Michael Wisdom v. State of Indiana ( 2020 )

FILED
Dec 22 2020, 8:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Curtis T. Hill, Jr.
Evansville, Indiana Attorney General
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Wisdom, December 22, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-931
v. Appeal from the
Vanderburgh Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff Kelli Fink, Magistrate
Trial Court Cause No.
82C01-1412-F2-4970
Vaidik, Judge.
Case Summary
To authenticate under Evidence Rule 901, the State need show only the
evidence is what the State purports it to be. An Instagram account and photos
from Facebook tending to show Michael Wisdom was a member of a gang
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were properly admitted. A detective testified she recognized Wisdom and many
known gang members in the Facebook photos and Instagram posts, and that
the Instagram account itself appeared to be associated both with Wisdom—as
his name was on the account and the vast majority of pictures were of him—
and with the gang—as the account’s username and several photo captions
referenced the gang. This testimony was sufficient to show the Facebook photos
and Instagram account were what the State purported them to be.
There was also no double-jeopardy violation. In the first phase of the bifurcated
trial, Wisdom was found not guilty of criminal-organization activity, a charge
which includes a gang-related element. He was found guilty of possession of a
controlled substance. In the second phase, the jury also found him guilty of a
gang-related sentencing enhancement. Wisdom argues his acquittal of criminal-
organization activity in the first phase prohibited the State from proceeding
with the enhancement charge in the second phase under the statutory-elements
test and the actual-evidence test set forth in Richardson v. State. 717 N.E.2d 32(Ind. 1999). Because criminal-organization activity and the enhancement
require different statutory elements and because there is not a reasonable
possibility the jury used the same evidence to acquit Wisdom of criminal-
organization activity and to convict him of the enhancement, we find no
violation of his rights.
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Facts and Procedural History
In November 2014, Detective Michael Sides of the Evansville Police
Department executed a search warrant at the home of Mary Chrisler. Chrisler
lived at the home with her adult children, Kendra Jones and Wisdom. In a
bedroom closet, Detective Sides discovered a handgun, scale, box of baggies,
box of latex gloves, and twenty-two pills. Analysis of the pills revealed a
mixture of acetaminophen and hydrocodone—a schedule II controlled
substance—with a total weight of 8.92 grams. The room also contained a wallet
with Wisdom’s identification card that showed the home to be his address and
a sweatshirt with the phrase “WB3” and “F*ck Da Opps[.]” Tr. p. 29. Hand
drawn on the bedroom wall were the phrases “life of a savage” and “Wagg
Block 300,” which is a gang in the Evansville area.1 Id. at 23.
The State charged Wisdom with Level 3 felony dealing in a schedule II
controlled substance (Count I), alleging Wisdom “was in possession of a
firearm when he possessed a schedule II controlled substance with the intent to
deliver that substance.” Id. at 8; see also Ind. Code § 35-48-4-2(a)(2)(C). As to
Count I, the State also filed the gang enhancement alleging Wisdom committed
the underlying offense of possession with intent to deliver a schedule II
controlled substance while a “member of a gang” and “at the direction of or in
affiliation with a criminal gang.” Appellant’s App. Vol. II p. 46; see also Ind.
1
The criminal gang in this case is referred to as “Wagg Block 300” and “300 Wagg Block” interchangeably
throughout the record. For continuity, we will use “Wagg Block 300.”
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Code § 35-50-2-15(b). The State also charged Wisdom with Level 6 felony
criminal-organization activity (Count II), alleging Wisdom committed an
offense “with the intent to benefit, promote, or further the interests of” Wagg
Block 300. Appellant’s App. Vol. II p. 44; see also Ind. Code § 35-45-9-3(c)(1).
The trial occurred over two days in May 2015. The trial was bifurcated, with
Counts I and II to be tried in the first phase and the gang enhancement to be
tried, if necessary, in the second phase. In the first phase, Crystal Thomas,
another detective with the Evansville Police Department, testified as to her
experience with Wagg Block 300. During her testimony, the State sought to
introduce Wisdom’s alleged Instagram account and pictures posted on
Facebook. The defense objected, arguing this evidence had not been properly
authenticated under Indiana Evidence Rule 901. The court admitted the
exhibits “[b]ased on the fact that [it could] see his pictures and identify him as
Michael Wisdom” and also because the identifying information on the account
included Wisdom’s full name and a username associated with the gang. Tr. p.
