                                                                     FILED
                                                                 Jul 06 2017, 8:03 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Valerie K. Boots                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                       Attorney General of Indiana
                                                            Caryn N. Szyper
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Terrance L. Richardson,                                     July 6, 2017
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            49A02-1701-CR-17
        v.                                                  Appeal from the Marion Superior
                                                            Court
State of Indiana,                                           The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            49G06-1510-MR-35635



Riley, Judge.




Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017                     Page 1 of 14
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Terrance L. Richardson (Richardson), appeals his

      conviction for murder, a felony, Ind. Code § 35-42-1-1.


[2]   We affirm.


                                                      ISSUES
[3]   Richardson raises two issues for our review, which we restate as:


      (1) Whether the trial court abused its discretion when it excluded a Facebook

      message from the evidence presented at trial; and


      (2) Whether the State presented sufficient evidence beyond a reasonable doubt

      to rebut Richardson’s claim of self-defense.


                       FACTS 1 AND PROCEDURAL HISTORY
[4]   On the afternoon of October 4, 2015, Richardson, and his three friends, Jalen

      Heffner (Heffner), Kaylend Gilbert (Gilbert), and Steven Kendall (Kendall)—all

      approximately seventeen years old—walked together to the New York Express

      convenience store, located at 2801 East New York Street—on the corner of

      Rural Street and New York Street—in Indianapolis, Indiana. Richardson and

      Gilbert entered the store, while Heffner and Kendall waited outside. After a




      1
       The facts are partially derived from the various security cameras outside and inside the convenience store,
      as well as from a remodeling business one door south of the store. These security cameras captured images
      only and did not register sound.

      Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017                             Page 2 of 14
      short while, Kendall walked around the corner of the store, while Heffner sat on

      the curb in front of the store’s entrance. A couple of seconds after Kendall

      walked around the corner, Richardson exited the store and joined Heffner on

      the curb; Gilbert remained inside, waiting in line at the cash register. When his

      purchase was complete, Gilbert joined Richardson and Heffner at the curb, just

      as Kendall turned the corner and walked towards them.


[5]   About a minute later, the group turned their attention to Rural Street as a black

      car pulled up. Richardson, Heffner, and Gilbert moved toward the vehicle and

      leaned into the passenger side window to start conversing with the occupant.

      Kendall hung back, remaining on the curb. Eventually, Kendall walked

      towards the vehicle and appeared to speak with the occupant. Then,

      Richardson, Gilbert, and Kendall moved away and began talking amongst

      themselves on the curb; Heffner remained at the vehicle. During the

      conversation, Kendall lifted his shirt with both hands and showed the other two

      a black item—appearing to be a gun—in the waistband of his pants. A couple

      of seconds later, Heffner shook hands with the occupant of the vehicle, which

      then drove away. All four talked briefly in front of the store, before walking

      away. Approximately thirty seconds later, Heffner and Richardson returned to

      the store. Upon entering, they immediately walked toward the back where

      Heffner reached in his right-hand pocket and handed Richardson a black object,

      which Richardson quickly pocketed in his jacket. The two then exited the store

      without making a purchase.




      Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017    Page 3 of 14
[6]   The four boys walked together to the parking lot behind the convenience store.

      Behind the store, Kendall stopped first. Richardson turned and walked back to

      Kendall, leaning down briefly with his hands on his knees. Richardson then

      faced Kendall and put his hand in his jacket. Heffner faced Kendall at the

      opposite side of Richardson. Richardson pulled out a gun and abruptly lunged

      at Kendall. Kendall put his left hand out to ward off the attack, and

      Richardson fired a single shot into Kendall’s chest.


[7]   Heffner immediately sprinted back to the front parking lot of the New York

      Express. Richardson and Gilbert ran into each other as they fled towards Rural

      Street, causing Gilbert to drop his cellphone. Richardson, Gilbert, and Heffner

      met up after crossing the street and started walking as if nothing had happened.

      Although shot, Kendall managed to run in the opposite direction. As he ran,

      he dropped his gun. Seconds after he picked up the gun, he collapsed on the

      sidewalk and died.


[8]   When law enforcement arrived, they discovered Kendall face-first on the

      concrete, showing no signs of life. They recovered a handgun a few feet from

      Kendall’s body. The handgun was fully loaded but did not have a bullet in the

      chamber. Forensic testing of the firearm revealed that it was not the weapon

      that had fired the fatal shot. A cellphone was recovered from Kendall’s body.

      Another cellphone, later determined to belong to Gilbert, was found in the

      parking lot where Richardson and Gilbert had bumped into each other as they

      fled. Police officers obtained the surveillance footage from the New York



      Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017   Page 4 of 14
       Express and from the remodeling business, which allowed the officers to

       quickly identify the individuals involved.


