                                                                            FILED
                                                                       Mar 22 2019, 7:52 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Ryan P. Dillon                                            Curtis T. Hill, Jr.
Dillon Legal Group, P.C.                                  Attorney General of Indiana
Franklin, Indiana
                                                          Evan M. Comer
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jaqueline B. Walters,                                     March 22, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1021
        v.                                                Appeal from the Morgan Superior
                                                          Court
State of Indiana,                                         The Honorable Brian Williams,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          55D02-1511-F3-1653



May, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019                              Page 1 of 20
[1]   Jaqueline B. Walters appeals her conviction for Level 3 felony aiding,

      inducing, or causing armed robbery.1 She presents two issues for our review

      that we restate as:


               1.       Whether the trial court abused its discretion in admitting
                        phone records from Verizon; and


               2.       Whether the State presented sufficient evidence Walters
                        aided, induced, or caused an armed robbery.


      We reverse.



                             Facts and Procedural History                                  2




[2]   Walters started working at the deli in the Morgantown IGA in June 2015. On

      August 30, 2015, Walters and store manager Wilma Floyd were scheduled to

      open the store. This required both to be at the store an hour before the store

      opened to customers. Floyd had the keys to get into the building and to access

      the safe.


[3]   Walters’ long-term boyfriend, Randall Shane Slaten, dropped her off at the

      store. As Walters approached the door, Floyd unlocked and opened the door

      for her, disarming the alarm in the process. However, as Walters proceeded




      1
       Ind. Code §§ 35-42-5-1 (2015) (elements for robbery) & 35-41-2-4 (1977) (elements for “Aiding, inducing or
      causing an offense”).
      2
       We note the font used in Appellant’s brief does not conform with the approved fonts or sizes listed in
      Indiana Appellate Rule 43(D).

      Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019                               Page 2 of 20
      through the door, a male with a gun (hereinafter, “the Robber”) pushed Walters

      and entered the store. Floyd attempted to push the Robber back through the

      door but was unsuccessful. Floyd and the Robber scuffled. Eventually, the

      Robber’s gun went off. No one was shot, but Floyd then stopped resisting.


[4]   The Robber instructed Floyd and Walters to take him to the safe. The store

      surveillance system was able to record much of the interaction. Floyd led the

      Robber to the room in which the safe was. However, during the scuffle, she

      had dropped her keys and could not enter the room. The Robber instructed

      Walters to retrieve the keys. Walters complied.


[5]   Floyd opened the room to the safe and, subsequently, the safe and cabinets in

      that room. The Robber stole approximately $6,000.00. Before he left, the

      Robber had Walters put zip ties around Floyd’s wrists. The Robber tightened

      Floyd’s zip ties and then put zip ties around Walters’ wrists, too. The Robber

      patted Floyd down for a cell phone and ripped the land line phone from the

      wall. The Robber then left.


[6]   Floyd had Walters cut her zip ties from her wrists and then Floyd freed

      Walters. Floyd had secreted a small flip phone in her pocket that the Robber

      did not find. Floyd called 911 and officers quickly arrived. She also called the

      owner of the store, Randy Wood.


[7]   Morgantown Police Officer Jeffrey Jackson arrived at the scene first. He found

      a hat worn by the Robber and a magazine for a gun. Morgan County Sheriff’s



      Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019        Page 3 of 20
       Department Detective Mark Anderson arrived and interviewed the women

       separately.


[8]    On September 1, 2015, Detective Anderson requested Walters give a more

       detailed interview. When she did not arrive at the station on time, both

       Morgantown Police Marshal Marvin McGregor and Detective Anderson called

       to verify she was still planning to attend. Walters explained she was running

       late but would be there soon.


[9]    After Walters gave the detailed interview, Detective Anderson believed

       Walters’ account of the events was inconsistent with what she had previously

       reported and with the video surveillance. He noted the video showed Walters

       was frequently not under direct control of the Robber. In the second interview,

       Walters said she “saw the robber cock the gun as they were going down the

       hallway[,]” (Tr. Vol. 3 at 122), but she had not indicated she had seen that in

       the first interview.


