified Miguel Dominguez-Campos as a potential individual to rob, and she

      contacted Dominguez via Facebook messenger to purchase marijuana. Id. at

      57, 81; Tr. Vol. 1 at 215. In the early morning hours of October 6, 2016, Smith

      drove Brown and Brown’s friend Sir Lloyd to Dominguez’ house on Meadow

      Lane. Tr. Vol. 2 at 95. Smith parked across the street from the house, and

      Brown and Lloyd got out of the vehicle. About the same time, Smith saw a car

      pull into the house’s driveway. Id. at 96. Tyler Hurtle, who lived with

      Dominguez, was driving that car, and Hurtle’s girlfriend Shaelynn Martin was

      a passenger. Tr. Vol. 1 at 193, 194-95. After Hurtle parked the car, he and

      Martin walked to the front door. As Hurtle was unlocking the door, two armed

      African-American men appeared and hit Hurtle on the head. Id. at 198. Hurtle

      fell into the bushes. Martin heard gunshots and ran back toward the driveway.

      Id.



      Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020         Page 2 of 14
[3]   Smith, who was still in the car, heard gunshots and got out of the car. He saw

      Brown running through the yard to the car. Tr. Vol. 2 at 97. Brown had a

      mask on and was carrying a gun, and he told Smith that his gun had jammed.

      Id. at 98. Smith also saw Lloyd running around the side of the house and

      shooting at Martin. Id. at 97. Lloyd, Brown, and Smith got into the car, and

      Smith drove them away.


[4]   Dominguez heard gunshots and came out of the house. Tr. Vol. 1 at 218.

      Dominguez saw Smith, whom he knew, standing by the car across the street

      and two men running toward it. All three men got in the car, and the car sped

      away. Martin told Dominquez-Campos that Hurtle had been shot. They

      pulled Hurtle, who was unresponsive and had a small amount of blood on his

      head, out of the bushes and called the police. Id. at 222.


[5]   Police and medics arrived at the crime scene. Hurtle was taken by ambulance

      to the hospital and died of multiple gunshot wounds. An autopsy revealed that

      a bullet had entered Hurtle’s left forehead and exited next to his right eye.

      Another bullet had entered the left side of Hurtle’s chest wall, traveled through

      his lung, diaphragm, and intestines, and remained lodged in the soft tissue of

      Hurtle’s hip. The bullet was recovered and came from a 9-millimeter handgun.

      Tr. Vol. 2 at 160; State’s Ex. 253.


[6]   From the crime scene, police recovered four shell casings from a 9-millimeter

      handgun and seven shell casings from a .45 caliber gun. Tr. Vol. 2 at 52. A

      firearm expert determined that the .45 caliber shell casings had been fired from


      Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020         Page 3 of 14
      a .45 caliber gun that Lloyd had dropped when police were pursuing him for an

      unrelated crime. Id. at 209-10, 250. The shell casings that came from a 9-

      millimeter handgun and the bullet recovered from Hurtle’s body were

      determined to have been shot from a gun that had been in Brown’s possession.

      The police also obtained Brown’s cellular phone record, which showed that he

      was in the vicinity of Meadow Lane at the time of the shooting. Id. at 232.


[7]   In December 2017, the State charged Brown with Count 1, murder, a felony;

      Count 2, murder while committing or attempting to commit armed robbery, a

      felony; and Count 3, level 3 felony attempted armed robbery. The State also

      filed a firearm sentencing enhancement.


[8]   While Brown was incarcerated in the St. Joseph County Jail, he relayed details

      of his crime to several fellow inmates. Brown told Byron Murray that he and

      Lloyd shot someone and that Brown was worried that Smith was going to tell

      the police because Smith had stayed in the car. Id. at 171-73. Brown also told

      Murray that he gave the gun that he used to shoot the victim to an individual

      called “BK.” Id. at 173. Brown told Javon Crockett-Berry that he went to a

      house on Meadow Lane to rob someone of marijuana, and while at the house,

      a white man walked up and both Brown and Lloyd shot the man. Id. at 185.

