                                                                  FILED
                                                             Feb 22 2017, 5:35 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Donald R. Shuler                                           Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                         Attorney General of Indiana
Goshen, Indiana
                                                           Monika Prekopa Talbot
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Ashley N. McFall,                                          February 22, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           20A03-1602-CR-267
        v.                                                 Appeal from the Elkhart Superior
                                                           Court
State of Indiana,                                          The Honorable Teresa L. Cataldo,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           20D03-1310-FA-57



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017              Page 1 of 15
                                           Case Summary
[1]   Ashley N. McFall was convicted of Class A felony dealing in

      methamphetamine (manufacturing) based in part on videos that a man took of

      her using his personal cell phone and then showed to a detective. The man,

      however, did not testify at trial.

[2]   In order to authenticate videos under the “silent-witness theory,” there must be

      evidence describing the process or system that produced the videos and showing

      that the video is an accurate representation of the events in question. See Ind.

      Evidence Rule 901(b)(9). Here, however, when the videos were admitted into

      evidence at trial during the detective’s testimony, there was no showing that the

      videos had not been altered before they were shown to the detective. However,

      we find that any error in the admission of the videos under the silent-witness

      theory was rendered harmless by McFall’s subsequent testimony.

[3]   McFall also contends that the evidence is insufficient to support her conviction

      and that her forty-year sentence is inappropriate. While we find that the

      evidence is sufficient to support her conviction, we revise her sentence to the

      advisory term of thirty years given that this is McFall’s first felony conviction

      and the progress that she has made since her arrest to overcome her addiction

      and get her life in order.




      Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017   Page 2 of 15
                             Facts and Procedural History
[4]   In October 2013, McFall rented a room in David Rojics’ “drug house” on

      Center Street in Elkhart. Tr. p. 353. The rent was $10 a day. McFall told an

      acquaintance, Renee Crowder, about her living arrangements. Crowder was

      looking for a place to live, so she and her two young children moved into the

      house as well. The house had two bedrooms upstairs; McFall lived in one and

      Crowder and her children lived in the other. There were also two bedrooms in

      the basement: Rojics lived in one, and Terry Hess lived in the other.

[5]   On October 13, 2013, Elkhart Police Department Officer Jason Reed was

      dispatched to the house on a report of methamphetamine activity. Crowder

      answered the front door; her children were nearby. Crowder told Officer Reed

      that Rojics and Hess were in the basement. After Crowder summoned Rojics

      and Hess to the front door, Officer Reed told them that he was there to

      investigate methamphetamine activity and asked for permission to look around.

      Officer Reed’s initial walk-through revealed the presence of methamphetamine

      precursors as well as syringes and burnt tinfoil. Because of the presence of these

      items, Officer Reed decided to perform a more intensive search of the house.

      Officer Reed presented Rojics, Crowder, and Hess with a “Search Waiver

      Form”; all three adults consented to a more thorough search of the house. Id.

      at 345.

[6]   By this time, more officers had arrived on the scene. The officers started

      searching the detached garage, where they found indicators of an active meth


      Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017   Page 3 of 15
      lab. Because of the dangers associated with methamphetamine fumes, the

      officers decided to clear everyone from the house.

[7]   While Officer Reed was still clearing the house, McFall showed up. She told

      Officer Reed that she had been living in an upstairs bedroom for a couple of

      weeks and that she did not want them searching her room. The officers stopped

      searching and sought a search warrant for the house.

[8]   After a search warrant was obtained, Indiana State Police Clandestine Lab

      Officer Gretchen Smith searched the house. In McFall’s bedroom, Officer

      Smith found numerous items associated with the manufacture and ingestion of

      methamphetamine, such as two containers of Coleman fuel, Drano, a coffee

      grinder with a white-powder residue, cold packs, coffee filters, a funnel,

      baggies, sulfuric acid, Crystal Drain Opener, aluminum foil with burn residue,

      empty pseudoephedrine blister packs, a pair of pliers (which are used to strip

      lithium from batteries), syringes, and a pen (which is used to inhale

      methamphetamine). In a storage area between McFall’s and Crowder’s

      bedrooms, Officer Smith found a Faygo bottle that was being used in the

      methamphetamine-manufacturing process. Id. at 450-51. In the detached

      garage, Officer Smith found several items on or near a workbench: a

      reactionary vessel, more Coleman fuel, and coffee filters. Id. at 459; see also Ex.

