                                                                                  Apr 30 2015, 10:51 am




      ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      P. Jeffrey Schlesinger                                      Gregory F. Zoeller
      Mark A. Bates                                               Attorney General of Indiana
      Appellate Public Defender
                                                                  Monika Prekopa Talbot
      Crown Point, Indiana
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Donnell D. Wilson,                                         April 30, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 45A03-1409-CR-317
              v.                                                 Appeal from the Lake Superior Court
                                                                 The Honorable Salvador Vasquez,
                                                                 Judge
      State of Indiana,                                          Cause No. 45G01-1303-MR-4
      Appellee-Plaintiff,




      Bradford, Judge.



                                            Case Summary
[1]   On March of 2013, Jonte Crawford and Appellant-Defendant Donnell Wilson

      shot and killed two rival gang members. During Wilson’s trial, the trial court

      allowed Appellee-Plaintiff the State of Indiana to enter into evidence several

      Twitter posts allegedly authored by Wilson which indicated that he was

      Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015                           Page 1 of 13
      involved in gang activity and was in possession of handguns similar to those

      used in the murders. A jury convicted Wilson of two counts of murder, Class B

      felony armed robbery, and Class D felony conspiracy to commit criminal gang

      activity. Following the convictions, the court proceeded to the second phase of

      the trial to determine whether Wilson’s sentence would be enhanced for

      criminal gang activity. Immediately after closing arguments were heard,

      Wilson erupted into an argument with individuals in the gallery, struggled with

      the bailiffs, and was removed from the court and excluded from trial until the

      sentencing hearing. The jury found that Wilson’s murder and robbery

      convictions should be enhanced for criminal gang activity.


[2]   Wilson raises three issues on appeal: (1) whether the trial court properly

      admitted the Twitter messages into evidence; (2) whether Wilson’s conviction

      for conspiracy to commit criminal gang activity should be vacated as being in

      conflict with his criminal gang activity enhancements; and (3) whether the trial

      court properly excluded Wilson from a portion of trial. We affirm in part,

      reverse in part, and remand to the trial court with instructions.



                             Facts and Procedural History
[3]   In March 17, 2013, fifteen-year-old Pecolla Crawford was walking home with

      her brother Jonte Crawford, their cousin Jordan Hendrix, and Wilson, who was

      dating Pecolla at the time. (Tr. 62-3) Hendrix was in town visiting and staying

      with Pecolla and Jonte. (Tr. 144) While the group was walking, they

      encountered fifteen-year-old Derrick Thompson, at which point Jonte and

      Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015   Page 2 of 13
      Wilson began harassing and intimidating Thompson, flashing the guns they

      were carrying, and asking Thompson what part of town he was from. (Tr. 37,

      148) Wilson was carrying a silver .357 revolver and Jonte had a black handgun.

      (Tr. 37, 149) Jonte then told Thompson to give him his phone and Wilson

      made a reference to Tre 7, a local gang, and grabbed Thompson’s Dre Beats

      headphones off of his head. (Tr. 37-40, 69) The two then left Thompson and

      continued walking with Pecolla and Jordan.


[4]   The group then encountered brothers Shaqwone Ham and Charles Wood. (Tr.

      72) Jordan, who was friends with the brothers, exchanged greetings and

      continued walking with Pecolla. (Tr. 73) Pecolla then heard Jonte and Wilson

      begin to argue with the brothers. (Tr. 73) Wilson said, “Y’all looking for me?

      I’m in your hood.” Tr. p. 153. A couple seconds later, Wilson shot Wood in

      the head. (Tr. 74, 153) As Ham attempted to run, Jonte shot him several times.

      (Tr. 153) Both Ham and Wood died as a result of their injuries. Shortly after

      the incident, police received calls from Thompson and a nearby resident who

      witnessed the shooting. (Tr. 57, 206-7) Jonte and Wilson were subsequently

      arrested and Thompson’s phone and headphones were recovered from Jonte at

      the police station. (Tr. 471-72)


[5]   Ham and Wood were members of the Dolla Boys gang, which was a subset of

      the larger Bottom Side gang. (Tr. 80, 161, 191-2) Wilson was part of several

      interrelated gangs including the Get Fresh Boys, Tre 7, and Glen Park

      Affiliated, all of which were at odds with the Bottom Side gangs. (Tr. 82, 151,

      516) Wilson had posted several gang related comments on his Twitter account

      Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015   Page 3 of 13
      including, “up for da bottom,” referring to people from Bottom Side, “Tre 7 got

      da mac[1],” “Yea ima freshboy but im riding thru da bottom,” and “Claim da

      bottom u get whacked.” State’s Exs. 13, 30, 31, 48. On March 12, 2013,

      Wilson tweeted “[If I] see a dolla he betta duck,” state’s ex. 25., and on the day

      of the murders, he tweeted, “GlenPark or get shot!!!” State’s Ex. 20.


