MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Apr 01 2020, 10:13 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
Madison, Indiana
                                                          Samantha M. Sumcad
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Scott M. Vaughn,                                          April 1, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1293
        v.                                                Appeal from the Dearborn
                                                          Superior Court
State of Indiana,                                         The Honorable Jonathan N.
Appellee-Plaintiff                                        Cleary, Judge
                                                          Trial Court Cause No.
                                                          15D01-1902-F3-5



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020                   Page 1 of 15
[1]   Scott M. Vaughn appeals his conviction of Level 3 felony dealing in

      methamphetamine, 1 Level 6 felony possession of a syringe, 2 and Class C

      misdemeanor possession of paraphernalia. 3 Vaughn presents three issues for

      our review:


                      1. Whether the trial court abused its discretion by admitting
                         evidence of an alleged Facebook conversation between
                         Vaughn and a confidential informant;


                      2. Whether the State presented sufficient evidence to convict
                         Vaughn of Level 3 felony dealing in methamphetamine,
                         Level 6 felony possession of a syringe, and Class C
                         misdemeanor possession of paraphernalia; and


                      3. Whether Vaughn’s fourteen-year sentence was
                         inappropriate in light of the nature of his offense and his
                         character.


      We affirm.



                            Facts and Procedural History
[2]   In 2019, Eli McGuire was helping local law enforcement as a confidential

      informant (hereinafter “CI”). McGuire was told by a friend that Vaughn was

      selling methamphetamine. McGuire reached out to Vaughn on Facebook



      1
          Ind. Code § 35-48-4-1.1(d)(1) (2017).
      2
          Ind. Code § 16-42-19-18(a)(1) (2015).
      3
          Ind. Code § 35-48-4-8.3(b)(1) (2015).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020    Page 2 of 15
      about buying drugs. Vaughn sent McGuire a picture of his stash of

      methamphetamine. Vaughn agreed to meet with McGuire to sell him six grams

      of methamphetamine. McGuire informed the police that he had set up a

      meeting.


[3]   Prior to the meeting, the police provided McGuire with money for the purchase

      and a recording device. McGuire met Vaughn in a parking lot. Vaughn

      entered McGuire’s car and produced multiple bags containing

      methamphetamine. McGuire bought four small baggies containing

      methamphetamine. After the sale was complete, Vaughn exited the car and

      was quickly apprehended. As part of a search incident to Vaughn’s arrest,

      police found money, a syringe, a cut straw, 4 and a bag containing

      methamphetamine.


[4]   Vaughn admitted to the police that he sold McGuire methamphetamine.

      Vaughn also gave the police permission to search his phone. Based on the

      police investigation, the State charged Vaughn with Level 3 felony dealing in

      methamphetamine, Level 6 felony possession of methamphetamine, 5 Level 6

      felony possession of a syringe, and Class C misdemeanor possession of

      paraphernalia. A jury found Vaughn guilty of all four counts, but the trial court

      refused to enter the conviction of Level 6 felony possession of




      4
        The probable cause affidavit stated that “short pieces of straw are commonly used to introduce illegal
      substances into the body.” (App. Vol. II at 18.)
      5
        Ind. Code § 35-48-4-6.1(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020                     Page 3 of 15
      methamphetamine on double jeopardy grounds. The trial court sentenced

      Vaughn to fourteen years in prison with one year suspended to probation for his

      conviction of Level 3 felony dealing in methamphetamine, two years in prison

      with one year suspended to probation for his conviction of Level 6 felony

      possession of a syringe, and sixty-days for his conviction of Class C

      misdemeanor possession of paraphernalia. His sentences for possession of

      syringe and possession of paraphernalia were to be served concurrently with the

      conviction of dealing in methamphetamine.



                             Discussion and Decision
                                1. Admission of Evidence
[5]   “A trial court has broad discretion in ruling on the admissibility of evidence and

      we will disturb its rulings only where it is shown that the court abused that

      discretion.” Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). An abuse of

      discretion occurs if the trial court’s decision is “clearly against the logic and

      effect of the facts and circumstances before the court, or the reasonable,

      probable, and actual deductions to be drawn therefrom.” Anglemyer v. State, 868

      N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).