136.
The State first introduced the Facebook photos. Detective Thomas testified one
photo appeared to be a promotional poster for the gang and included a picture
of Wisdom. Other photos included Wisdom with individuals Detective Thomas
believed to be members of Wagg Block 300 and to have previously been
“convicted of criminal gang activity.” Id. at 162. Often in the photos, Wisdom
or some of the other individuals were “holding up the 300 hand sign[.]” Id.Court of Appeals of Indiana | Opinion 20A-CR-931 | December 22, 2020 Page 4 of 15
The State then introduced an Instagram account. Detective Thomas believed
the account to be Wisdom’s because the Instagram identifier included his full
name, the account’s “username”—Block_burna300—was a nickname
associated with the gang, and a “vast majority of the photos” on the account
were “selfies” of Wisdom. Id. at 163, 164. Again, the photos often depicted
Wisdom with individuals Detective Thomas believed to be members of Wagg
Block 300 and included captions referencing “gang 300.” Id. at 166. The
account also included videos of Wisdom, including one in which he is holding
cash and “saying that he had money, [was] making money on Wagg Block.” Id.
at 165. The State also presented handwritten rap lyrics discovered among
Wisdom’s possessions, which Detective Thomas testified seemed to reference
Wagg Block 300 and a criminal lifestyle.
The jury was sent back to deliberate on Counts I and II. On Count I, the jury
returned a verdict of not guilty of dealing (possession with intent to deliver) but
found Wisdom guilty of the lesser-included offense of Level 4 possession of a
schedule II narcotic drug. See Ind. Code § 35-48-4-6(a). The jury also found
Wisdom not guilty of Count II (criminal-organization activity). The State
indicated it intended to proceed with the gang-enhancement phase of the trial.
The defense objected “based upon the fact that the Jury’s verdict in Count [II]
which is Criminal Gang Activity, he was found not guilty in that Count.” Tr. p.
220. Over the defense’s objection, the court proceeded to the enhancement
phase and allowed the State to make new argument to the jury. The jury found
Wisdom guilty on the enhancement, which required the court to sentence him
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to an “additional fixed term of imprisonment equal to the sentence imposed for
the underlying felony.” I.C. § 35-50-2-15(d)(1). The court sentenced Wisdom to
eight years on Count I, plus a gang enhancement of eight years, for a total of
sixteen years.
Earlier this year, Wisdom sought and received permission to file this belated
appeal.
Discussion and Decision
I. Authentication of Evidence
Wisdom challenges the “admission of the Instagram and Facebook posts[.]”
Appellant’s Br. p. 9. 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), reh’g denied, trans. denied. 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.Wisdom argues the challenged social-media posts were not properly
authenticated under Evidence Rule 901(a), which provides, “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
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proponent claims it is.” “Once this reasonable probability is shown, any
inconclusiveness regarding the exhibit’s connection with the events at issue goes
to the exhibit’s weight, not its admissibility.” Pavlovich v. State, 6 N.E.3d 969,
976 (Ind. Ct. App. 2014), trans. denied. “Authentication of an exhibit can be
established by either direct or circumstantial evidence.” Id. “Absolute proof of
authenticity is not required.” Fry v. State, 885 N.E.2d 741, 748 (Ind. Ct. App.
2008), trans. denied.
Wisdom argues the State did not present sufficient evidence to authenticate the
Facebook photos and Instagram account because instead of introducing
“evidence of a social media account through a user who has personal
knowledge of the account’s owner” the State provided only “the detective’s
hunch that this account belonged to Wisdom.” Appellant’s Br. p. 16. Many
cases involving social-media accounts hinge on evidence of the account’s
owner. In Wilson v. State, the State introduced gang-related Twitter posts
allegedly written by the defendant. 30 N.E.3d 1264, 1269 (Ind. Ct. App. 2015),
trans. denied. To authenticate the posts as being authored by the defendant, the
State presented a witness who testified she often communicated with the
defendant through that Twitter account. Id. We held this testimony was
sufficient to authenticate the Twitter posts as being authored by the defendant.