      Brown also told Crockett-Berry that he was going to give Lloyd or Lloyd’s

      attorney a statement that he wrote blaming Smith for the murder. Id. at 188.

      Brown told Cedric Washington, Andre Pittman, Denzel Bridges, and

      Demetrius Thomas that he went to a house on Meadow Lane to rob someone

      of marijuana and ended up shooting a white man. Tr. Vol. 3 at 16, 29, 47, 58-

      Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020      Page 4 of 14
       59. Brown also told Thomas that he wrote a letter to Lloyd’s attorney blaming

       Smith for the murder. Id. at 60.


[9]    A jury trial was held. During the State’s case in chief, the prosecutor offered as

       State’s Exhibit 401 a copy of a letter purportedly handwritten by Brown and

       sent by him to Lloyd’s attorney Jeffrey Kimmel. Id. at 37; Ex. Vol. 2 at 92-95.

       To provide a foundation for the letter’s admission, Kimmel testified that shortly

       before Lloyd’s case went to trial, Kimmel received a handwritten letter that

       purported to be from Brown in an envelope mailed from the St. Joseph County

       Jail. 1 Tr. Vol. 3 at 35-36, 39. Kimmel stated that he made a photocopy of the

       letter and turned it over to the prosecutor’s office. Id. at 36. Kimmel testified

       that Exhibit 401 looked like a photocopy of the letter that he received. Id. at 37.


[10]   Brown’s attorney objected to the admission of Exhibit 401 on the basis that

       Kimmel had never seen Brown’s handwriting and could not authenticate the

       letter. Id. at 39. The prosecutor then asked the trial court to take judicial notice

       of State’s Exhibits 402 and 403 to provide the jury with a sample of Brown’s

       writing, so that the jury could determine whether Exhibit 401 had been written

       by Brown. Id. at 39. Exhibit 402 was a letter written by Brown to the St.

       Joseph County clerk of the court and the envelope in which it arrived. Ex. Vol.

       2 at 97-98. In the letter, Brown asked the clerk to send Brown a certified

       chronological case summary (“CCS”) of this cause. Id. at 98. The envelope




       1
           Exhibit 401 did not include the envelope that the letter was sent in.


       Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020           Page 5 of 14
       contained Brown’s return address, and it was stamped with “Mailed From St.

       Joseph County Jail[.]” Id. at 97. The letter and envelope were both file-

       stamped by the St. Joseph County clerk on March 19, 2019, and the filing of the

       correspondence was recorded in the CCS. Appellant’s App. Vol. 2 at 10.


[11]   Exhibit 403 was a letter written by Brown to the trial court and the envelope in

       which it arrived. Ex. Vol. 2 at 99-101. In this letter, Brown stated that his

       court-appointed attorney Sean Hilgendorf had failed to respond to repeated

       requests for communication, and Brown did not want Hilgendorf to represent

       him any longer. Id. at 100-01. The envelope contained Brown’s return address,

       and it was stamped with “Mailed From St. Joseph County Jail[.]” Id. at 99.

       The letter and envelope were both file-stamped by the St. Joseph County Clerk

       on February 13, 2018, and the filing of the correspondence was recorded in the

       CCS. Appellant’s App. Vol. 2 at 5.


[12]   Brown’s attorney objected to Exhibits 402 and 403 on grounds that there was

       no proof that Brown wrote the letters. Tr. Vol. 3 at 39, 41. The prosecutor

       stated that a hearing had been held before trial to address the contents of

       Exhibit 403. Id. at 39. After reviewing the case file, the trial court told the

       parties that the CCS showed that Exhibit 403 was filed on February 13, 2018,

       and contained an entry reflecting that on February 20, the court had issued an

       order setting a hearing on Brown’s “letter of complaint regarding attorney” for

       February 27. Id. at 69. The court stated that a hearing was held on that date

       and the issue was resolved, that Brown appeared at the hearing, and that there

       was nothing in the entry of February 27 to suggest that Brown “came in and

       Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020          Page 6 of 14
       declared that he had not written that document[.]” Id. at 69, 70. The court

