FILED
Jul 27 2016, 7:27 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Danny Cherry, July 27, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1505-CR-340
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G01-1405-FA-23650
Brown, Judge.
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[1] Danny Cherry appeals his convictions for attempted murder as a class A felony,
two counts of unlawful possession of a firearm by a serious violent felon as class
B felonies, criminal recklessness as a class C felony, three counts of child
exploitation as class C felonies, stalking as a class C felony, three counts of
intimidation as class D felonies, and eleven counts of dissemination of matter
harmful to a minor as class D felonies. Cherry raises three issues which we
consolidate and restate as:
I. Whether the trial court abused its discretion by admitting Cherry’s
recorded interview with police as well as documents produced by
various internet and cellular providers;
II. Whether the evidence is sufficient to sustain Cherry’s convictions.
We affirm.
Facts and Procedural History
[2] Johan Lian, who was born in 1994 and was originally from Burma, lived on
Buffalo Creek in Indianapolis with his mother, father, and younger sister. At
some point, Johan received a friend request from a Facebook account with the
name of Sui Lung, which was the same name as a person Johan knew as being
from Burma. Johan accepted the friend request, the person using the account
labeled Sui Lung initiated a conversation with Johan about a party, and the
person said that they did not remember Johan’s address so Johan provided his
address.
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[3] Johan received messages to his Facebook account from the account labeled Sui
Lung that became concerning including a message that stated: “I will kill you.”
Transcript at 367. Johan realized that the person using the account labeled Sui
Lung was not the actual Sui Lung that he knew, and asked the person to stop
contacting him. Johan kept receiving messages from the person and also
received pictures with a person’s hands tied up and pornography. Johan
removed his Facebook account and talked to the real Sui Lung who confirmed
that the person he was speaking with on Facebook was not him.
[4] On December 25, 2013, someone came to Johan’s house, knocked on the door,
and spoke to Johan’s little sister when she answered the door. This person,
later determined to be Isaac Starks who lived in Indianapolis, had met a person
who called himself “Danny” on a gay chat line, and had driven to the address
given to him by Danny that day to meet Danny.1 Id. at 448. Johan’s parents
were scared, and someone called the police.
[5] On January 4, 2014, Johan, his parents, his sister, and his older brother’s family
were at the residence on Buffalo Creek. Four people were sitting in the living
room watching television, and Johan’s father and mother were in their
bedroom. Shortly after 11:00 p.m., someone banged on the living room
window at the front of the house. Johan ran to the front door to make sure it
was locked, and his father went into the living room and was close to the
1
Johan testified that the person who came to the door asked if Johan was home. Starks testified that he
asked for Danny.
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window when gunfire erupted. No one was injured, and Johan’s father, who
did not speak English, called his pastor for help to call the police. Johan told
the police about his Facebook conversations. The police found a .25 caliber live
round directly in front of the picture window at the scene which is consistent
with a gun jamming.
[6] Within minutes of the shooting, a Facebook account associated with Chun-li
Win-Chun posted a message that read: “Mad at my gun for jammin.” State’s
Exhibit 75. Minutes later, the account posted a message that stated: “Tell johan
he lucky my gun jammed.” State’s Exhibit 77.
[7] Meanwhile, David Len, who lived with his father James Len, his mother, and
two siblings and was a part of the Chin community2 in Indianapolis, created a
Facebook account under his Burmese name of Hlu Te and observed that “there
was talk about people getting shot,” his picture had been stolen from his
Facebook account, and an account existed with his Burmese name spelled
differently and with his picture. Transcript at 102, 104, 107.
[8] On January 6, 2014, James Len, his wife, their three children, and a cousin of
the children were at home on Rentham Lane in Indianapolis. Between
midnight and 1:00 a.m. someone banged on a door, and James Len reported
that he had been shot in the mouth by a tall young black man in dark clothing.
2
David Len’s sister testified that the term “Chin” refers to the language and dialects of the Burmese people
and that the term is the “umbrella group . . . or the kind of shortened term for Burmese community.”
Transcript at 65-66.
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As a result of the injury, James Len suffered a stroke, underwent surgery, was
in intensive care for twenty-three days, and is currently unable to speak.
[9] The police recovered a .25 caliber casing at the scene. On January 6, 2014, at
1:02 a.m. an account under the name Chun-li Win-Chun posted messages that
read “Got me one” and “hlu hte mom right in head.” State’s Exhibit 76.