      23 (photo of workbench).

[9]   The next day, October 14, a man named “Javier” came to the Elkhart Police

      Department and asked to speak to an officer from the drug unit. See, e.g., Tr. p.


      Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017   Page 4 of 15
       754 (defense counsel’s closing argument identifying Javier by name). Detective

       Andrew Whitmyer, who was working on the case, talked to him. Javier, whom

       Detective Whitmyer did not know, showed Detective Whitmyer two videos,

       each a few seconds long, on his personal cell phone. One of the videos shows

       McFall, on the evening of October 12, sitting at the workbench in the detached

       garage on Center Street manipulating some tubing that is consistent with

       making methamphetamine. See id. at 565-66. The other video shows McFall

       sitting at the workbench messing with her hair. Detective Whitmyer asked for

       Javier’s identification, went over his background, and discussed his relationship

       with McFall. Because Javier gave several pieces of information that Detective

       Whitmyer knew to be true and thought could be useful to the drug unit,

       Detective Whitmyer planned to use Javier as a Confidential Source (“CS”) in

       other cases. Detective Whitmyer then took Javier’s phone, plugged it into a

       computer at the police department, and copied the videos to a DVD. Detective

       Whitmyer also made two still photos from the videos. Javier then left the

       police department with his cell phone. Detective Whitmyer did not list Javier’s

       name in any police reports in the case.

[10]   Thereafter, McFall was arrested and charged with one count: Class A felony

       dealing in methamphetamine (manufacturing) within 1000 feet of a youth-

       program center. Ind. Code Ann. § 35-48-4-1.1 (West 2012); Appellant’s App.

       Vol. II p. 19. Among other people, the State listed “CS,” but not Javier, on its

       witness list for trial. Appellant’s App. Vol. II p. 46 (Amended Witness List).




       Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017   Page 5 of 15
[11]   At the jury trial, Detective Whitmyer testified that the CS never ended up

       working for the Elkhart Police Department, which is common. Tr. p. 594. The

       CS did not testify at trial either. By this time, however, defense counsel had

       already figured out that the CS was Javier.1 The State introduced the videos

       (Exhibit 27) and two still photos (Exhibits 28 & 29) through Detective

       Whitmyer. The videos and still photos have date and time stamps. They are all

       dated October 12; Exhibit 28 has a timestamp of 6:25 p.m. while Exhibit 29 has

       a timestamp of 6:42 p.m. McFall objected to the admission of the videos and

       photos; the trial court admitted them over her objection pursuant to Evidence

       Rule 901 and the silent-witness theory. Id. at 526-29. McFall then testified in

       her own defense. Specifically, McFall testified that on October 12, she and

       Javier, with whom she had an “unhealthy relationship,” id. at 666, were in the

       detached garage at Center Street. She was sitting at the workbench and Javier

       was sitting behind her. She specifically identified herself in the photos and

       videos and identified items in the photos and videos. See, e.g., id. at 663-65,

       698-99. In addition, she acknowledged that methamphetamine was being

       manufactured at the time the videos were taken; however, she claimed that

       Javier was the “cook” and that she was simply a meth addict who lived in a

       drug house. Finally, she denied that many of the items found in her bedroom

       were hers.




       1
        Neither the State nor defense counsel could locate Javier before trial. Tr. p. 521-22. They suspected that he
       had left the state.

       Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017                       Page 6 of 15
[12]   The jury found McFall guilty as charged. At the sentencing hearing, the trial

       court found the following aggravators: McFall has a criminal history (no

       felonies but misdemeanors for operating a motor vehicle without ever receiving

       a license (two), minor consumption of alcohol, and possession of marijuana);

       she has a history of abusing alcohol and drugs; children lived in the house on

       Center Street; she did not take advantage of addictions evaluation/treatment

       that was available to her through a previous conviction; and she has not taken

       responsibility for her own children. The court then identified the following

       mitigators: McFall “has done some things [while in jail] to better her situation”;

       she has family in place that is willing to help her; she exhibited remorse in the

       courtroom; and people provided statements in support of her. Appellant’s App.

       Vol. II p. 132. Concluding that the aggravators outweighed the mitigators, the

       trial court sentenced McFall to forty years. The court ordered McFall to serve

       the “first ten (10) years . . . executed at the [DOC].” Id. at 133. After the first

       ten-year portion of the sentence, the court ordered McFall to serve “the next

       twenty (20) years as a participant in the Elkhart County [Community]

       Corrections Home Detention Program.” Id. The court ordered “the final ten

       (10) years of her sentence suspended” to reporting probation. Id.


[13]   McFall now appeals.



                                   Discussion and Decision
[14]   McFall raises three issues on appeal. First, she contends that the trial court

       erred in admitting into evidence the cell-phone videos and still photos made

       Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017   Page 7 of 15
       from the videos because they were not properly authenticated. Second, she

       contends that the evidence, even with the videos and photos, is insufficient to

       support her conviction. Last, she contends that her sentence is inappropriate.


                   I. Admission of Cell-Phone Videos and Photos
[15]   McFall first contends that the trial court erred in admitting into evidence the

       cell-phone videos and still photos made from the videos. She argues that they

       were not properly authenticated because Javier, the CS, did not testify at trial.

       The State responds that the videos and photos were properly authenticated

       under the silent-witness theory.


[16]   Indiana Evidence Rule 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.” Photographs and videos can be authenticated through either a

       witness’s testimony or, in instances in which no witness observed what a

       photograph or video portrays, the silent-witness theory. 13 Robert L. Miller,

       Jr., Indiana Practice, Indiana Evidence § 901.209 (4th ed. 2016). Here, because

       Javier did not testify at trial, the State sought to authenticate the videos and

       photos using the silent-witness theory. See Mays v. State, 907 N.E.2d 128 (Ind.

       Ct. App. 2009) (although the confidential informant (“CI”) did not testify at

       trial, the digital audio/video recording of the controlled buy was admitted into

       evidence through the detective pursuant to the silent-witness theory), trans.

       denied.


       Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017   Page 8 of 15
[17]   In order to authenticate videos or photographs using the silent-witness theory,

       there must be evidence describing the process or system that produced the

       videos or photographs and showing that the process or system produced an

       accurate result. See Ind. Evidence Rule 901(b)(9). The requirements are “rather

       strict.” 13 Miller at § 901.209. That is, the proponent must show that the

       photograph or video was not altered in any significant respect, and the date the

       photograph or video was taken must be established when relevant. Id.; see also

       Wise v. State, 26 N.E.3d 137, 141 (Ind. Ct. App. 2015) (noting that when

       automatic cameras are involved, “there should be evidence as to how and when

       the camera was loaded, how frequently the camera was activated, when the

       photographs were taken, and the processing and changing of custody of the film

       after its removal from the camera.” (quotation omitted)), trans. denied. If a

       foundational requirement is missing, then the surrounding circumstances can be

       used. 13 Miller at § 901.209 (“Rule 901(b)(9) requires only that the process or

       system be described in such a way as to allow the trier of fact to find that it is

       more likely than not that the system produced an accurate result.”).