      Vaughn argues that the trial court abused its discretion when it admitted photos

      of a conversation Vaughn had with individuals using the Facebook Messenger

      app because the messages were not properly authenticated.


[6]   “To satisfy the requirement of authenticating or identifying an item of evidence,

      the proponent must produce evidence sufficient to support a finding that the
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 4 of 15
      item is what the proponent claims it is.” Ind. Evid. R. 901. Authentication of

      an exhibit can be established by either “direct or circumstantial evidence.”

      Newman v. State, 675 N.E.2d 1109, 1111 (Ind. Ct. App. 1996). Testimony that

      an item is what it is claimed to be, by a witness with knowledge, is sufficient to

      authenticate an item. Evid. R. 901. Distinctive characteristics like “the

      appearance, contents, substance, [and] internal patterns” taken together with all

      the circumstances is another way to authenticate an item of evidence. Id.

      “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. “Any inconclusiveness regarding the

      exhibit’s connection with the events at issue goes to the exhibit's weight, not its

      admissibility.” Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans.

      denied.


[7]   State’s Exhibits 27-A and 28-A contain photos police took of a conversation on

      the phone that the State alleged Vaughn and another person had via Facebook

      Messenger. In the conversation, Vaughn was attempting to set up drug deals.

      The State took these photos after getting permission from Vaughn to search his

      phone. Officer Kolb testified he had taken the photos and they were a true and

      accurate copy of the photograph he took of Vaughn’s phone. (Tr. Vol. IV at

      134, 137.) The State did not elicit testimony as to who authored the

      conversation. Vaughn’s counsel objected to the admission of both 27-A and 28-

      A arguing the photos had not been properly authenticated. The trial court

      overruled the objection and admitted both exhibits into evidence.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 5 of 15
  [8]            “Even though we have determined that a text message stored in
                a cellular telephone is intrinsic to the telephone, a proponent may
                offer the substance of the text message for an evidentiary purpose
                unique from the purpose served by the telephone itself. Rather,
                in such cases, the text message must be separately authenticated
                pursuant to Indiana Evidence Rule 901(a).”


        Hape v. State, 903 N.E.2d 977, 991 (Ind. Ct. App. 2009), trans. denied. In M.T.V.

        v. State, 66 N.E.3d 960 (Ind. Ct. App. 2016), this Court concluded Facebook

        conversations were properly authenticated by testimony from the defendant

        admitting to the conversation and from an affidavit from Facebook’s authorized

        record custodian. Id. at 964. Neither of those methods of authentication

        occurred here. While the State properly authenticated the photos of the phone

        through Officer Kolb’s testimony indicating he took the photos, the State did

        not lay sufficient foundation to authenticate the conversation depicted in the

        photos. Thus, we conclude the trial court abused its discretion in admitting

        State’s exhibits 27-A and 28-A. See Richardson v. State, 79 N.E.3d 958, 964 (Ind.

        Ct. App. 2017) (trial court properly denied admission of Facebook messages

        when State failed to properly authenticate the messages), trans. denied.


[9]     Having concluded the court improperly admitted State’s Exhibits 27-A and 28-

        A, we next assess whether the error was harmless. “Harmless error is error that

        does not affect the substantial rights of a party given the error’s likely impact on

        the jury in light of other evidence presented at trial.” Raess v. Doescher, 883

        N.E.2d 790, 796 (Ind. 2008), reh’g denied. “The improper admission of evidence

        is harmless error when the conviction is supported by such substantial


        Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 6 of 15
       independent evidence of guilt as to satisfy the reviewing court that there is no

       substantial likelihood that the questioned evidence contributed to the

       conviction.” Barker v. State, 695 N.E.2d 925, 931 (Ind. 1998), reh’g denied. The

       erroneous admission of evidence may also be harmless if that evidence is

       cumulative of other evidence admitted. Donaldson v. Indianapolis Pub. Transp.