[10] David Len talked to Indianapolis Police Detective Timothy Fogarty and
brought up his interactions on Facebook. Based upon David Len’s statements,
Detective Fogarty contacted Detective Steven Schafer of the cyber-crimes unit,
gave him the names of the accounts, and told him that some pages were hacked
or taken over by an unknown person who had been making threats regarding
the incident and the Chin community.
[11] On January 8, 2014, a message was posted from an account labeled Hlu Hte
that stated: “I tried finish him but my gun James” followed by the message
“Jammed.” State’s Exhibit 78. That same account also posted messages which
stated: “Or i can find u like hlu,” “i thought it was his mom,” “But it was his
dad,” “If my gun didn’t Jam i would have finished the job,” “Went inside,” and
“I going to kill then hypocrites.” State’s Exhibit 79.
[12] Meanwhile, between December 2013 and February 2014, fourteen year old
C.L., who was from Hakka Chin Burma and lived in Indianapolis, received
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messages to his Facebook account from a person he did not recognize. 3 The
first message came from Na Zang and the name kept changing. In the
beginning, the person asked C.L. if he knew a girl who was one of C.L.’s
Facebook friends. C.L. told the person that he did not know her because he did
not know the identity of the person who was asking him. C.L. tried to block
the person from messaging him and seeing his profile. He changed the name on
his Facebook account, deleted all his pictures, changed his school, and created a
new account. At some point, a person calling himself Chun-li Win-Chun
contacted C.L. through Facebook. C.L. knew it was the same person that
contacted him earlier based upon the conversation.
[13] On January 1, 2014, nine messages with sexually explicit photos were sent from
a Facebook account with the name of Chun-li Win-Chun to C.L.’s account.
On January 5, 2014, three messages with sexually explicit photos were sent
from the same Facebook account to C.L. C.L. tried to ignore the messages,
send the messages back, and then blocked the person’s account.4 The police
later determined that the Facebook ID number specific to the account with the
3
C.L. testified: “My name is SL but my UN name is CL.” Transcript at 307. He also testified that his family
calls him “SL.” Id. at 308. It is unclear what “UN” stands for.
4
During the direct examination of C.L., the following exchange occurred:
Q. You said you tried to send it back – how did – how did you do that?
A. Just like – on the Facebook messages you can send pictures back or like part of a
message back and that’s –
Transcript at 325.
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name Chun-li Win-Chun account had multiple names associated with it
including Saigon Dior and Sui Lung.
[14] An account with the name Nomi, which was the name of one of C.L.’s friends,
talked to C.L. about killing one of C.L.’s friends who was also Nomi’s
boyfriend at the time. The person sent C.L. a picture of the friend and his
friends walking home from school.
[15] At some point, an account under the name Chun-li Win-Chun sent C.L. a
picture of C.L.’s then girlfriend that she had posted publicly on her Facebook
account and also told C.L. his girlfriend’s correct address, which made C.L. feel
insecure. At some point, the person threatened to kill C.L.’s mother because he
wanted nude pictures of C.L. After C.L. became aware of the shooting of
James Len, he sent pictures of himself to Chin-li Win-Chun through Facebook.
The person then posted those pictures to numerous Facebook accounts.
[16] On February 18, 2014, a student at St. Mark Catholic School in Indianapolis
took a phone call and then told the school secretary that the caller was
threatening to kill him and he did not know the identity of the person. Rusty
Albertson, the school principal, was away that morning and learned that the
school was on lockdown because one of the students had received a threatening
phone call. The person called back multiple times and told the secretary that he
was going to come to her house or follow her home and said “kind of the same”
to Principal Albertson after he arrived at the school. Transcript at 526. The
person said that if Principal Albertson did not send the young man out, then he
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was going to go in there and kill or shoot everybody. Principal Albertson
recorded one of the calls in which the person stated that he shot the father of the
young man’s friend in the head.
[17] Detective Schafer obtained multiple warrants for different companies including
Facebook and the service provider for the cell phone used to access Facebook.
As a result of the responses to the search warrants, he determined that a
Samsung Illusion model I or I110 cell phone with a specific MEID number5 and
IP address was used to access certain Facebook pages, that the phone was
purchased at a Wal-Mart store in Huntsville, Alabama, that the phone number
related to the phone had been changed multiple times, and that there were
several phone numbers with a 317 area code that had been called repeatedly.
He determined that the IP address was physically located at 5025 Blue Spring
Road in Huntsville, Alabama, and was ultimately able to narrow down a
specific apartment there. He passed this information to Detectives Fogarty and
Edward Brickley.