[10]   When the interview was complete, Detective Anderson asked Walters for her

       phone and whether he could look through it. Walters told Detective Anderson

       that Slaten had lost it. Slaten indicated Walters still had it. The phone was

       never produced. Detective Anderson “sent a preservation letter[,]” (Tr. Vol. 3

       at 129), to put a hold on the Verizon phone records for the number Walters said

       she shared with her boyfriend (hereinafter, “6065 Phone”). Detective Anderson

       explained this action preserves “all of the phone records that they have up to

       that point, text messages, and everything[.]” (Id.)


       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019       Page 4 of 20
[11]   Detective Anderson sought and received a search warrant for the Verizon

       records for the phone. Because he had requested Verizon preserve the account,

       Detective Anderson also received the text message records for the time frame

       surrounding the robbery date. 3 Therein, one number was repeatedly texted.

       The text of the messages between 6065 Phone and that number discussed a plan

       to rob the IGA. Officer Jackson determined the phone number belonged to

       John Nocito. Nocito was the long-term boyfriend of Slaten’s sister. Detective

       Anderson obtained a DNA swab from Nocito, and his DNA matched the DNA

       found on the cap dropped by the Robber at the store.


[12]   The State charged Walters with aiding, inducing, or causing an armed robbery.

       A jury trial held in July 2016 resulted in a hung jury. A second jury trial was

       scheduled for March 6-8, 2018. Prior to the second jury trial, the State filed a

       motion for an evidentiary hearing as they planned on advancing a theory of

       conspiracy between Walters, Slaten, and Nocito. The State wished the text

       messages to be deemed statements of coconspirators so the statements would

       not be hearsay.


[13]   On July 13, 2017, at the evidentiary hearing, the State requested the trial court

       take judicial notice of the evidence presented during Slaten and Nocito’s trials

       i.e., the cell phone records from Verizon. Walters objected because she had not

       been present during those trials to “make any objections of her own[.]” (Tr.



       3
        Detective Anderson explained that not all text messages are recoverable from Verizon phone records
       because texts sent or received by a computer are not always preserved in Verizon’s records.

       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019                            Page 5 of 20
       Vol. 2 at 4.) She conceded the trial court could “take judicial notice that that

       trial occurred and certain evidence was presented” but not as to whether it was

       admissible against her. (Id.) The trial court agreed regarding the admissibility

       but said, “I think we’re talking about whether or not and how evidence is

       presented here to me today regarding the existence or nonexistence of

       conspiracy.” (Id. at 5.) The trial court took judicial notice of the Verizon cell

       phone records containing the text messages.


[14]   When Detective Anderson started to testify regarding the contents of the text

       messages, Walters objected as no foundation had been laid regarding the

       inception of the text message records. The trial court, reading from the

       evidence rules, indicated the “rules are inapplicable to other than respect to

       privileges[,]” (id. at 7), and do not apply to “preliminary, questions of fact, the

       determination of questions of fact preliminary to the admissibility of evidence

       and the issues to be determined by the Court under rule 104 A [sic].” (Id.)

       Walters withdrew her objection.


[15]   In support of its conspiracy theory, the State presented evidence the text

       messages referenced stealing a sum of money that was “consistent with the

       amount of money taken[.]” (Id. at 8.) The text messages indicate Nocito would

       be “working with my girl named Jackie.” (Id.) The messages indicate the days

       Walters worked and that the robbery needed to occur on a day she was

       working. The messages indicate the writer of the messages would need to get

       more information from Walters about the best day to rob the store.

       Additionally, the State presented evidence Walters’ statements to the police had

       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019         Page 6 of 20
       been inconsistent with what was shown on the video and Walters had been

       complicit in hiding the 6065 Phone from the police. Finally, the State argued

       Walters’ insistence that Slaten was not the getaway driver, when she was not

       present to see the Robber leave the store, were indicative of her knowledge

       Nocito had his own driver—a fact that was referenced in the text messages.


