                                                                           FILED
                                                                      Dec 22 2016, 9:06 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                        Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
Madison, Indiana
                                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

M.T.V.,                                                   December 22, 2016
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          36A05-1607-JV-1681
        v.                                                Appeal from the Jackson Superior
                                                          Court
State of Indiana,                                         The Honorable Bruce A.
Appellee-Petitioner.                                      MacTavish, Judge
                                                          Trial Court Cause No.
                                                          36D02-1602-JD-9



Bailey, Judge.




Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016                   Page 1 of 14
                                           Case Summary
[1]   M.T.V. appeals his adjudication of delinquency for Conspiracy to Commit

      Aggravated Battery, a Level 3 felony if committed by an adult.1 We affirm.



                                                     Issues
[2]   M.T.V. raises the following restated issues:


                 I.       Whether the trial court abused its discretion when it:


                          A. Determined there was a sufficient foundation to admit
                             records of M.T.V.’s Facebook conversations, and


                          B. Admitted statements made by M.T.V.’s coconspirator
                             in those Facebook conversations; and


                 II.      Whether the evidence is sufficient to support M.T.V.’s
                          adjudication.


                                Facts and Procedural History
[3]   On January 13, 2016, when M.T.V. was sitting at a Seymour High School

      cafeteria table, M.T.V. stated that he and another student, B.E., were going to

      bring guns into the school on April 20, 2018. M.T.V. said that the date was the

      same day as the Columbine shooting. M.T.V. also said that he and B.E. had a




      1
          Ind. Code § 35-42-2-1.5.



      Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 2 of 14
      list and that a student, J.R., was first on the list. Another student at the lunch

      table reported M.T.V.’s statements to counselors and an investigation ensued.

      During the investigation, the Seymour Police Department (“SPD”) obtained

      records from Facebook containing conversations between M.T.V. and B.E.


[4]   On February 16, 2016, the State filed a delinquency petition alleging that

      M.T.V. committed an act that would be Conspiracy to Commit Murder if

      committed by an adult. The State later amended the petition, adding

      allegations of Conspiracy to Commit Aggravated Battery and Conspiracy to

      Commit Possession of Firearm on School Property.


[5]   During a fact-finding hearing on May 20, 2016, the State sought to admit the

      Facebook conversations into evidence. M.T.V. objected, arguing that the

      Facebook records were not properly authenticated and that the conversations

      contained inadmissible hearsay. After hearing argument from M.T.V. and the

      State, the trial court admitted the conversations. When the hearing concluded,

      the juvenile court took the matter under advisement, and later entered a true

      finding for only one allegation, Conspiracy to Commit Aggravated Battery.


[6]   M.T.V. now appeals.



                                 Discussion and Decision
                                     Admission of Evidence
[7]   Although juvenile delinquency hearings are civil in nature, a formal fact-finding

      hearing is analogous to a criminal trial and the rules of evidence apply to the

      Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 3 of 14
      same extent as in a criminal case. N.L. v. State, 989 N.E.2d 773, 779 (Ind.

      2013). A trial court has broad discretion to rule on the admissibility of

      evidence. Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). We review rulings

      on the admissibility of evidence “for abuse of that discretion and reverse only

      when admission is clearly against the logic and effect of the facts and

      circumstances and the error affects a party’s substantial rights.” Guilmette v.

      State, 14 N.E.3d 38, 40-41 (Ind. 2014).


                       A.       Authentication of Facebook Records
[8]   Here, M.T.V. argues that the juvenile court abused its discretion in admitting

      copies of the Facebook conversations between M.T.V. and B.E.2 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.” Ind. Evidence Rule 901(a). Absolute proof of authenticity is not

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

      denied. Rather, the proponent of the evidence must establish only a reasonable

      probability that the evidence is what it is claimed to be, and may use direct or

      circumstantial evidence to do so. Id. Once this reasonable probability is

      shown, any inconclusiveness of the evidence’s connection with the events at




      2
       One of M.T.V.’s arguments focuses on whether the Facebook conversations warranted admission as
      business records under Indiana Evidence Rule 803(6). Finding another basis for the proper admission of the
      conversations, we need not reach this issue.



      Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016                   Page 4 of 14
       issue goes to evidential weight, not admissibility. Fry v. State, 885 N.E.2d 742,

       748 (Ind. Ct. App. 2008), trans. denied.


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

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

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

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

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

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

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

       together with all the circumstances, the evidence has distinctive characteristics

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

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

       previously acknowledged that federal courts have recognized Federal Rule of

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

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

       1268 (citing Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009)); see, e.g.,

       United States v. Lewisbey, No. 14-2236, slip op. at 5-7 (7th Cir. Dec. 9, 2016)

       (looking to Federal Rule of Evidence 901(b)(4) when concluding that certain

       text messages and Facebook posts were properly authenticated).