[6]   On March 20, 2013, the State charged Wilson with two counts of murder, Class

      B felony armed robbery, and later amended the charging information to include

      Class D felony conspiracy to commit criminal gang activity. (App. 14, 20)

      Additionally, the State sought criminal gang sentencing enhancements for the

      murder and robbery charges. (App. 22)


[7]   After Wilson’s arrest and prior to trial, Wilson shared a cell with Israel Wiggins

      at the Lake County Jail. (Tr. 401) Wilson told Wiggins that he shot Ham and

      Wood because they were from Bottom Side. (Tr. 405) Wilson also told

      Wiggins that he belonged to the Get Fresh Boys gang and that he had had

      disputes on Twitter with people from the Bottom Side area of Gary. (Tr. 406-

      07) Wilson also told Wiggins that he had used a “.38 Special” in the shooting.

      Tr. p. 408. Wilson and some fellow inmates later jumped Wiggins because he

      was from the opposite side of Gary. (Tr. 409-10) After this, Wiggins was

      moved to the fourth floor of the jail where he met Jonte. (Tr. 404, 411) Jonte




      1
          Pecolla testified that “mac” meant a gun.


      Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015   Page 4 of 13
      showed Wiggins a picture of Wood lying on the ground and said, “We got

      good aim. You don’t want to end up like him.” (Tr. 412)


[8]   Wilson’s jury trial began on June 30, 2014. (App. 7) During Pecolla’s

      testimony, the State sought to introduce Wilson’s Twitter posts and Wilson

      objected, arguing that the State had not laid the proper foundation to identify

      the Twitter account as belonging to Wilson. (Tr. 85) The State argued that

      Pecolla’s testimony that the Twitter account belonged to Wilson provided

      sufficient foundation. (Tr. 85) The trial court overruled Wilson’s objection and

      permitted the Twitter messages to be introduced. (Tr. 88)


[9]   After a four-day trial, the jury found Wilson guilty of the four charged offenses.

      (App. 7-8) Upon announcing the jury’s verdict, the court immediately began

      the criminal gang activity enhancement phase of the trial. (Tr. 680) As the trial

      court was giving final instructions to the jury, there was an outburst from an

      individual in the gallery, Wilson began yelling profanities at the individual,

      struggled with the bailiffs, and was ultimately removed from the courtroom.

      (App. 707-08) The trial court found that Wilson’s outburst constituted a waiver

      of his right to be present for the second phase of the trial. (Tr. 708) The jury

      found Wilson guilty on the criminal gang activity enhancements with regards to

      his convictions for murder and armed robbery. (App. 7) The trial court

      sentenced Wilson to consecutive terms of sixty years for the first murder

      conviction, fifty-five years for the second murder conviction, six years for

      armed robbery, and two years for criminal gang activity, with an additional



      Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015   Page 5 of 13
       sixty years pursuant to the criminal gang activity enhancement for an aggregate

       sentence of 183 years. (App. 7)



                                   Discussion and Decision
[10]   Wilson raises three issues on appeal: (1) whether the State provided sufficient

       foundation to authenticate the Twitter messages; (2) whether Wilson’s

       conviction for conspiracy to commit criminal gang activity should be vacated as

       being in conflict with his criminal gang activity enhancements; and (3) whether

       the trial court properly excluded Wilson from a portion of trial.


                          I. Authentication of Twitter Account
[11]   Admission or exclusion of evidence is within the sound discretion of the trial

       court and we will reverse such a decision only if the trial court abused that

       discretion. Kindred v. State, 973 N.E.2d 1245, 1252 (Ind. Ct. App. 2012). An

       abuse of discretion occurs when the trial court’s decision is clearly against the

       logic, facts, and circumstances presented. Id. We do not reweigh evidence or

       judge the credibility of witnesses, and we consider conflicting evidence most

       favorable to the trial court’s ruling. Id.


[12]   Wilson contends that the Twitter messages were not properly authenticated as

       having been authored by him. Indiana Rules of Evidence Rule 901(a) provides

       that “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.” “Once this reasonable

       Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015   Page 6 of 13
       probability is shown, any inconclusiveness regarding the exhibit’s connection

       with the events at issue goes to the exhibit’s weight, not its admissibility.