[9]    On October 5, 2015, the State filed an Information charging Richardson with

       murder, a felony. On November 14 through 16, 2016, the trial court conducted

       a joint bench trial for Richardson, Heffner, and Gilbert. 2 At the close of the

       evidence, the trial court found Richardson guilty as charged, but found Gilbert

       and Heffner not guilty. On December 1, 2016, the trial court sentenced

       Richardson to fifty-five years executed in the Indiana Department of

       Correction.


[10]   Richardson now appeals. Additional facts will be provided if necessary.


                                DISCUSSION AND DECISION
                                             I. Admission of Evidence


[11]   Richardson contends that the trial court abused its discretion when it excluded

       a Facebook message between Kendall and a third party from the evidence

       admitted at trial. The trial court has inherent discretionary power over the

       admission of evidence, and its decisions are reviewed only for an abuse of that

       discretion. Bowman v. State, 73 N.E.3d 731, 734 (Ind. Ct. App. 2017), trans.

       denied. Accordingly, we will reverse the trial court’s decision only when it is




       2
        All three defendants were charged with murder, but only Richardson was found guilty. The trial court did
       not find sufficient evidence to prove beyond a reasonable doubt that Heffner and Gilbert were knowing
       accomplices in Kendall’s murder.

       Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017                         Page 5 of 14
       clearly against the facts and circumstances before the court. Id. Even if the trial

       court abused its discretion in admitting evidence, the judgment will be

       undisturbed if the decision to admit evidence is harmless error. Id. “Harmless

       error occurs ‘when the conviction is supported by such substantial independent

       evidence of guilt as to satisfy the reviewing court that there is no substantial

       likelihood that the questioned evidence contributed to the conviction.’” Id.

       (quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)).


[12]   During his case-in-chief, Kendall called Detective Grant Melton of the

       Indianapolis Metropolitan Police Department (Detective Melton). Detective

       Melton testified about his examination of the password-protected cellphone that

       had been recovered from Kendall’s body. During his examination, Detective

       Melton retrieved a Facebook profile under the name “Bandman Trapp.”

       (Transcript Vol. III, p. 63). Through Facebook’s Messenger application,

       Detective Melton discovered a conversation between Bandman Trapp and

       another account with the name “Little L Mike Brookside” from a couple days

       prior to the shooting. (Tr. Vol. III, p. 64). Richardson moved to admit the

       message and the State objected on grounds of improper foundation, relevance,

       and hearsay.


[13]   After the trial court expressed concerns about the evidentiary foundation of the

       message, Richardson questioned Detective Melton about the author of the

       message and the recovery of the data during follow-up questioning. Upon

       being interrogated by the State, Detective Melton noted that the Facebook

       account could not only be accessed through the cellphone that was recovered at

       Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017      Page 6 of 14
       the scene, but could also be accessed through any computer or any other

       telephone. “Other than [] having seen Bandman Trapp on that message,”

       Detective Melton had “no idea who made that statement or who composed that

       message.” (Tr. Vol. III, p. 72). He clarified that he did not know who

       composed the message because anyone could sign into that account on a

       computer and compose the message which “would then sync to that phone if

       it’s signed into the account.” (Tr. Vol. III, p. 72). After the trial court denied

       the admission of the message based on foundation grounds, Richardson made

       an offer to prove. In his offer to prove, Richardson indicated that the exhibit

       would show that on October 1, 2015, Kendall, under his Facebook account of

       Bandman Trapp, messaged Little L Mike Brookside, “Nah I’m boutta finesse

       hoodie for this strap but I need you[,]” which Richardson represented to mean,

       “I’m about to rob somebody for a black gun.” (Tr. Vol. III, pp. 83, 84).


[14]   “To lay a foundation for the admission of evidence, the proponent of the

       evidence must show that it has been authenticated.” Hape v. State, 903 N.E.2d

       977, 989 (Ind. Ct. App. 2009), trans. denied. Indiana Rule of Evidence 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.” 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, and may use

       direct or circumstantial evidence to do so. Pavlovich v. State, 6 N.E.3d 969, 976


       Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017      Page 7 of 14
       (Ind. Ct. App. 2014), trans. denied. Once this reasonable probability is shown,

       any inconclusiveness of the evidence’s connection with the events at issue goes

       to evidential weight, not admissibility. Fry v. State, 885 N.E.2d 742, 748 (Ind.

       Ct. App. 2008), trans. denied.