       concluded that it had “acted upon [the letter] with [Brown] present. So, it

       seem[ed] unlikely that someone other than [Brown] wrote it.” Id. at 72. The

       court explained that the jury could do a handwriting comparison and that the

       court was “confident under these circumstances that there is sufficient

       foundation when [the court] take[s] judicial notice of the record in this case to

       warrant [it] permitting the introduction of [Exhibit] 403 as what is in essence an

       exemplar and that sufficient foundation was raised to admit [Exhibit] 401[.]”

       Id. at 74.


[13]   Prior to the admission of these exhibits, the State also introduced the testimony

       of Crockett-Berry and Thomas, who stated that Brown had told them that he

       had written a letter to Lloyd’s attorney blaming Smith for the murder. Tr. Vol.

       2 at 188; Tr. Vol. 3 at 60.


[14]   In response to Exhibit 401, Brown’s attorney moved to admit Defense’s Exhibit

       B, Brown’s affidavit to deny allegation, as a handwriting sample for the jury to

       use as a comparator. Id. at 76-77; Ex. Vol. 2 at 92-96. The Court took judicial

       notice of Exhibits 402 and 403 and admitted Exhibit 401 and Defense’s Exhibit

       B. Tr. Vol. 3 at 118, 120. All the exhibits were published.


[15]   The jury found Brown guilty as charged. The trial court entered judgment of

       conviction for Counts 1 and 3 and sentenced Brown to an executed term of

       sixty years for Count 1, enhanced by twenty years for the firearm enhancement,




       Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020         Page 7 of 14
       and a consecutive executed term of twelve years for Count 3, for an aggregate

       term of ninety-two years. This appeal ensued.


                                       Discussion and Decision
[16]   Brown challenges the admission of Exhibits 401, 402, and 403, arguing that

       there was insufficient evidence of authentication. Our standard of review for

       the admissibility of evidence is well established:


               The admission or exclusion of evidence lies within the sound
               discretion of the trial court and is afforded great deference on
               appeal. We will reverse the trial court’s ruling on the
               admissibility of evidence only for an abuse of discretion. An
               abuse of discretion occurs where the trial court’s decision is
               clearly against the logic and effect of the facts and circumstances
               before it. In reviewing the admissibility of evidence, we consider
               only the evidence in favor of the trial court’s ruling and any
               unrefuted evidence in the defendant’s favor. Errors in the
               admission or exclusion of evidence are considered harmless
               unless they affect the substantial rights of a party. To determine
               whether an error in the admission of evidence affected a party’s
               substantial rights, we assess the probable impact of the evidence
               on the jury.


       Whiteside v. State, 853 N.E.2d 1021, 1025 (Ind. Ct. App. 2006) (citations

       omitted); see also Thomas v. State, 734 N.E.2d 572, 573 (Ind. 2000) (stating that

       trial court’s ruling on sufficiency of foundation laid for admission of evidence is

       reviewed for abuse of discretion).


[17]   Evidence Rule 901(a) provides, “The requirement of authentication or

       identification as a condition precedent to admissibility is satisfied by evidence


       Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020         Page 8 of 14
       sufficient to support a finding that the matter in question is what its proponent

       claims.” Evidence Rule 901(b) includes a nonexhaustive list of examples of

       satisfactory evidence of authentication, including the following: “[a]

       comparison with an authenticated specimen by an expert witness or the trier of

       fact” and “[t]he appearance, contents, substance, internal patterns, or other

       distinctive characteristics of the item, taken together with all the

       circumstances.” Ind. Evid. Rule 901(b)(-3), (-4). “Absolute proof of

       authenticity is not required.” Wilson v. State, 30 N.E.3d 1264, 1268 (Ind. Ct.