[16]   Walters argued the text messages actually tell Nocito he was doing the job “on

       Jackie[,]” (id. at 14) (emphasis added) (see also Exhibit Index at 70 (Exhibit 45

       containing text message records)), 4 rather than with her and that the State could

       not prove who wrote the messages on the 6065 Phone. Additionally, Walters

       argued the State did not present independent evidence of a conspiracy other

       than the text messages.


[17]   The trial court found “the State ha[d] met its threshold to show the existence of

       a conspiracy[,]” (Tr. Vol. 2 at 23), and the phone records were admissible as

       non-hearsay under that theory. 5 At the beginning of the jury trial, regarding the

       admission of the text message records, the trial court stated it “d[id]n’t intend to

       relitigate that[.]” (Id. at 30.) Walters objected to the lack of foundation and

       trustworthiness of those records. The trial court said:




       4
        The exhibit volume is not independently paginated. As the exhibits at issue are lengthy, we reference the
       page numbers as indicated in the digital PDF.
       5
         Although the trial court requested the State prepare an order memorializing this ruling, no such order is in
       the record before us. We cannot confirm whether such an order was put in writing because Walters did not
       provide us with a chronological case summary as required by Indiana Appellate Rule 50(A)(2)(a); therefore,
       we proceed based on the statements made in the transcript.

       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019                                 Page 7 of 20
                It would be my intention as to the foundational testimony for
                that evidence to incorporate by reference the foundational
                hearing that was conducted outside the presence of the jury at the
                last hearing, unless there’s a new and different arguments [sic] to
                be addressed, I don’t see any benefit in having the jury waiting in
                the wings while we relitigate that to the same evidence to the
                same arguments and to the same conclusion. So I think
                incorporation of that would be appropriate.


       (Id. at 31.)


[18]   When the State presented the first set of text messages as Exhibit 45, 6 it also

       presented an affidavit of certification from Verizon. The records were procured

       “about a month after [Detective Anderson] submitted the search warrant . . .

       2015[,]” (Tr. Vol. 3 at 136), but the certification was dated February 27, 2017.




       6
        The State introduced the disc of what was in Exhibit 45 as Exhibit 62. Walters objected to the admission of
       Exhibit 62 “as to the lack of certification again[.]” (Tr. Vol. 3 at 149.) As the same certification served for
       both exhibits, we address them both as the same issue.

       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019                                 Page 8 of 20
       (Exhibit Index at 67.)


[19]   Walters objected to the introduction of the phone records “on hearsay

       grounds.” (Tr. Vol. 3 at 137). She argued they were not self-authenticating and

       did not “comply with Indiana Rule 803(d).” (Id.) She asserted the certification

       was not specific and “could apply to anything [as it did not] state what phone
       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019      Page 9 of 20
       number it applies to . . . what search warrant it is responding to. It’s just what

       dates the records that it is attached cover.” 7 (Id.)


[20]   The State asked additional questions and Detective Anderson explained

       Verizon “create[d] a cause number of their own, or a case number of their own,

       and everything that comes in for that phone number from that search warrant

       or any other, it goes into that case number and is delivered out through that

       case number.” (Id. at 138.) If Verizon “find[s] additional stuff[,]” (id. at 139),

       “[i]t goes into that case file[.]” (Id.) He then explained Verizon’s encryption

       technique and the procedure to retrieve the documentation online. As to the

       gap between the records and the certification, Detective Anderson explained

       they were supposed to be together but Verizon had failed to send it originally,

       so he had to contact them again in 2017 and they “fixed it[.]” (Id. at 140.)

       Walters objected to Detective Anderson’s testimony as it was not clear “that

       this witness can know what Verizon is doing to these records and anything

       about that.” (Id.) The State responded Detective Anderson had talked to

       Verizon and then asked a follow up question as to how Detective Anderson had

       that information. Detective Anderson said:


                Yeah, we’re in contact with . . they have a team that’s all they do
                is search warrants and subpoenas, and I call them frequently and
                ask them questions, and I asked them about this, and he said that
                what they do is they just . . they can’t modify the records, all they




       7
        We note Walters was incorrect in her statement the certification listed the dates to which the records
       applied. The certification merely listed the date of Detective Anderson’s request. (See Exhibit Index at 67.)