[18]   Here, the State introduced videos that Javier allegedly took on his personal cell

       phone on October 12 through Detective Whitmyer. There was no showing,

       however, that the videos had not been altered in any significant respect before

       Javier showed up at the police station on October 14 and asked to speak to a

       member of the drug unit. This is unlike the typical CI case, where the CI

       records an event and the police then introduce the recording into evidence at

       trial because the CI does not testify. In those cases, the police use their own


       Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017   Page 9 of 15
       recording equipment and remove the equipment from the CI when the event is

       over. See Mays, 907 N.E.2d at 132 (although the CI did not testify at trial, the

       recording of the controlled buy was admitted under the silent-witness theory;

       the detective testified that he personally prepared the audio/video recording

       equipment and then removed the equipment from the CI immediately after the

       controlled buy). Here, however, Detective Whitmyer exercised no control over

       the process used to record McFall and could not attest to the accuracy of the

       videos. Accordingly, the videos and photos were not properly authenticated

       when the trial court admitted them during Detective Whitmyer’s testimony.

[19]   However, we are not restricted solely to the circumstances presented to the trial

       court at the time of the ruling. Dausch v. State, 616 N.E.2d 13, 17 (Ind. 1993).

       A questionable foundation for the admissibility of evidence may be cured by

       later testimony. Id. On direct and cross exam, McFall identified herself in the

       videos and photos and acknowledged that the events depicted in them occurred

       on October 12. See, e.g., Tr. p. 660, 663-65, 698-99. Accordingly, any error in

       the admission of the videos and photos under the silent-witness theory was

       rendered harmless by McFall’s subsequent testimony. See Dausch, 616 N.E.2d

       at 17.


                                II. Sufficiency of the Evidence
[20]   McFall next contends that the evidence is insufficient to support her conviction

       for Class A felony dealing in methamphetamine. Sufficiency-of-the-evidence

       claims face a steep standard of review: we consider only the evidence and


       Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017   Page 10 of 15
       reasonable inferences most favorable to the convictions, neither reweighing

       evidence nor assessing witness credibility. Griffith v. State, 59 N.E.3d 947, 958

       (Ind. 2016). We affirm the judgment unless no reasonable factfinder could find

       the defendant guilty. Id.


[21]   In order to convict McFall as charged here, the State had to prove that McFall

       knowingly manufactured2 methamphetamine, pure or adulterated, within 1000

       feet of a youth-program center. Appellant’s App. Vol. II p. 19; Ind. Code Ann.

       § 35-48-4-1.1 (West 2012).3 McFall concedes that “throughout the house on . . .

       Center Street, including [her] room . . . and the garage, there were various items

       and precursors that are used in the manufacture of methamphetamine, and that

       active pots were found in the upstairs closet and the garage.” Appellant’s Br. p.

       26. However, McFall points out that many of these items were “also consistent

       with someone who was using methamphetamine, and [McFall] openly

       admitted she was addicted at the time.” Id. Accordingly, she argues that the

       evidence is insufficient to prove beyond a reasonable doubt that she “was

       involved beyond merely using methamphetamine.” Id.


[22]   In McFall’s bedroom, Officer Smith found numerous items associated with the

       manufacture and ingestion of methamphetamine, such as two containers of

       Coleman fuel, Drano, a coffee grinder with a white-powder residue, cold packs,




       2
           See Ind. Code § 35-48-1-18 (defining “manufacture”).
       3
           McFall does not dispute that the house on Center Street was within 1000 feet of a youth-program center.


       Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017                      Page 11 of 15
       coffee filters, a funnel, baggies, sulfuric acid, Crystal Drain Opener, aluminum

       foil with burn residue, empty pseudoephedrine blister packs, a pair of pliers

       (which are used to strip lithium from batteries), syringes, and a pen (which is

       used to inhale methamphetamine). Officer Smith testified that except for the

       syringes, pen, and foil, the other items were specifically associated with

       manufacturing methamphetamine. Tr. p. 438-47. In addition, in a storage area

       between McFall’s and Crowder’s bedrooms, Officer Smith found a Faygo bottle

       that was being used in the methamphetamine-manufacturing process. This pop

       bottle, easily accessible to McFall and coupled with the items found in her

       bedroom, is a very strong indicator that she was manufacturing

       methamphetamine. Finally, McFall identified herself in the videos and still

       photos and admitted that methamphetamine was being manufactured at the

       time. Although McFall claimed that Javier was the cook and that she was just

       an addict, the jury was entitled to believe otherwise. We therefore find that the

       evidence is sufficient to support McFall’s conviction for Class A felony dealing

       in methamphetamine.