       Corp., 632 N.E.2d 1167, 1172 (Ind. Ct. App. 1994).


[10]   Police arrested Vaughn after observing him perform a drug deal with their CI.

       During a search of Vaughn, officers located a syringe, a bag with a substance

       identified as methamphetamine, numerous other little baggies, and a cut straw.

       Police also seized money that matched the money that was given to the CI to

       purchase the drugs. Officer Jason Seikman testified to an interview conducted

       with Vaugh at the law enforcement center. Officer Seikman explained

       “[Vaughn] stated he was selling meth to pay bills. [Vaughn] knew he wasn’t

       going to get out of it.” (Tr. Vol. III at 10.) The CI also testified to other

       properly admitted electronic message conversations he had with Vaughn in

       which Vaughn arranged to sell methamphetamine. Therefore, any error in the

       admission of Vaughn’s Facebook messages in State’s Exhibits 27-A and 28-A

       was harmless because the evidence in question was cumulative of other

       properly admitted evidence. See Leonard v. State, 86 N.E.3d 406, 413 (Ind. Ct.

       App. 2017) (error in the admission of evidence is harmless if cumulative of

       other properly admitted evidence), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 7 of 15
                                   2. Sufficient Evidence
[11]   Vaughn argues the police entrapped him, and therefore, there is insufficient

       evidence to convict him of dealing in methamphetamine. ‘Entrapment exists

       where an otherwise law-abiding citizen is induced through police involvement

       to commit the charged crime.” Lahr v. State, 640 N.E.2d 756, 760 (Ind. Ct.

       App. 1994), trans. denied. Our legislature has defined entrapment::


                (a) It is a defense that:


                        (1) the prohibited conduct of the person was the product of
                        a law enforcement officer, or his agent, using persuasion or
                        other means likely to cause the person to engage in the
                        conduct; and


                        (2) the person was not predisposed to commit the offense.


               (b) Conduct merely affording a person an opportunity to commit
               the offense does not constitute entrapment.


       Ind. Code § 35-41-3-9.


[12]   If a defendant asserts the defense of entrapment and establishes police

       inducement, then the burden of proof shifts to the State. Dockery v. State, 644

       N.E.2d 573, 577 (Ind. 1994). The State must either disprove police inducement

       by demonstrating beyond a reasonable doubt that “the defendant’s prohibited

       conduct was not the product of the police efforts,” McGowan v. State, 674

       N.E.2d 174, 175 (Ind. 1996), reh’g denied, or establish the defendant’s

       predisposition to commit the crime. Dockery, 644 N.E.2d at 577. If the State

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 8 of 15
       does not meet its burden of proof, then entrapment has been established as a

       matter of law. Id.


[13]   “We review a claim of entrapment using the same standard that applies to other

       challenges to the sufficiency of evidence.” Id. at 578. We consider only the

       evidence supporting the verdict and draw all reasonable inferences therefrom.

       Id. We neither reweigh the evidence nor judge witness credibility. Id. If the

       record contains substantial evidence of probative value that would have

       permitted a reasonable trier of fact to infer guilt beyond a reasonable doubt,

       then we will uphold a conviction. Id.


[14]   Vaughn contends the police induced his behavior by using a confidential

       informant to set up the controlled buy. The CI, in return for helping police

       arrest drug dealers, would receive consideration on his open case. Vaughn

       asserts the CI was an agent of law enforcement and because the police

       controlled the buys, provided the money, and set up surveillance of the buy, this

       all induced Vaughn to commit the crime of dealing in methamphetamine.


