McFall v. State

• Decision Date: 22 February 2017
• Docket Number: Court of Appeals Case No. 20A03-1602-CR-267
• Parties: Ashley N. MCFALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

71 N.E.3d 383

Ashley N. MCFALL, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 20A03-1602-CR-267

Court of Appeals of Indiana.

February 22, 2017

Attorney for Appellant : Donald R. Shuler, Barkes, Kolbus, Rife & Shuler, LLP, Goshen, Indiana.

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, Indiana.

Vaidik, Chief Judge.

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.

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 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. 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).

[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.

[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 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...