       App. 2015) (quoting Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008),

       trans. denied), trans. denied. “Rather, the proponent of the evidence must

       establish only a reasonable probability that the evidence is what it is claimed to

       be, and may use direct or circumstantial evidence to do so.” Richardson v. State,

       79 N.E.3d 958, 962 (Ind. Ct. App. 2017), trans. denied. “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.”

       Harrison v. State, 32 N.E.3d 240, 255 (Ind. Ct. App. 2015), trans. denied.


[18]   Here, Brown objected to the admissibility of Exhibit 401 because there was

       insufficient evidence that he had written the letter. The trial court took judicial

       notice that Exhibits 402 and 403 had been written by Brown and admitted them

       as examples for the jury to determine whether Exhibit 401 had been written by




       Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020            Page 9 of 14
       Brown. 2 Brown contends that the trial court erred in allowing the jury to

       determine whether he wrote Exhibit 401 by comparing the handwriting in

       Exhibit 401 with that in Exhibits 402 and 403 because they had not been

       properly authenticated.


[19]   In support of his position, Brown relies on Payne v. State, 96 N.E.3d 606 (Ind.

       Ct. App. 2018), trans. denied. In that case, Payne was convicted of level 4 felony

       unlawful possession of a firearm by a serious violent felon, and on appeal he

       argued that there was insufficient evidence that he had been previously

       convicted of a qualifying felony, specifically robbery. To prove that Payne had

       been previously convicted of robbery,


                  the State offered certified records from a 2010 robbery conviction
                  and claimed that the records proved that Payne was the
                  defendant in that cause who had previously been convicted of
                  robbery. The records included the charging information, probable
                  cause affidavit, supplemental probable cause affidavit, plea
                  agreement, the trial court’s order on plea hearing, and the trial
                  court’s sentencing order, which were all labeled with the same



       2
           Indiana Evidence Rule 201 authorizes a court to take judicial notice of

                (1) a fact that:
                    (A) is not subject to reasonable dispute because it is generally known within the trial court's
                    territorial jurisdiction, or
                    (B) can be accurately and readily determined from sources whose accuracy cannot
                    reasonably be questioned.
                (2) the existence of:
                    (A) published regulations of governmental agencies;
                    (B) ordinances of municipalities; or
                    (C) records of a court of this state.



       Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020                                    Page 10 of 14
               cause number. The charging information included the robbery
               defendant’s name and birth date, which matched Payne’s name
               and birth date as listed in the instant cause, as well as the robbery
               defendant’s driver’s license number, which did not match the
               information in the instant cause. The plea agreement included the
               robbery defendant’s name, birth date, and signature. The trial court’s
               order on plea agreement and sentencing order contained only the
               robbery defendant’s name. The State rested its case without
               further testimony.


       Id. at 609 (emphasis added).


[20]   Payne argued that this certified record was insufficient to prove that he was the

       same person who had committed the robbery because the matching name and

       birth date were not sufficient to prove his identity. The majority of the Payne

       court agreed that “a matching name and birth date, absent other identifying

       evidence, are not sufficient to prove identity.” Id. at 612 (citing Livingston v.

       State, 537 N.E.2d 75, 78 (Ind. Ct. App. 1989)). The State contended that it

       produced additional evidence of Payne’s identity because the plea agreement in

       the robbery cause and the signed advisement of rights form in the unlawful

       firearm possession case both contained Payne’s signature. The majority rejected

       this argument because “the signature within the plea agreement had not been

       authenticated as belonging to Payne.” Id. The majority reasoned,


               [T]he State did not introduce expert or non-expert testimony to
               authenticate the signature [in the plea agreement]; nor did Payne
               admit that the signature was his. Accordingly, the signature was
               never authenticated, and the only evidence the State introduced
               to prove Payne’s identity as the defendant in the robbery cause
               was the evidence of the robbery defendant’s name and birth date.

       Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020           Page 11 of 14
       Id. at 613.


