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McFall v. State

Court of Appeals of Indiana

February 22, 2017

Ashley N. McFall, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

         Appeal from the Elkhart Superior Court The Honorable Teresa L. Cataldo, Judge, Trial Court Cause No. 20D03-1310-FA-57

          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.


         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. I ...

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