Id. In Richardson v. State, we held a statement made in Facebook messages was
not properly authenticated because the State did not present evidence the
Facebook account belonged to the defendant nor did it “present any other
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indicia of reliability establishing [the defendant] as the author of the contested
statement.” 79 N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied.
However, those cases dealt with incriminating textual communications made
through social-media accounts where the State sought to establish the defendant
authored those communications. Due to the inherent anonymity of social
media, the author of posts or other communications made through this medium
can be difficult to confirm, as generally no one sees who composed the
messages and “anyone who signed into the [social-media account] . . . could
compose messages[.]” Id. at 963. Where the State is claiming the defendant
made the statements through the social-media account, evidence of the
account’s owner is often necessary to authenticate those statements. The
exhibits admitted here, however, were (1) several photographs taken from a
Facebook account and (2) an Instagram account showing photos and videos of
the defendant.
The admissibility of photos or videos taken from online social-media platforms
like Facebook and Instagram has not been specifically addressed in Indiana.
However, federal circuits have addressed this issue. See United States v. Farrad,
895 F.3d 859, 879-80 (6th Cir. 2018). In Farrad, the defendant was charged with
illegally possessing a firearm. The State introduced photos taken from Facebook
purporting to show Farrad holding a firearm. The Sixth Circuit held that
because the details of the Facebook account matched Farrad and the photos
appeared to show Farrad, his tattoos, and his apartment, the photos cleared
“the relatively lower hurdle of authentication.” Id. at 878; see also United States v.
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Vázquez-Soto, 939 F.3d 365, 374 (1st Cir. 2019) (Facebook photo properly
authenticated through the testimony of a witness he recognized the defendant in
the photo). Courts have further applied this standard to social-media accounts
as a whole. See United States v. Recio, 884 F.3d 230, 237 (4th Cir. 2018)
(authenticating Facebook account because government “sufficiently tied” the
account to defendant by showing the username of the account was his, the
email address associated with the account was his, and more than a hundred
photos on the account were of him).
Therefore, the authentication of social-media evidence turns on whether there is
sufficient evidence to support a finding it is what the claimant purports it to be.
And while the source of the evidence may sometimes be needed, authentication
“depend[s] on context.” United States v. Vayner, 769 F.3d 125, 133 (2nd Cir.
2014). Here, the State claimed these exhibits to be “documentation of
[Wisdom’s] association with confirmed members of [Wagg Block 300].” Tr. p.
137. Unlike in Wilson and Richardson, these social-media posts were not being
used to show Wisdom was the source of some incriminating communication.
Rather, his mere presence in the Facebook photos and association with the
Instagram account were used by the State to show Wisdom was affiliated with
other members of Wagg Block 300.
Regarding the Facebook photos, Detective Thomas testified she recognized
Wisdom in the photos and believed many of the other individuals in the photos
were Wagg Block 300 members who had been convicted of gang-related
activities. Relating to the Instagram account, Detective Thomas testified (1) the
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account was registered under Wisdom’s full name; (2) Wisdom was in a “vast
majority” of the photos, which appeared to be “selfies” or photos he took of
himself; (3) the account’s username—Block_burna300—was a nickname
associated with Wagg Block 300; (4) a video on the account featured Wisdom
saying he was making money on Wagg Block; and (5) some pictures had
captions that appeared to be associated with the gang, such as “gang 300[.]” Id.
at 131, 164, 166. This is sufficient to authenticate the Facebook photos and
Instagram account as being what the State purported them to be.
The trial court did not abuse its discretion by admitting the contested exhibits.2
II. Double Jeopardy
Wisdom also argues the State should not have been allowed to go forward on
the gang enhancement in the second phase of the trial because he was acquitted
of criminal-organization activity in the first phase of the trial. Specifically, he
asserts the enhancement phase constituted double jeopardy under the Indiana
2
Electronic photos are susceptible to manipulation, and “the various questions raised by potentially altered
social-media images could conceivably be quite interesting.” Farrad, 895 F.3d at 874 (quotation omitted).