       Additionally, authentication of an exhibit can be established by either direct or

       circumstantial evidence.” Pavlovich v. State, 6 N.E.3d 969 (Ind. Ct. App. 2014)

       trans. denied, (citing Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans.

       denied)). Letters and words set down by electronic recording and other forms of

       data compilation are included within Rule 901(a). Hape v. State, 903 N.E.2d

       977, 989 (Ind. Ct. App. 2009). “Absolute proof of authenticity is not required.”

       Fry, 885 N.E.2d at 748.


[13]   Rule 901(b) provides examples of evidence that satisfies the authentication

       requirement, including “(1) Testimony of a Witness with Knowledge. Testimony

       that an item is what it is claimed to be, by a witness with knowledge,” and “(4)

       Distinctive Characteristics and the Like. The appearance, contents, substance,

       internal patterns, or other distinctive characteristics of the item, taken together

       with all the circumstances.” 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. Hape, 903 N.E.2d at 990 (citing Lorraine v. Markel Am. Ins. Co., 241

       F.R.D. 534, 546 (D. Md. 2007)).2




       2
           The language of Federal Rule 901(b)(4) is identical to the language of Indiana’s Rule 901(b)(4).


       Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015                              Page 7 of 13
[14]   We are unaware of any cases in which an Indiana court has addressed the issue

       of authentication of social media posts. However, we addressed a similar fact

       pattern in Pavlovich which concerned the authentication of text and email

       messages where there was no direct evidence connecting the defendant to the

       phone number or email address that sent the messages at issue. 6 N.E.3d at

       976. Pavlovich had been using a “2662” phone number and an email address

       to attempt to solicit sex from a minor. Id. Neither the email address nor the

       2662 number were associated with Pavlovich’s name or address. Id. However,

       a witness testified that she was familiar with Pavlovich and had previously

       communicated with him at the 2662 number and email address, and the content

       of the communication between her and Pavlovich corroborated her

       identification of Pavlovich as the sender of the messages. Id. at 979.

       Additionally, the user of the email address stated that he was staying at a

       Marriott on the north side of Indianapolis and a detective confirmed that

       Pavlovich was registered at a Marriott on the north side of Indianapolis where

       he was subsequently apprehended. Id. at 978. The texts also indicated that the

       user of the number did not live in central Indiana but traveled there frequently.

       Id. at 979. We concluded that the circumstantial evidence was sufficient to

       authenticate the text and email messages as being authored by Pavlovich. Id. at

       978.


[15]   In the instant case, Pecolla testified that she often communicated with Wilson

       on Twitter and that he had posted pictures of the two online. (Tr. 83) She then

       identified the Twitter account at issue as belonging to Wilson based on her


       Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015   Page 8 of 13
       general knowledge of the account by its name “@Nell_FearNoMan” and the

       header of the account. Additionally, there were pictures posted from the

       account which depict Wilson holding guns that match the description of those

       used in the crimes. (State’s Ex. 15, 16) Pecolla testified that Wilson lived in

       Glen Park and was a member of the Glen Park gang, that Wilson was affiliated

       with the Get Fresh Boys and Tre 7 gangs, and that he would often use the terms

       “GFB,” “Get Fresh Boys,” and “Tre 7” on the internet. Tr. p. 82. The

       @Nell_FearNoMan Twitter account frequently used those same terms and

       revealed a clear affiliation with those groups.


[16]   Consequently, we think 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.


                      II. Criminal Gang Activity Enhancement
[17]   Article I, Section 14 of the Indiana Constitution provides in part: “no person

       shall be put in jeopardy twice for the same offense.” Wilson was convicted of

       Class D felony conspiracy to commit criminal gang activity under Indiana

       Code section 35-45-9-3 and received criminal gang enhancements under

       Indiana Code section 35-50-2-15. However, Section 35-50-2-15(a) states that

       “This section does not apply to an individual who is convicted of a felony

       offense under IC 35-45-9-3.” Therefore, it was impermissible for Wilson to be




       Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015   Page 9 of 13
       convicted under Section 35-45-9-3 and simultaneously receive an enhanced

       sentence under Section 35-50-2-15. The State concedes this point.


[18]   The Indiana Supreme Court has held that when two convictions are found to

       violate double jeopardy principles, it is appropriate for the reviewing court to

       “vacate the conviction with the less severe penal consequences and leave

       standing the [remaining] conviction.” Richardson v. State, 717 N.E.2d 32, 55

       (Ind. 1999). Accordingly, we remand with instructions that the trial court

       vacate Wilson’s conviction for Class D felony conspiracy to commit criminal

       gang activity and leave standing the remaining enhanced sentences.