       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019                               Page 10 of 20
               can do is take those records, put them in that file and send them
               to us, and they certified that that’s what they did. So the
               certification is just where they had sent those files from back in
               2015 to me and that nothing has changed from it.


       (Id. at 141.)


[21]   Walters still objected to the exhibit


               based on the previous argument, as well as Detective Anderson
               just stated that Verizon keeps this open and keeps adding records
               to it as it goes along, so there is absolutely no indication as to the
               dates and whether or not this complies with the original search
               warrant, or if it has gone outside the scope of previously
               traditionally authorized search warrants. So I do not think that
               this authorization provides trustworthiness as to the records
               being proposed entered into evidence.


       (Id.) However, the trial court found:


               Well, this is one of those things where the paper age and the
               digital age have not yet quite caught up with one another. Given
               my understanding of things, this is their method of delivery of
               certified documents, there’s a certification from a business
               records custodian. Objection is overruled, records are allowed in
               evidence.


       (Id. at 142.)


[22]   Detective Anderson also obtained the phone records for Nocito’s phone.

       Therein, Verizon provided the certification with the records. That certification

       was different from the certification of the 6065 Phone records as it included the

       phone number the records purported to represent.

       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019          Page 11 of 20
(Exhibit Index at 102, Exhibit 70) (full phone number redacted here but

provided in the exhibit). 8




8
 Exhibit 70 is merely a disc without the corresponding printout of the certificate. Therefore, we reference the
PDF pagination listing the disc.

Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019                               Page 12 of 20
[23]   The jury found Walters guilty. The trial court sentenced her to eight years.



                                  Discussion and Decision
                                        Admission of Evidence
[24]   The trial court has broad discretion when deciding whether to admit evidence.

       Gaby v. State, 949 N.E.2d 870, 877 (Ind. Ct. App. 2011). We will not reverse

       the trial court’s decision absent a showing of a manifest abuse of that discretion

       resulting in the denial of a fair trial. Id. An abuse of discretion occurs when the

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

       circumstances before the court. Id. “[F]oundational requirements to

       admissibility often require factual determinations by the trial court[.]” Ground

       v. State, 702 N.E.2d 728, 730 (Ind. Ct. App. 1998). These findings are entitled

       to the same deference, i.e. an abuse of discretion standard. Id. When the

       review involves the interpretation of a rule of evidence, that is a question of law

       for this court. Id.


[25]   Walters argues the certification used to authenticate the 6065 Phone records

       was not self-authenticating, reliable, or trustworthy because it was executed

       approximately eighteen months after production of the records, it was not

       notarized, the affidavit did not include the number of pages certified, and it did

       not “include any identification information by which anyone outside of

       possibly the proponent, Verizon, could tie the records to the phone number

       listed on the search warrant.” (Br. of Appellant at 10.) The State counters that

       the certificate is a proper authentication for the phone records to be considered
       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019          Page 13 of 20
       business records and, thus, be admissible under that exception to the rule

       against hearsay. See Ind. Evidence Rule 803(6) (business record exception). 9

       However, the State argues, the records are not hearsay because they were

       statements made by coconspirators. See Ind. Evidence Rule 801(d)(2)(E) (co-

       conspirator statements).


[26]   Hearsay is any statement made out of court and offered to prove the truth of the

       matter asserted in court. Evid. R. 801(c). Some statements that otherwise

       would be hearsay are defined as non-hearsay, such as statements made by

       coconspirators, when offered into evidence by an opposing party. Evid. R.