[15]   “Letters and words set down by electronic recording and other forms of data

       compilation are included within Rule 901(a).” Wilson v. State. 30 N.E.3d 1264,

       1268 (Ind. Ct. App. 2015), trans. denied. Moreover, Evidence Rule 901(b)

       provides a non-exhaustive list of evidence that satisfies the authentication

       requirement. One example is where there is evidence describing a process or

       system and showing that it produces an accurate result. Evid. R. 901(b)(9).

       Another example, provided in Evidence Rule 901(b)(4), is where, taken

       together with all the circumstances, the evidence has distinctive characteristics

       in appearance, contents, or substance. Federal Rule of Evidence 901(b)(4) uses

       language identical to that of Indiana Rule of Evidence 901(b)(4). “We have

       previously acknowledged that federal courts have recognized Federal Rule of

       Evidence 901(B)(4) as one of the most frequently used means to authenticate

       electronic data, including text messages and emails.” Wilson, 30 N.E.3d at

       1268.


[16]   In Wilson, we addressed whether messages sent through a Twitter social media

       account were properly authenticated as having been authored by the defendant.

       Id. at 1268. During trial, a witness testified that she often communicated with

       Wilson on Twitter and had general knowledge of the account by its

       “@Nell_FearNoMan” header. Id. at 1268-69. The contents of the account

       Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017    Page 8 of 14
       included pictures depicting Wilson holding guns that matched the description of

       those used in the crime. Id. at 1269. Moreover, there was testimony that

       Wilson was affiliated with two gangs, and the @Nell_FearNoMan Twitter

       account frequently used terms referring to those gangs, showing that the author

       of the messages was affiliated with them. Id. We concluded that “taken

       together, the witness testimony identifying the Twitter account as belonging to

       Wilson and the content posted on the account, including pictures and gang

       references, are more than sufficient to authenticate the Twitter posts as being

       authored by Wilson.” Id.


[17]   In M.T.V., M.T.V. admitted, in an interview with law enforcement officers, to

       having had Facebook conversations with B.E., in which B.E. threatened to

       shoot up the school on April 20, 2018. M.T.V., 66 N.E.3d at 963-64. The

       Facebook records introduced at the hearing contained the content M.T.V.

       admitted to. Id. at 964. Furthermore, in addition to having distinctive

       characteristics in content, the Facebook records were also supported by an

       affidavit from Facebook’s authorized records custodian, which specified, inter

       alia, that the records were made and kept by Facebook’s automated systems and

       were made at or near the time the Facebook user transmitted the information.

       Id. At the hearing, law enforcement testified that the procedure used to obtain

       the Facebook records was an ordinary procedure, previously used for criminal

       investigations involving Facebook. Id. Concluding that, collectively, the State

       had established the requisite reasonable probability that the Facebook records

       corresponded to M.T.V.’s and B.E.’s accounts and that M.T.V. and B.E.

       Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017     Page 9 of 14
       authored the conversations therein, we found the records properly

       authenticated. Id.


[18]   Here, Detective Melton described the procedure used to unlock the password-

       protected cellphone and after opening up the Facebook application, he located

       an account under the name of Bandman Trapp. Upon preliminary questioning

       by the State, Detective Melton explained that there are several ways a Facebook

       account could be accessed. He clarified that anyone who signed into the

       Facebook account, through a computer or cellphone, could compose messages

       that would then sync to the Facebook application on the recovered cellphone.

       In other words, Detective Melton had “no idea who made that statement or

       who composed that message.” (Tr. Vol. III, p. 72). Unlike the defendants in

       Wilson and M.T.V., Richardson did not present any evidence describing

       distinctive characteristics that could connect the particular statement to

       Kendall, nor did he present any other indicia of reliability establishing Kendall

       as the author of the contested statement. Accordingly, the trial court did not

       abuse its discretion when it refused to admit the Facebook message.


                                                   II. Self-Defense


[19]   Next, Richardson contends that the State failed to present sufficient evidence

       beyond a reasonable doubt to rebut his claim of self-defense. The standard for

       reviewing a challenge to the sufficiency of evidence to rebut a claim of self-

       defense is the same standard used for any claim of insufficient evidence. Wilson

       v. State, 770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh the evidence nor


       Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017    Page 10 of 14
       judge the credibility of witnesses. Id. If there is sufficient evidence of probative

       value to support the conclusion of the trier of fact, the judgment will not be

       disturbed. Id.


[20]   “A valid claim of self-defense is a legal justification for an otherwise criminal

       act.” Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). To prevail on his self-

       defense claim, Richardson must show that he: (1) was in a place where he had

       a right to be; (2) acted without fault; and (3) was in reasonable fear of

       apprehension of bodily harm. I.C. § 35-41-3-2; Henson v. State, 786 N.E.2d 274,

       277 (Ind. 2003). A person who provokes, instigates, or participates willingly in

       the violence does not act without fault for the purposes of self-defense. Shoultz

       v. State, 995 N.E.2d 647, 660 (Ind. Ct. App. 2013), trans. denied. A mutual

       combatant, whether or not the initial aggressor, must declare an armistice

       before he may claim self-defense. Wilson, 770 N.E.2d at 801.


