M.T v. v. State of Indiana , 66 N.E.3d 960 ( 2016 )

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.
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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.
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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
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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.
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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
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“@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.
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[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
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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.
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[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
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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
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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.:
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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
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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[.]
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(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.
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