[15]   Accordingly, the burden shifted to the State to either disprove inducement or

       demonstrate Vaughn was predisposed to commit the crime. See McGowan, 674

       N.E.2d at 175 (holding State must disprove inducement or prove

       predisposition). The State argues Vaughn “was merely presented with the

       opportunity, which he took full advantage of[.]” (Appellee’s Br. at 15.) Indiana

       Code § 35-41-3-9(b) states, “conduct merely affording a person an opportunity




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 9 of 15
       to commit the offense does not constitute entrapment.” However, our Indiana

       Supreme Court has explained:


               Part (b) of the statute is explanatory of the level of police activity
               that would be necessary to support the entrapment defense but
               this section does not negate the requirement of the necessary
               predisposition on the part of the accused. We have consistently
               held that if the accused had the predisposition to commit the
               crime and the police merely afforded him an opportunity to do
               so, then the defense of entrapment is not available.


       Baird v. State, 446 N.E.2d 342, 344 (Ind. 1983). Thus, if the police merely

       afforded a citizen an opportunity to commit a crime, then the State may not

       have induced that citizen’s criminal behavior, see, e.g., Shelton v. State, 679

       N.E.2d 499, 502 (Ind. Ct. App. 1997) (evidence police “merely placed the deer

       decoy off the road where the Sheltons could see it” was not adequate to

       demonstrate inducement sufficient to entitle Sheltons to jury instruction on

       entrapment), but it does not relieve the State of its obligation to demonstrate a

       defendant’s predisposition.


[16]   First, we look to whether the police induced Vaughn to deal

       methamphetamine. The CI contacted Vaughn only twice before Vaughn

       offered to sell to him. Additionally, Vaughn set the price of the drugs, set up the

       time and location of the deal, brought the drugs, and completed the deal.

       However, that is not the end of our inquiry. The State was also required to

       prove Vaughn was predisposed to commit dealing in methamphetamine. See

       Price v. State, 397 N.E.2d 1043, 1046 (Ind. Ct. App. 1979) (“Insomuch as the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 10 of 15
       idea of the charged illegal conduct originated with the police, the State has the

       burden of proving a predisposition on the part of defendant to engage in the

       illegal activities.”).


[17]   “Whether a defendant was predisposed to commit the crime charged is a

       question for the trier of fact,” and the State must prove that predisposition

       beyond a reasonable doubt using “evidence subject to the normal rules of

       admissibility.” Dockery, 644 N.E.2d at 577. Several factors may be relevant to

       determining whether a defendant was predisposed to commit a crime:


               (1) the character or reputation of the defendant; (2) whether the
               suggestion of criminal activity was originally made by the
               government; (3) whether the defendant was engaged in criminal
               activity for a profit; (4) whether the defendant evidenced
               reluctance to commit the offense, overcome by government
               persuasion; and (5) the nature of the inducement or persuasion
               offered by the government.


       Kats v. State, 559 N.E.2d 348, 353 (Ind. Ct. App. 1990), trans. denied. Additional

       facts that suggest criminal predisposition include familiarity with jargon and

       prices, engaging in multiple transactions, or arranging future transactions. Riley

       v. State, 711 N.E.2d 489, 494 (Ind. 1999).


[18]   Vaughn argues the multiple requests by the CI persuaded him to sell the

       methamphetamine. However, the State provided testimony that Vaughn was

       known to sell drugs. The CI testified he was connected to Vaughn through a

       friend who had previously purchased drugs from Vaughn. (Tr. Vol. III at 223.)

       Further, the CI contacted Vaughn only twice before Vaughn willingly offered to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 11 of 15
       sell him methamphetamine. State’s Exhibit 33-A contained Facebook messages

       between Vaughn and the CI, Vaughn sent multiple pictures of

       methamphetamine, understood the slang terms used for the methamphetamine,

       and continued to message the CI about buying from him after they initially

       failed to figure out a time to meet. See Henrichs v. State, 455 N.E.2d 599, 601

       (Ind. 1983) (defendant’s understanding of drug trafficking terms and readiness

       to sell drugs showed a predisposition).


[19]   Because the evidence demonstrates Vaughn was predisposed to commit crime,

       and the police did not induce Vaughn into dealing in methamphetamine, but

       rather provided him an opportunity, we are not convinced Vaughn was

       entrapped into committing his offense. See Wallace v. State, 498 N.E.2d 961, 965

       (Ind. 1986) (entrapment defense failed when there was sufficient evidence to

       demonstrate the defendant acted on his own accord).