                             III. Wilson’s Exclusion from Trial
[19]   The Sixth Amendment to the United States Constitution and Article I, Section

       13 of the Indiana Constitution grant a defendant in a criminal proceeding the

       right to be present at his or her own trial. See Campbell v. State, 732 N.E.2d 197,

       204 (Ind. Ct. App. 2000). However, this right, under either the United States or

       Indiana Constitutions, may be waived if such waiver is made knowingly and

       voluntarily. Id. Both this court and the United States Supreme Court have held

       that significantly contemptuous conduct by a defendant can function as a

       knowing and voluntary waiver of their right to be present. Id.; Illinois v. Allen,

       397 U.S. 337, 343, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970).

[20]           It is essential to the proper administration of criminal justice that
               dignity, order, and decorum be the hallmarks of all court proceedings
               in our country. The flagrant disregard in the courtroom of elementary
               standards of proper conduct should not and cannot be tolerated. We
               believe trial judges confronted with disruptive, contumacious, stubbornly

       Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015      Page 10 of 13
               defiant defendants must be given sufficient discretion to meet the circumstances
               of each case.
                                                         ***
               The trial court in this case decided under the circumstances to remove
               the defendant from the courtroom and to continue his trial in his
               absence until and unless he promised to conduct himself in a manner
               befitting an American courtroom. As we said earlier, we find nothing
               unconstitutional about this procedure.
       Allen, 397 U.S. at 343, 345-46 (emphasis added). We review the decision to

       exclude Wilson for an abuse of discretion. Id.; see also Campbell v. State, 732

       N.E.2d at 206. An abuse of discretion occurs when the trial court’s decision is

       clearly against the logic, facts, and circumstances presented. Kindred, 973

       N.E.2d at 1252. We do not reweigh evidence. Id.


[21]   Following closing arguments during the enhancement phase of the trial, an

       outburst occurred between Wilson and members of the gallery.

               Court: For the record, we – during that small outburst starting with
               those in the audience, Mr. Wilson also had an outburst, he struggled
               with my bailiffs, he yelled out a few words of profanity, directed those
               to members of the audience. He’s been escorted out. He is – I think
               he at this point, he has waived his right, his opportunity to be here
               during this phase of the trial. We will proceed without him given his
               conduct at this point.
       Tr. p. 708. After the outburst, the trial court held a hearing on whether Wilson

       should be held contempt. Wilson then engaged in the following exchange with

       the court:

               Court: Mr. Wilson, you had quite an incredible outburst just
               now….I’ll give you one opportunity to try to explain yourself before I
               decide whether I should hold you in contempt of court.
                                                         ***
       Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015             Page 11 of 13
               Wilson: Well, seeing they (inaudible.) Y’all don’t see that, though, do
               y’all? Y’all don’t see that, though, right? I got nothing to say. Charge
               me with what you want.
               Court: All right. I hold you in contempt.
               Wilson: That’s cool. Shake your hand for it?
               Court: Pardon me?
               Wilson: F*** a appeal.
               Court: Oh, no, no, no. I hold you in contempt….I think you forfeited
               your right to be a part of this case, for this last phase of the trial.
               Wilson: That’s cool, too. Send me back. I’m tired. I need to sleep.
       Tr. p. 711-12. The trial court allowed Wilson to return for the sentencing

       hearing after he agreed to and did write a letter of apology.


[22]   Wilson argues that the trial court’s decision to exclude him from trial was

       erroneous because the trial court did not first warn Wilson that he could be

       removed for being disruptive and instead removed him immediately following

       his first and only outburst. Wilson cites to Perry and Allen where the defendants

       were disruptive several times throughout trial and were first warned before they

       were ultimately removed from the courtroom. Perry v. State, 471 N.E.2d 270,

       275 (Ind. 1984); Allen, 397 U.S. at 340.


[23]   We find that the trial court was within its discretion to remove Wilson from the

       courtroom. Unlike the cases cited above, Wilson not only used profanity and

       generally disrupted the proceedings, but also became physical with the bailiffs.

       Furthermore, he continued to exhibit contumacious behavior in the contempt

       hearing, used profanity directed at the court, and agreed with the trial court’s

       decision to exclude him from the trial. These actions amount to a waiver of


       Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015     Page 12 of 13
       Wilson’s sixth amendment and Article I, Section 13 rights. Accordingly, the

       trial court did not abuse its discretion by excluding Wilson from a portion of the

       trial.


[24]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded to the trial court with instructions that Wilson’s conviction for Class

       D felony conspiracy to commit criminal gang activity be vacated and the

       remaining aggregate 181-year sentence be imposed as is.


       Vaidik, C.J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1409-CR-317 | [April 30, 2015   Page 13 of 13