                                   III. Inappropriate Sentence
[23]   Last, McFall contends that her forty-year sentence—with ten years executed in

       the DOC, twenty years of home detention, and ten years suspended to

       probation—is inappropriate. She asks us to reduce the executed portion of her

       sentence. See Appellant’s Br. p. 33. The Indiana Constitution authorizes

       independent appellate review and revision of a trial court’s sentencing decision.

       Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). We implement this authority

       Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017   Page 12 of 15
       through Indiana Appellate Rule 7(B), which provides that we may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, we find the sentence is inappropriate in light of the nature of the

       offense and the character of the offender. Id. McFall bears the burden on

       appeal of establishing that her sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).

[24]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). Whether a sentence is inappropriate ultimately turns on the culpability

       of the defendant, the severity of the crime, the damage done to others, and a

       myriad of other factors that come to light in a given case. Id. at 1224. In

       assessing whether a sentence is inappropriate, appellate courts may take into

       account whether a portion of the sentence is ordered suspended or is otherwise

       crafted using any of the variety of sentencing tools available to the trial judge.

       Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). These tools include

       probation, home detention, placement in a community-corrections program,

       and executed time in a DOC facility. Id.




       Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017   Page 13 of 15
[25]   Here, McFall’s offense was elevated to a Class A felony because it occurred

       within 1000 feet of a youth-program center.4 At the time of the offense, the

       sentencing range for a Class A felony was between twenty and fifty years, with

       an advisory sentence of thirty years. Ind. Code § 35-50-2-4. The trial court

       sentenced her to an above-advisory term of forty years.

[26]   As for the nature of the offense, McFall manufactured methamphetamine in a

       drug house in which a housemate’s children also lived.

[27]   As for McFall’s character, her limited criminal history reflects that she is not a

       professional drug dealer or manufacturer but rather an addict who moved into a

       drug house because it gave her easier access to methamphetamine. At age

       twenty-seven, this is her first felony conviction. As the trial court

       acknowledged, McFall, after having spent two-and-a-half years in jail,

       expressed remorse at sentencing. McFall was “grateful” for her sobriety and

       the knowledge that she had gained while in jail. Tr. p. 805. Also as the trial

       court acknowledged, several people testified and submitted letters on her behalf.

       For example, McFall’s creative-writing teacher explained “how far [McFall]

       ha[d] come in her effort to rebuild her life” while in jail. Appellant’s App. Vol.

       II p. 130. Her GED teacher also submitted a letter describing how much

       McFall had “impressed” her. Id. at 131. In addition, McFall had secured a job

       for home detention. Id. at 129. Finally, McFall’s father submitted a letter in



       4
        This is no longer an enhancing circumstance under the amended sentencing statutes. See Ind. Code Ann. §
       35-48-1-16.5 (West Supp. 2016).

       Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017                 Page 14 of 15
       which he opined that McFall’s arrest for this crime was the only thing that

       could have saved her from her addiction. Id. at 128. Indeed, the State

       recognizes on appeal that it is “commendable that [McFall] has made positive

       changes in her life since she has been incarcerated.” Appellee’s Br. p. 25.

[28]   Given that this is McFall’s first felony conviction and the progress that she has

       made since her arrest to overcome her addiction and get her life in order, we

       believe that an above-advisory sentence is inappropriate. We therefore revise

       McFall’s sentence to the advisory term of thirty years, with fourteen years

       executed and sixteen years suspended (with two of those suspended years to be

       served on probation). Of the executed time, McFall must serve ten years in the

       DOC and four years on home detention. All portions of her sentence should

       include substance-abuse treatment as needed.


[29]   Affirmed in part, reversed in part.

       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1602-CR-267 | February 22, 2017   Page 15 of 15