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

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

       30 N.E.3d at 1268. There, a witness testified that she often communicated with

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

       Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 5 of 14
       “@Nell_FearNoMan” header. Id. at 1268-69. The contents of the account

       records included pictures depicting Wilson holding guns that matched the

       description of those used in the crime. Id. at 1269. Moreover, there was

       testimony that Wilson was affiliated with two gangs, and the

       @Nell_FearNoMan Twitter account frequently used terms referring to those

       gangs, showing that the author of the messages was affiliated with them. Id.

       We concluded that “taken together, the witness testimony identifying the

       Twitter account as belonging to Wilson and the content posted on the account,

       including pictures and gang references, are more than sufficient to authenticate

       the Twitter posts as being authored by Wilson.” Id.


[11]   Here, in an interview with law enforcement, M.T.V. admitted to having

       Facebook conversations with B.E. and said that, in those conversations, B.E.

       made threats to shoot up the school on April 20, 2018. M.T.V. also said that

       B.E. asked M.T.V. for help conducting the shooting. The Facebook records

       introduced at the hearing contain the content M.T.V. said they would.

       Moreover, in addition to having distinctive characteristics in content, the

       Facebook records were also supported by an affidavit from Facebook’s

       authorized records custodian, Kelsey McIntosh (“McIntosh”). The sworn

       affidavit specified, inter alia, that the records were made and kept by Facebook’s

       automated systems and were made at or near the time the Facebook user

       transmitted the information. At the hearing, Detective Foster testified that the

       procedure he used to obtain the Facebook records was an ordinary procedure

       that he had previously used for criminal investigations involving Facebook.


       Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 6 of 14
[12]   We conclude that, collectively, the State established the requisite reasonable

       probability that the Facebook records corresponded to M.T.V.’s and B.E.’s

       accounts and that M.T.V. and B.E. authored the conversations therein.

       Therefore, the juvenile court did not abuse its discretion with respect to

       authentication. Our review does not end here, however, because the content of

       the authenticated conversations must also be admissible.


                    B.       Admission of Coconspirator’s Statements
[13]   M.T.V. argues that the Facebook conversations contain inadmissible hearsay.

       Ordinarily, hearsay is any statement made out of court and offered to prove the

       truth of the matter asserted. Evid. R. 801(c). Evidence Rule 801(d), however,

       specifies that certain statements that would otherwise constitute hearsay are, by

       rule, not hearsay at all. For example, an opposing party’s statement is not

       hearsay. Evid. R. 801(d)(2). This is so when the opposing party is himself

       making the statement. Evid. R. 801(d)(2)(A). It is also the case when an

       opposing party’s coconspirator is making the statement. Evid. R. 801(d)(2)(E).

       Importantly, however, to be admissible under this rule, the coconspirator’s

       statement must be made in furtherance of the conspiracy. Furthermore, the

       coconspirator’s “statement does not by itself establish … the existence of the

       conspiracy ….” Id. Rather, the State must introduce “independent evidence”

       of the conspiracy before a coconspirator’s statement will be admissible as non-

       hearsay. Lander v. State, 762 N.E.2d 1208, 1213 (Ind. 2002).


[14]   M.T.V. does not argue that his own statements were inadmissible. Rather,

       M.T.V. argues that B.E.’s statements were inadmissible because the State failed

       Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 7 of 14
       to introduce independent evidence of a conspiracy, and instead relied solely on

       B.E.’s statements in the Facebook records. The evidence favorable to the

       adjudication, however, included testimony from the student at M.T.V.’s lunch

       table. The student heard M.T.V. say that he and B.E. planned to bring guns

       into the school, that they had a list, and J.R. was first on their list. Moreover,

       M.T.V.’s side of the Facebook conversations constituted evidence as well.

       Here, the independent evidence is sufficient to establish the existence of

       conspiracy between M.T.V. and B.E. for the purposes of Evidence Rule 801(d).

       See Mayhew v. State, 537 N.E.2d 1188, 1190-91 (Ind. 1989) (finding statements

       made by a coconspirator admissible where a witness testified that the defendant

       told her about the conspiracy). Therefore, the juvenile court did not abuse its

       discretion in admitting B.E.’s statements.


                                   Sufficiency of the Evidence
[15]   M.T.V. argues that the evidence is insufficient to support his delinquency

       adjudication. In a juvenile delinquency adjudication proceeding, the State must

       prove every element of the offense beyond a reasonable doubt. A.B. v. State, 885

       N.E.2d 1223, 1226 (Ind. 2008). When reviewing the sufficiency of the

       evidence, we do not reweigh the evidence or judge the credibility of witnesses.