       801(d)(2)(E). To be admissible under this rule, the State must establish a

       conspiracy exists without using the statements at issue. M.T.V. v. State, 66

       N.E.3d 960, 964 (Ind. Ct. App. 2016), trans. denied. However, before reaching

       the subject of whether the statements were made pursuant to a conspiracy,

       because the “statements” consist of business records, those records must be

       authenticated. 10




       9
         Indiana Evidence Rule 803 was amended by 2019 Indiana Court Order 0004. This amendment consisted of
       the removal of a clause from Indiana Evidence Rule 803(3) and does not affect our analysis herein. C.O.
       0004.
       10
          The trial court’s refusal to address the authenticity of the records during the evidentiary hearing prior to
       trial has led to confusion. The trial court found, based on Indiana Evidence Rule 104(a), that preliminary
       questions did not require the court to be bound by the evidence rules. (See Tr. Vol. 2 at 7.) Walters then
       stopped arguing about foundation. Thus, the records were not authenticated at the pre-trial evidentiary
       hearing; rather, the foundational argument was delayed until the trial, contrary to the trial court’s statements
       at the beginning of the trial that it was incorporating the evidence from the “foundational hearing that was
       conducted . . . at the last hearing[.]” (Tr. Vol. 2 at 31.)

       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019                                 Page 14 of 20
[27]   “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.” Ind. Evidence Rule 901(a). Without

       being required to provide absolute proof of authenticity, the proponent must

       present “[e]vidence that establishes a reasonable probability that the document

       is what it is claimed to be[.]” Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App.

       2008), trans. denied. Records found to be business records under Indiana

       Evidence Rule 803(6), such as these, may be self-authenticating and an

       exception to the rule against hearsay, if they are accompanied by “a

       certification under oath of the custodian[.]” Ind. Evidence Rule 902(11).

       However, for the self-authentication to be valid, the records must be shown to

       be trustworthy. Id; see also Evid. R. 803(6)(E) (business records are not excluded

       by the rule against hearsay when “neither the source of information nor the

       method or circumstances of preparation indicate a lack of trustworthiness”).


[28]   Here, the certificate offered to authenticate the phone records for the 6065

       Phone was issued approximately eighteen months after the records were

       obtained, does not contain the phone number for which the search warrant

       requested records, does not contain the number of pages it purports to

       authenticate, and does not contain the dates the records encompass. The State

       only had the testimony of Detective Anderson, not a Verizon employee, to

       explain how Verizon explained to him their handling of search warrants and

       subpoenas and why the certificate was not sent with the records originally.




       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019       Page 15 of 20
[29]   Over Walters’ objection based on hearsay, Detective Anderson testified Verizon

       “create[d] a case number of their own, and everything that comes in for that

       phone number from that search warrant or any other, it goes into that case

       number and is delivered out through that case number.” (Tr. Vol. 3 at 138.)

       Detective Anderson explained he accessed the information via a password

       protected file he received from Verizon. When asked “what happens if they

       update it,” (id. at 139), Detective Anderson responded: “It goes into that case

       file . . . and everything is there that they’ve put in [and his] password is still

       good for that[.]” (Id.) When Detective Anderson testified about the phone

       records retrieved from Nocito’s phone, Walters noted the certification affidavit

       listed the phone number for which it purported to authenticate but the affidavit

       for 6065 Phone did not contain that information.


[30]   Walters argues this affidavit is similar to the affidavit presented in Speybroeck v.

       State, 875 N.E.2d 813 (Ind. Ct. App. 2007), reh’g denied. In Speybroeck, the

       affidavit presented to the trial court did not specify “the number of pages nor

       identif[y] the documents it purports to authenticate.” Id. at 820. The text of the

       affidavit appeared to be “merely a boilerplate recitation unconnected to the

       underlying documents.” Id. Additionally, the affidavit was signed and dated

       one day before the records were created. Id. Because of these problems, we

       held the affidavit was “insufficient to authenticate the . . . documents under

       Rule 902(9).” Id. The State argues Walters’ reliance on Speybroeck is misplaced

       because the affidavit in Speybroeck was pre-dated and “little more than a form

       letter.” (Br. of Appellee at 19.)

       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019          Page 16 of 20
[31]   Even if an affidavit purports to authenticate a business document, that evidence

       still may be excluded if “the circumstances of the record’s preparation indicate a

       lack of trustworthiness.” Speybroeck, 875 N.E.2d at 819. Although a valid

       certificate of authenticity may not need everything Walters complains this

       certificate is lacking, it does require some level of trustworthiness. By its

       tardiness and lack of conformity with the other Verizon certification used in this

       trial, this certificate lacks indicia of reliability. This certificate contains no other

       identifying characteristics, aside from Verizon’s internal case number. See supra

       ¶18. Without a timeframe reference and identification of the records in some

       way separate from the Verizon case number, it is unclear what documents this

       certificate purports to certify.