[18] On April 14, 2014, Detectives Fogarty, Brickley, and Dan Asher went to
Huntsville, Alabama. Detective Brickley met with Investigator Jeremy Hughes
of the Madison County Sheriff’s Department in Huntsville. On April 16, 2014,
the detectives from Indiana went to the Huntsville Sheriff’s Department offices,
5
Detective Schafer testified that MEID “is a mobile equipment identifier or mobile equipment station
identifier – basically it’s the fingerprint or serial number – digital serial number for an individual device – in
this case a cell phone. It’s . . . the individual number assigned to that phone that’s very specific much like a
person’s fingerprint.” Transcript at 169.
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where Cherry was jailed. Investigator Hughes told Detective Brickley that there
was a toggle switch on the outside of the door of the interview room and that he
could turn the recording devices on and off by flipping the switch. There was
nothing in the interview room itself from which one could tell that an interview
was being recorded. At some point, Cherry was placed in the interview room.
When Detective Brickley walked into the interview room, he flipped the switch.
[19] Cherry was relaxed and cooperative. Detective Brickley read him his Miranda
rights, and Cherry waived those rights and agreed to speak. After Cherry
signed the waiver, the two continued casual conversation. They then took a
break, and Detective Brickley flipped the switch as he left the room. Detective
Brickley and Detective Fogarty entered the interview room, and Detective
Brickley flipped the switch again as he entered. The detectives took breaks as
needed including a restroom break, a coffee break, and a smoke break all as
requested by Cherry.
[20] Cherry initially denied ever having a Facebook account. Eventually, he
admitted to having a Samsung Illusion cell phone. He indicated that he did not
shoot Johan’s house but that he had someone shoot at it. Detective Brickley
referred to the January 6th shooting, and Cherry indicated that he knew what
Detective Brickley was talking about but denied shooting the father. He denied
making the phone call to St. Mark’s School and said that another person called
the school. After Detective Brickley told Cherry that he had a recorded copy of
the phone call to the school and asked Cherry why he called the school, Cherry
answered and said something about “bitches,” stated that the documents that
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they used to “get here” are not legitimate, and that he could not obtain a decent
job. State’s Exhibit 66 at 15:07:00-15:08:00. He told the detectives that he
would tell them everything, and mentioned the discussions he had with the
Burmese children and that it “got out of control.” Id. at 15:36:50-15:37:00. He
indicated that he met some of the children in Indianapolis on a gay chat line,
and said that the Burmese are given housing and so much money. When asked
why he shot into the houses, he said in part that he was called “faggot.” Id. at
15:41:40-15:41:46. He said that he met Johan through a chat line and when
asked why he became so angry that he went to Johan’s house, he said that
Johan called him a faggot, a sissy, and a n-----.
[21] When asked how many shots he fired into Johan’s house, Cherry stated that he
fired maybe two or three shots into Johan’s house. When asked if he
remembered what kind of gun it was, he responded that it was a “deuce five,”
Id. at 15:51:45-15:51:55, which is a “[s]treet term representing . . . a .25 caliber
firearm . . . .” Transcript at 143. When asked what happened to the firearm, he
said that somebody else took it, that he was going to give it to someone, that he
was going to put it in a stash house, that he was going to put it by a tree, and
that he left it in a specific area of the Maple Grove subdivision.
[22] Cherry stated that he left a live round at Johan’s house and went back to a hotel
after the shooting. When asked if he had a fear of being charged with the
crime, he said he felt it was his responsibility to answer for that. He admitted to
shooting David Len’s father, and said that he discussed the shooting of David
Len’s father on Facebook shortly after the shooting. Specifically, he stated that
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he posted that he was the one who did it. He also stated that he rented a car
from Avis and made it seem like he had a team.
[23] The next morning, the detectives from Indiana went to the Madison County
Sheriff’s Office to pick up a DVD of the interview, and Detective Brickley was
told that there was a malfunction and the first part of the interview where
Detective Brickley and Detective Asher were in the interview room with Cherry
did not record.
[24] Based upon the interview, Detective Brickley obtained a hotel receipt from the
Motel 6 in Beech Grove indicating that Cherry arrived there on January 4,
2014, and departed on January 6, 2014. Detective Brickley received a
document from Avis Car Rental in Huntsville, Alabama, indicating that Cherry
rented a car from January 2, 2014, to January 6, 2014, and that the car was
driven 948 miles.
[25] On May 7, 2014, the State charged Cherry with attempted murder as a class A
felony, two counts of unlawful possession of a firearm by a serious violent felon
as class B felonies, criminal recklessness as a class C felony, three counts of
child exploitation as class C felonies, five counts of stalking as class C felonies,
six counts of intimidation as class D felonies, twenty counts of dissemination of
matter harmful to minors as class D felonies, and obstruction of justice as a
class D felony.