                                  3. Appropriate Sentence
[20]   Vaughn argues his sentence is inappropriate in light of his character and the

       nature of his offenses. Our standard for reviewing this issue is well settled.


               We “may revise a sentence authorized by statute if, after due
               consideration of the trial court’s decision, the Court finds that the
               sentence is inappropriate in light of the nature of the offense and
               the character of the offender.” Ind. Appellate Rule 7(B).
               “Although appellate review of sentences must give due
               consideration to the trial court’s sentence because of the special
               expertise of the trial bench in making sentencing decisions,
               Appellate Rule 7(B) is an authorization to revise sentences when
               certain broad conditions are satisfied.” Shouse v. State, 849

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 12 of 15
               N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
               quotation marks omitted). “[W]hether we regard a sentence as
               appropriate at the end of the day turns on our sense of the
               culpability of the defendant, the severity of the crime, the damage
               done to others, and myriad other factors that come to light in a
               given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
               In addition to the “due consideration” we are required to give to
               the trial court’s sentencing decision, “we understand and
               recognize the unique perspective a trial court brings to its
               sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
               (Ind. Ct. App. 2007).


       Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

       denied. The appellant bears the burden of demonstrating his sentence is

       inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

       trans. denied. Although Vaughn appeals only his sentence for Level 3 felony

       dealing in methamphetamine, “[o]ur review of the sentence should focus on the

       forest - the aggregate sentence - rather than the trees - consecutive or

       concurrent, number of counts, or length of the sentence on any individual

       count.” Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012).


[21]   When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). A

       Level 3 felony is punishable by a fixed term between three and sixteen years,

       with the advisory sentence being ten years. Ind. Code § 35-50-2-5(b) (2014).

       The trial court sentenced Vaughn to fourteen years; thus, he received a sentence

       between the advisory and the maximum. A Level 6 felony is punishable by a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 13 of 15
       fixed term between six months and two-and-one-half years. Ind. Code § 35-50-

       2-7(b) (2016). The trial court sentenced Vaughn to two years; thus, he received

       a sentence between the advisory and the maximum. The sentence for a Class C

       misdemeanor is punishable by a fixed term of not more than sixty days. Ind.

       Code § 35-50-3-4 (1978). The trial court sentence Vaughn to sixty days;

       therefore, he received the maximum sentence.


[22]   Vaughn was arrested after selling methamphetamine to a CI. Vaughn used

       social media and text messages to communicate with the CI and set up the deal.

       There is nothing particularly egregious regarding the nature of Vaughn’s

       offense, however his character does warrant an aggravated sentence.


[23]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.

       App. 2013). Vaughn has a lengthy juvenile record including adjudications for

       battery, intimidation, and receiving stolen property. Vaughn also has adult

       convictions of escape, criminal confinement, possession of a controlled

       substance, theft, and auto theft. Vaughn argues his difficult childhood should

       entitle him to a more lenient sentence. However, “evidence of a difficult

       childhood is entitled to little, if any, mitigating weight.” Bethea v. State, 983

       N.E.2d 1134, 1141 (Ind. 2013). Given Vaughn’s poor character as

       demonstrated by his many adult convictions and juvenile adjudications, we

       cannot say Vaughn’s sentence is inappropriate. See Clark v. State, 26 N.E.3d

       615, 619 (Ind. Ct. App. 2014) (defendant’s extensive criminal history showed

       bad character and allowed for aggravated sentence), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 14 of 15
                                          Conclusion
[24]   We conclude any evidence improperly admitted was harmless error because the

       improperly admitted evidence was cumulative of other properly admitted

       evidence. Additionally, the State provided sufficient evidence to demonstrate

       Vaughn was not entrapped. Finally, Vaughn’s poor character allowed for an

       aggravated sentence and thus his sentence was not inappropriate. Accordingly,

       we affirm.


[25]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020   Page 15 of 15