[32]   We cannot say the State provided proper authentication of these records to

       breach the threshold question of admissibility. See Speybroeck, 876 N.E.2d at

       820 (an affidavit containing neither number of pages nor document

       identification lacks trustworthiness). Without authentication, we do not reach

       the question of whether the statements made therein were admissible as

       coconspirator statements. The trial court abused its discretion when it admitted

       the evidence of the phone records for 6065 Phone without proper

       authentication. See id.


                                        Sufficiency of Evidence
[33]   When reviewing sufficiency of the evidence in support of a conviction, we will

       consider only probative evidence in the light most favorable to the trial court’s


       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019           Page 17 of 20
       judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The

       decision comes before us with a presumption of legitimacy, and we will not

       substitute our judgment for that of the fact-finder. Id. We do not assess the

       credibility of the witnesses or reweigh the evidence in determining whether the

       evidence is sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Reversal

       is appropriate only when no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

       required to overcome every reasonable hypothesis of innocence and is sufficient

       if an inference reasonably may be drawn from it to support the verdict. Id. at

       147.


[34]   To prove Walters aided, induced or caused armed robbery, the State had to

       prove Walters “knowingly aid[ed], induce[d], or cause[d] John A. Nocito to

       commit the offense of Armed Robbery, to-wit: John A. Nocito did knowingly

       by force, take the property belonging to Morgantown IGA, Morgantown,

       Indiana, from the presence of Wilma Floyd, while armed with a deadly

       weapon, to-wit: Handgun.” (App. Vol. 2 at 3); see also Ind. Code §§ 35-42-5-1 &

       35-41-2-4 (elements of robbery and aiding, inducing or causing an offense).


[35]   Walters argues the State, without the phone records, did not present sufficient

       evidence she aided Nocito in committing armed robbery. The State’s evidence

       of conspiracy was based almost solely on the records for 6065 Phone. Evidence

       independent of the phone records to support the State’s theory of conspiracy

       consisted of: 1) Walters’ statements to police were internally inconsistent; 2)

       Walters’ statements conflicted with the evidence shown on the store

       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019       Page 18 of 20
       surveillance video; 3) Walters complicity in hiding the 6065 Phone from the

       police; and 4) Walters’ assurance that Slaten was not the getaway driver.


[36]   None of these discrepancies, however, were what the State relied on to support

       its argument. The State relied almost solely on the evidence from the

       unauthenticated phone records to support its theory of a conspiracy between

       Walters, Slaten, and Nocito. There is not sufficient evidence, independent of

       the phone records, to support the State’s case against Walters. Therefore, we

       reverse her conviction.


                                             Double Jeopardy
[37]   Here, the admission of the 6065 Phone records was error. See supra ¶32.

       Without the admission of those records, the State did not present sufficient

       evidence to convince Walters of aiding, inducing, or causing armed robbery.

       See supra ¶36. When a conviction is reversed due to an error in the admission of

       evidence, double jeopardy concerns usually do not apply. Thompson v. State,

       690 N.E.2d 224, 237 (Ind. 1997). While “double jeopardy forbids a retrial . . . if

       the reviewing court concludes that the evidence is legally insufficient to support

       the conviction[,]” id., if the State were able to authenticate the phone records

       for 6065 Phone, the jury could have found Walters had conspired with Nocito.

       Therefore, the Double Jeopardy Clause does not preclude a retrial. See id.



                                                Conclusion


       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019       Page 19 of 20
[38]   The trial court abused its discretion when it admitted the unauthenticated

       phone records for 6065 Phone in the form of Exhibit 45 and 62. Without those

       exhibits, the State did not present sufficient evidence to prove Walters aided,

       caused, or induced Nocito to rob the grocery store with a gun. Accordingly, we

       reverse. However, as the jury could have found Walters guilty if those records

       were properly presented, double jeopardy does not attach and the State is

       allowed to retry Walters.


[39]   Reversed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1021 | March 22, 2019      Page 20 of 20