However, this case does not present those questions. Instead, there was indicia of reliability and no indication
of fabrication or manipulation. In fact, trial counsel seemed to acknowledge the photos and video were of
Wisdom in the closing argument: “Whether [Wisdom] associated with [Wagg Block 300] or not I think is
probably pretty reasonable through his admissions from some of the pictures and video that you saw.” Tr. p.
209. And while Wisdom’s trial counsel did argue the accounts could have been created by someone else—a
“catfish” theory—again the source of the evidence here was not essential. What matters is whether the
evidence was what the State purported it to be: photos and videos of Wisdom. And there did not appear to be
anything questioning their authenticity.
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Constitution because it gave the State “a second bite at the apple” to prove the
fact of his gang involvement. Appellant’s Br. p. 11.
Article 1, § 14 of the Indiana Constitution provides, in part, that “[n]o person
shall be put in jeopardy twice for the same offense.” Under this provision, two
offenses are the “same offense” if, “with respect to either the statutory elements
of the challenged crimes or the actual evidence used to convict, the essential
elements of one challenged offense also establish the essential elements of
another challenged offense.” Richardson, 717 N.E.2d at 49.3
Wisdom first argues prosecution on the gang enhancement violated the
statutory-elements test because the enhancement included “an issue upon
which [the jury] already deliberated.” Appellant’s Br. p. 13. We first note it is
unclear whether the statutory-elements test even applies to claims of double
jeopardy based on successive prosecutions. See Garrett v. State, 992 N.E.2d 710(Ind. 2013) (applying only the actual-evidence test to a successive-prosecution
claim); see also Wadle v. State, 151 N.E.3d 227, 244 n.15 (Ind. 2020). But even if
it does, the test has not been met here because criminal-organization activity
and the gang enhancement have different elements. Criminal-organization
3
While this appeal was pending, our Supreme Court overruled Richardson as it relates to claims of
“substantive double jeopardy,” i.e., claims of double jeopardy based on multiple convictions. See Wadle v.
State, 151 N.E.3d 227 (Ind. 2020). However, it did not disturb Richardson as it relates to claims of “procedural
double jeopardy,” i.e., claims of double jeopardy based on multiple prosecutions. Id. at 244 n.15 (“Because
Wadle’s case presents no question of procedural double jeopardy, we expressly reserve any conclusion on
whether to overrule Richardson in that context.”). Wisdom makes a claim of procedural double jeopardy, so
we apply Richardson.
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activity requires committing an offense “with the intent to benefit, promote, or
further the interests of” a gang, while the gang enhancement requires
committing an offense while a “member of a gang” and “at the direction of or
in affiliation with” a gang. I.C. §§ 35-45-9-3(c)(1), 35-50-2-15(b). As the State
points out, “the question of whether a defendant acted with intent to benefit a
gang is distinct from the question of whether a defendant acted while affiliated
with a gang[.]” Appellee’s Br. p. 25.
Wisdom also argues prosecution on the gang enhancement violated the actual-
evidence test because during the enhancement phase the State “rested on the
evidence that had already [been] presented at trial to prove the evidence for
Count II.” Appellant’s Br. p. 13. It is true the State presented no new evidence
during the enhancement phase, relying only on evidence already presented.
However, the question under the actual-evidence test is not whether the same
evidence was presented but whether the trier of fact considered and relied
upon the same evidence to make the two decisions.
When, as here, the alleged double-jeopardy violation involves “multiple
verdicts, not simply multiple convictions, on the same facts,” we apply the
modified Richardson actual-evidence test as laid out in Garrett. 992 N.E.2d at
721. That test asks whether “there is a reasonable possibility that the evidentiary
facts used by the fact-finder to establish the essential elements of the offense for
which the defendant was acquitted may also have been used to establish all of
the essential elements of the offense for which the defendant was convicted.” Id.
at 723. “The existence of a ‘reasonable possibility’ turns on a practical
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assessment of whether the [fact-finder] may have latched on to exactly the same
facts” for both verdicts. Id. at 720 (citation omitted). “We evaluate the evidence
from the jury’s perspective and may consider the charging information, jury
instructions, and arguments of counsel.” Id.