       Al-Saud v. State, 658 N.E.2d 907, 909 (Ind. 1995). Rather, we consider only the

       evidence and reasonable inferences most favorable to the adjudication. Id. We

       affirm if the evidence and those inferences constitute substantial evidence of

       probative value to support the adjudication. A.B., 885 N.E.2d at 1226.




       Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 8 of 14
[16]   Here, M.T.V. was adjudicated a delinquent for Conspiracy to Commit

       Aggravated Battery, a Level 3 felony if committed by an adult. The statute

       defining Aggravated Battery provides that a “person who knowingly or

       intentionally inflicts injury on a person that creates a substantial risk of death …

       commits aggravated battery, a Level 3 felony.” I.C. § 35-42-2-1.5. Moreover, a

       person “conspires to commit a felony when, with intent to commit the felony,

       the person agrees with another person to commit the felony.” I.C. § 35-41-5-

       2(a). The State “must allege and prove that either the person or the person with

       whom he or she agreed performed an overt act in furtherance of the

       agreement.” I.C. § 35-41-5-2(b). In other words, to prove the conspiracy aspect

       of the State’s allegations, the State had to prove that M.T.V. and B.E. formed

       an agreement to commit the crime and that one of them took an overt act in

       furtherance of that agreement. I.C. § 35-41-5-2.


[17]   To prove the existence of a conspiratorial agreement, “it is not necessary to

       present direct evidence of a formal express agreement between conspirators.”

       Chambers v. State, 526 N.E.2d 1176, 1178 (Ind. 1988). Rather, “[s]uch intent

       may be inferred from circumstantial evidence alone, including overt acts of the

       parties in pursuance of the criminal act.” Id. As to the overt act, it “need not

       rise to the level of a ‘substantial step’ required for an attempt to commit the

       felony.’” Owens v. State, 929 N.E.2d 754, 756-57 (Ind. 2010) (quoting the

       attempt statute, I.C. § 35-41-5-1). Indeed, whereas a substantial step must be an

       act beyond mere preparation, there is no such requirement for an overt act.

       Conn v. State, 948 N.E.2d 849, 854 (Ind. Ct. App. 2011) (finding that surveilling



       Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 9 of 14
       the victim’s home at the request of the coconspirator was an overt act); see

       Dickenson v. State, 835 N.E.2d 542, 552-53 (Ind. Ct. App. 2005) (finding that

       helping to “prepare a letter concerning the details” of an agreement to commit

       murder was a valid overt act), trans. denied. Ultimately, “[t]he crime of

       conspiracy is complete upon the agreement and the performance of an overt act

       in furtherance of the agreement.” Smith v. State, 655 N.E.2d 532, 540 (Ind. Ct.

       App. 1995), trans. denied. Thus, the length of time between the overt act and

       commission of the underlying felony, if ever committed or attempted, is “of no

       significance to the elements of the crime [of conspiracy] itself.” Id.


[18]   Here, the State alleged that M.T.V. committed Conspiracy to Commit

       Aggravated Battery between October 31, 2015 and January 15, 2016, and that

       M.T.V.’s alleged coconspirator, B.E., committed certain overt acts, including

       “drawing a map of a classroom searing [sic] chart with J.R.’s seat targeted,

       drawing a map of the 300 building of Seymour High School, setting a specific

       date for a school shooting to occur at Seymour High School … discuss[ing]

       stealing a knife from school, discuss[ing] how to conceal murder evidence,

       discuss[ing] torturing J.R. prior to killing him, and/or plann[ing] to break into

       his parent’s gun safe ….” (Appellant’s App. at 129.)


[19]   The evidence favorable to the adjudication included testimony about M.T.V.’s

       statements at the lunch table. The evidence also included M.T.V.’s statements

       to law enforcement during an interview, where M.T.V. admitted that he and

       B.E. had Facebook conversations and that, during some of those conversations,

       B.E. mentioned making threats to shoot up the school on April 20, 2018. In the


       Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 10 of 14
       interview, M.T.V. said that B.E. had asked him to help with the shooting, and

       that two students, J.R. and G.M., were targeted. M.T.V. said that J.R. was

       targeted because B.E. had a “true disliking” for him. (Tr. Vol. II at 27.)


[20]   The State also introduced drawings found in B.E.’s binder. One drawing was of

       a school building. The drawing included teacher names on classrooms and

       showed the locations of classroom doors. Another drawing depicted the layout

       of a math classroom where B.E. had class with both J.R. and G.M. On the

       drawing, B.E. had shaded in his seat and another student’s seat, and had drawn

       an “X” over J.R.’s seat. The depicted seating chart reflected a seating

       arrangement the math teacher had implemented around October 2015. It was

       not otherwise clear when the drawings were created.


[21]   Much of the offered evidence consisted of M.T.V.’s Facebook conversations.