[21]   When self-defense is raised and finds support in the evidence, the State bears

       the burden of negating at least one of the necessary elements. Id. at 800. The

       State may meet this burden by offering evidence directly rebutting the defense,

       by affirmatively showing that the defendant did not act in self-defense, or by

       relying on the sufficiency of the evidence from its case-in-chief. Miller v. State,

       720 N.E.2d at 696, 700 (Ind. 1999). If a defendant is convicted despite his self-

       defense claims, we will reverse only if no reasonable person could say that self-

       defense was negated beyond a reasonable doubt. Wilson, 700 N.E.2d at 801.




       Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017       Page 11 of 14
[22]   Richardson’s claim of self-defense rested entirely on Gilbert’s testimony and the

       surveillance video of the incident. He presented a theory that he shot Kendall

       in response to Kendall grabbing a gun from his waistband and clicking the

       trigger, which failed to fire because there was no bullet in the chamber. Upon

       rendering its guilty judgment, the trial court discussed Richardson’s self-defense

       claim as follows:


               The [c]ourt finds that first at looking at this, and as I indicated, I
               looked at this, the tapes for about four hours last night and I
               looked at, again, reviewed two critical parts of the tape, one the
               part of the shooting, the second, the part of the grocery store and
               whether or not there was a handoff of a weapon or not. Those to
               me were the two critical points at issue. . . . The [c]ourt does not
               believe that this was self-defense. It believes the State’s case in
               chief proved beyond a reasonable doubt, one, that [Richardson]
               did fire the shot and did knowingly killed [Kendall], two, that it
               was not a matter of self-defense. The film does not show the
               decedent in this case attacking anyone, raising his hands or doing
               anything, even if he had his hand on the gun outside. [Gilbert] is
               simply not credible on this point. [Gilbert’s] testimony indicates
               he was standing not near—that he was merely watching and not
               doing anything, the tape is pretty clear to the [c]ourt that once
               [Richardson] shoots [Kendall], everybody is moving and
               everybody is moving quickly. And so the [c]ourt doesn’t find
               him credible on that point and does find the tape to be pretty
               clear, that the [three defendants] fled the area, they did not return
               to the area in terms of a self-defense claim, in the common
               language of things, they didn’t stand their ground, wait for the
               police and tell them that it was a justified shooting. They didn’t
               do anything to aid [Kendall]. And, again, this is someone,
               according to [Gilbert], they were all friends and had no beef
               against each other and that they all got along . . . This was a
               deliberate shooting. It was a deliberate killing.


       Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017       Page 12 of 14
       (Tr. Vol. III, pp. 99-101).


[23]   On appeal, Richardson urges us to re-interpret the images captured by the

       surveillance video to find that Kendall made a movement “which could have

       been a reach for his loaded weapon” immediately before Richardson pointed a

       gun and shot Kendall. (Appellant’s Br. p. 20). He also argues that the trial

       court “could not properly consider Gilbert’s testimony, and any lack of his

       credibility, as evidence against Richardson.” (Appellant’s Br. p. 17). However,

       as there were no eyewitnesses to the killing and Gilbert was the only defendant

       testifying, Richardson relied on Gilbert’s version of the facts in addition to his

       interpretation of the surveillance video to bolster his claim of self-defense. In

       fact, during closing argument, Richardson compared Gilbert’s testimony and

       the images captured on the surveillance tapes almost side-by-side, noting that

       “Gilbert got up there and told the truth.” (Tr. Vol. III, p. 93). If any error

       existed in the trial court’s consideration of Gilbert’s testimony when weighing

       its judgment against Richardson, it was invited by Richardson and he cannot

       now be heard to complain. In other words, Richardson’s entire argument is an

       invitation to reweigh the evidence displayed on the surveillance video and

       Gilbert’s credibility. We decline to accept his invitation. See Wilson, 770

       N.E.2d at 801.


                                               CONCLUSION
[24]   Based on the foregoing, we hold that the trial court properly excluded a

       Facebook message from the evidence at trial; and the State presented sufficient

       evidence beyond a reasonable doubt to rebut Richardson’s claim of self-defense.
       Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017     Page 13 of 14
[25]   Affirmed.


[26]   Najam, J. and Bradford, J. concur




       Court of Appeals of Indiana | Opinion 49A02-1701-CR-17 | July 6, 2017   Page 14 of 14