In Garrett, the defendant was charged with two counts of rape, among other
charges, for raping the same woman twice in one evening. The jury acquitted
him of the first rape count but hung on the second. The State then retried the
defendant in a bench trial on the second count, presenting nearly identical
evidence of the first rape (which the defendant was acquitted of in the first trial)
and very little evidence of the second rape (which was the offense charged in
the second trial). The judge found the defendant guilty. Our Supreme Court
reversed, applying the modified actual-evidence test and finding there was a
“reasonable possibility that the evidentiary facts used by the fact-finder to
establish the essential elements of the offense for which the defendant was
acquitted may also have been used to establish all of the essential elements of
the offense for which the defendant was convicted.” Id. at 723. Specifically, the
Court stated that because “the State presented the same evidence of” the first
rape at both trials and “given the relative paucity of evidence on retrial
concerning” the second rape, it was reasonable to assume evidence of the first
rape—of which defendant was acquitted—was used during the retrial to convict
the defendant in the second trial. Id.
Applying the same test here, we reach the opposite conclusion. Notably,
Wisdom makes no argument as to the jury’s use of the gang evidence in the two
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phases of the trial, stating only there could be “no question” the jury based both
decisions on the same evidence because no new gang evidence was presented
during the second phase. Appellant’s Br. p. 13. We disagree. In Count I,
Wisdom was charged with dealing (possession with intent to deliver) in a
schedule II controlled substance while in possession of a firearm, with a
sentencing enhancement for committing the offense while a “member of a
gang” and “at the direction of or in affiliation with” a gang. In Count II, he was
charged with dealing in a schedule II controlled substance “with the intent to
benefit, promote, or further the interests of a criminal gang.” On Count I, the
jury found Wisdom guilty of the lesser-included offense of possession but not
dealing (possession with intent to deliver) and also found him guilty on the
enhancement. On Count II, the jury found Wisdom not guilty. Taken together,
the verdicts on Count I and its enhancement—guilty of possession but not
dealing and guilty of committing possession while a “member of a gang” and
“at the direction of or in affiliation with” a gang—indicate the jury found
Wisdom not guilty on Count II because of the dealing element, not because of
the gang element.
Furthermore, like in Garrett, evidence presented at trial indicates what
evidentiary facts the fact-finder relied on. Here, the evidence for dealing was
limited to the presence of the baggies and the amount of the pills. On the other
hand, there was plenty of evidence of gang membership and affiliation: the art
on his bedroom walls, his gang-related clothing, the rap lyrics, and the social-
media posts. The evidence taken together indicates the jury did not “latch on”
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to the same facts to acquit Wisdom of Count II and to convict him of the
enhancement because the acquittal was based on the dealing evidence (or lack
thereof) and the enhancement was based on the overwhelming gang evidence.
And therefore there is no reasonable possibility the jury relied on the same
evidentiary facts to acquit Wisdom of criminal-organization activity and to find
him guilty of the gang enhancement.
We therefore conclude Wisdom was not twice prosecuted for the same offense
in violation of the Indiana Constitution.4
Affirmed.
Bailey, J., and Weissmann, J., concur.
4
The State argues a double-jeopardy analysis is not appropriate here because a sentencing enhancement “is
not an ‘offense’ for double jeopardy purposes[.]” Appellee’s Br. p. 18. Recently, in Wadle, the Supreme Court
reiterated that “an enhanced punishment, whether based on attendant circumstances or on a prior conviction,
presents no ‘double jeopardy issue at all.’” 151 N.E.3d at 254 (quoting Workman v. State, 716 N.E.2d 445, 448
(Ind. 1999)). But Wadle deals with substantive double-jeopardy issues and not claims of procedural double
jeopardy as we have here. See note 2, supra. As our Supreme Court did in Wadle, we decline to extend its
holding to procedural double-jeopardy claims.
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