       In one Facebook conversation on October 20, 2015, M.T.V. mentioned to a

       friend that he was “scared like hell” for his sanity and the safety of two people,

       but said he would not give out names or what he thought was important

       information. (Tr. Vol. II at 77-78; State’s Ex. 2.) A couple of weeks later,

       M.T.V. sent a message to B.E. describing possible ways to avoid being

       identified “[i]f you are going to do a murder,” and noted to B.E. that he was

       proving his knowledge to him. (Tr. Vol. II at 81-82; State’s Ex. 3). On

       November 11, 2015, M.T.V. sent B.E. a Facebook message indicating that

       M.T.V. was having homicidal thoughts. (Tr. Vol. II at 90; State’s Ex. 5.) Two

       days later, M.T.V. and B.E. had the following conversation on Facebook,

       which the State argued reflected an agreement between M.T.V. and B.E.:


       Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 11 of 14
       B.E.: Me and [J.R.] have a mutual thing going on … He wants to get
       lots of sleep … I want him to get nonstop sleep … I’m pissed … I hate
       [J.R.]


       M.T.V.: What do you think the most painful death would be?


       B.E.: Let’s test everything in [J.R.] as we can


       M.T.V.: I was thinking that … As many cuts as possible … Without
       severing any important organs or blood vessles [sic]


       B.E.: Implement through the ass and out the mouth … You last
       between a few hours and a few days[.]


       (Tr. Vol. II. at 85, 131; State’s Ex. 4.)


[22]   A week later, M.T.V. and B.E. had a Facebook conversation where B.E. said

       he wanted to kill J.R. B.E. noted that B.E. “could steal a knife … and kill [J.R.]

       with it and then take out as many people as possible,” to which M.T.V.

       suggested that B.E. “could buy a gun” instead. (Tr. Vol. II at 143-44; Resp’t’s

       Ex. J.) B.E. replied that B.E. could attempt to break into his father’s gun safe

       so he wouldn’t have to buy a weapon. (Tr. Vol. II at 145; Resp’t’s Ex. J.)


[23]   The date April 20, 2018 also came up in Facebook conversations. In December

       2015, M.T.V. mentioned that date to B.E., and B.E. replied “#4/20/18 …

       Better make that a trend ….” (Tr. Vol. II at 91; State’s Ex. 6.) Later in the

       conversation, B.E. said, “I’ll have fun with … [a student’s] head after u cut it

       off,” and M.T.V. replied, “You have fun with [J.R.]’s dick after you cut it off

       and make him suck his own cock.” (Tr. Vol. II at 91; State’s Ex. 6.) The next

       Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 12 of 14
day, B.E. sent a message describing a scene in which he fires a gun at school

and hits J.R., and M.T.V. replied, “Well, nice shooting, Texas” (Tr. Vol. II at

95; State’s Ex. 8). On December 25, 2015, M.T.V. promised a friend on

Facebook that “everything will be better” on April 20, 2018. (Tr. Vol. II p. 92-

93; State’s Ex 7.) Later that day, M.T.V. and B.E. had the following exchange:


M.T.V.: Get a job. Get money. Get a gun.


B.E.: Or slit my wrist


M.T.V. But then there would be no 4/20/18


B.E.: Good


M.T.V.: But that’s my favorite holiday.


B.E.: Unless you help out it won’t be


M.T.V.: How the hell can I help out?


B.E.: Do it with me … It’s that simple … Or … Give our guest [J.R.] a
surprise


M.T.V.: How? I have no access to weaponry.


B.E.: Bring a knife … Slit the fuckers [sic] throat


M.T.V.: I’d much rather a gun XD. I’m not a fan of knives … If we get
the proper gear, I will consider it, until then, I am saying I can’t help
you[.]


Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 13 of 14
       (Tr. Vol. II at 139-40; Resp’t’s Ex. I.) Weeks after B.E. and M.T.V. directly

       discussed M.T.V.’s potential participation in the shooting, M.T.V. made

       statements at lunch that he and B.E. were going to conduct such a shooting.


[24]   M.T.V.’s argument that “[t]here is no conspiracy brewing in the fantastical

       misadventures of these two teenaged boys,” (Appellant’s Br. at 16), amounts to

       a request to reweigh the evidence, which we must decline. See Al-Saud, 658

       N.E.2d at 909. We find that there is substantial evidence of probative value to

       support a factfinder’s determination that M.T.V. and B.E. formed an agreement

       to inflict injury on J.R., during a school shooting to be carried out on April 20,

       2018, that would create a substantial risk of J.R.’s death. Accordingly, there is

       sufficient evidence to support the true finding.



                                                Conclusion
[25]   The trial court did not abuse its discretion in admitting Facebook conversations

       containing statements made by M.T.V. and his coconspirator, and the evidence

       is sufficient to support the delinquency adjudication.


[26]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 36A05-1607-JV-1681 | December 22, 2016   Page 14 of 14