[21]   Brown focuses on the fact that the Payne court did not rely on the signed

       advisement of rights in that cause as a means to authenticate the signature on

       the plea agreement in the robbery cause. However, the Payne court did not

       address whether the signature on the advisement of rights in that cause could

       have been used by the trier of fact to authenticate the signature on the plea

       agreement in the robbery cause because the prosecutor had not raised that

       possibility to the trial court or asked the trial court to take judicial notice that

       the signature on the advisement of rights was Payne’s. Therefore, Payne is

       inapposite to the question presented here.


[22]   Instead, we find Owen v. State, 272 Ind. 122, 396 N.E.2d 376 (1979), more

       helpful. There, Owen was charged with robbery and represented himself pro se.

       The prosecutor asked the trial court to take judicial notice of Owen’s pleadings

       and filings in the cause and allow the jury to compare them to a handwritten

       note left by the robber at the scene of the robbery. Our supreme court

       concluded that it was reasonable “under the circumstances of this case, for the

       court to take judicial notice of the fact that the defendant is the one who did, in

       fact, sign these pleadings.” Id. at 129, 396 N.E.2d at 381. The Owen court

       reasoned that it was reasonable based on the following circumstances:


               [Owen] acted as his own attorney in this cause throughout the
               pleading stage, tried the case before the jury, argued these matters
               and spoke of them before the jury during the trial and in final
               argument. He testified as a witness in his own behalf and never


       Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020           Page 12 of 14
               denied that he was the one who actually wrote all of the
               pleadings and signed his name thereto.


       Id., 396 N.E.2d at 381. The Owen court continued, “The trial judge may take

       judicial notice [that the defendant signed the pleadings], and a rebuttable

       presumption arises which requires the defendant to come forward with any

       evidence to dispute the presumption.” Id., 396 N.E.2d at 381 The court noted

       that Owen did not attempt to demonstrate that the documents judicially noticed

       were not written by him, but only objected to notice being taken of them

       because the trial judge did not personally see him sign them. Id., 396 N.E.2d at

       382. Accordingly, the Owen court concluded that the “trial court could have

       taken judicial notice that the documents were in the record filed on behalf of the

       defendant and have permitted the jury to infer that they were, in fact, signed by

       the defendant.” Id. at 130, 396 N.E.2d at 382.


[23]   Although Brown did not proceed pro se as Owen did, we have no difficulty

       concluding that under the circumstances it was reasonable for the trial court to

       take judicial notice that the handwriting and signatures in Exhibits 402 and 403

       were Brown’s. We first examine Exhibit 403, the 2018 letter to the trial court

       complaining about the lack of communication from Brown’s court-appointed

       attorney. The contents of the letter, that it was mailed from the jail where

       Brown was incarcerated, that a hearing was held to address the letter’s

       concerns, that Brown appeared at the hearing, and that the concerns expressed

       in the letter were resolved and a pretrial hearing was set all support the trial

       court’s decision to take judicial notice that the handwriting and signature in

       Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020         Page 13 of 14
       Exhibit 403 were Brown’s. Exhibit 402, the 2019 letter from Brown, was

       mailed from the jail where Brown was incarcerated and asked the clerk to send

       Brown the CCS, and the handwriting looks like the handwriting in the 2018

       letter. Under the circumstances, it was reasonable for the trial court to take

       judicial notice that the documents filed with the court had been written by

       Brown. 3 Therefore, the trial court did not abuse its discretion in admitting the

       State’s exhibits, and we affirm Brown’s convictions.


[24]   Affirmed.


       Bailey, J., and Altice, J., concur.




       3
         A rebuttable presumption then arose that the documents had been written by Brown requiring Brown to
       come forward with evidence to dispute the presumption. Brown moved to admit Defendant’s Exhibit B, a
       separate writing sample of Brown’s, which the trial court granted. Thus, the jury was able to compare the
       handwriting in the court-filed documents and the writing sample that Brown provided to the letter Kimmel
       received to determine whether Brown wrote it.

       Court of Appeals of Indiana | Opinion 19A-CR-2125| April 14, 2020                             Page 14 of 14