[26] On January 5, 2015, Cherry filed a pro se motion to suppress evidence including
his statements made to the arresting officers. He alleged that Investigator
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Hughes had him brought to his office against his will, that Cherry repeatedly
requested to speak with his attorney, and that Investigator Hughes struck him in
the face, told him to “shut up,” and choked him causing him to pass out briefly
and then awake on the floor soiled in his own urine and feces. Appellant’s
Appendix at 106. He asserted that he was induced by Investigator Hughes,
who threatened more violence, to sign a waiver of rights, and then that two
more investigators entered the room and told him that he could call his attorney
after he initialed the waiver and answered some basic questions. On January
16, 2015, Cherry filed an amended motion to suppress which alleged that his
statement was obtained as a result of physical, psychological, and mental
coercion.
[27] On March 25, 2015, the court held a hearing on Cherry’s motion and indicated
that it looked at about the first fifteen or twenty minutes of the video and did
not see duress but saw a “rapport built.” Transcript at 826. The court also
stated: “[B]ased on what I’ve reviewed from the video, I haven’t seen coercion
or your will being overborne, but I’ll hear what you have to say during our
motion – or suppression hearing here.” Id. at 830. After some discussion,
Cherry mentioned Ind. Evidence Rule 617 and asserted that a part of the tape
was missing and that it was not because it did not record or that the equipment
malfunctioned.
[28] Detective Brickley testified that he spoke to Investigator Hughes about
interviewing Cherry and that he was sitting in Investigator Hughes’s office
when Cherry was brought down a hallway to the interview room. He testified
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that Investigator Hughes explained to him how the recording equipment
worked and that there was a switch on the outside of the room, and that
“because of something to do with the amount of space that you could save on a
disk – they had had issues before – so it was just an on/off switch as you
entered an [sic] exited.” Id. at 864. He indicated that he, Detective Asher, and
Cherry had an initial conversation in which Detective Brickley read the
custodial interrogation advice of rights form. He testified that Cherry initialed
each right and did not indicate that he had any question or concerns or express
any fear. He stated that he spoke with Cherry for about two minutes, then read
the rights waiver, and after Cherry signed the waiver, he asked Cherry “just
some preliminary questions – who he was, his family life, where he lived, things
of that nature, just general information.” Id. at 867. He stated that he flipped
the switch when he left or returned to the interview room. He also testified that
the recording equipment was in the same building but in a different room from
the interview room.
[29] Investigator Hughes testified that the Madison County Sheriff’s Department
was located in Alabama and that he showed Detective Fogarty how to operate
the switches. He testified that while he was waiting for Cherry to be
transported, he went ahead and flipped that switch to start the recording, that
he was not present when Detective Brickley went in and turned the switch on,
and that it was possible that Detective Brickley actually turned it off because he
had already turned it on and Detective Brickley did not know it. Investigator
Hughes testified that there were instances where the system malfunctioned in
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April 2014 and that the toggle switch had to be replaced in April, May, or June.
He stated that he told Detective Brickley and/or Detective Fogarty to turn the
switch on and off each time they went in and out because their DVDs are four
hours and an interview longer than that time would comprise a file too large to
burn onto a DVD. On cross-examination, Investigator Hughes testified that it
was possible that they did not have the first part of the recording because of a
maintenance issue. Investigator Hughes also testified that there was a
maintenance report but that he did not have the report and did not pull it
because that is a supervisor issue. On redirect, Investigator Hughes agreed with
the prosecutor that it was fair to say that they could not prove if the equipment
malfunctioned or if the switch was flipped by both him and Detective Brickley.
The court denied Cherry’s motion to suppress.
[30] On March 30, 2015, a four-day jury trial commenced at which Cherry
represented himself. The court noted that the State was dismissing fourteen
counts. David Len, David Len’s sister, Detective Fogarty, Detective Schafer,
C.L., Johan, Johan’s father, Detective Brickley, and others testified.
[31] Without objection, the court admitted a number of exhibits related to the
returns regarding the search warrants. Cherry objected to some of the State’s
exhibits based on multiple grounds. When the prosecutor introduced the
recorded interview, Cherry objected and referred to Evidence Rule 617. The
court found that the exception in Rule 617(a)(3) applied, and overruled the
objection.
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[32] The jury found Cherry guilty of attempted murder, criminal recklessness as a
class C felony, three counts of child exploitation as class C felonies, two counts
of stalking as class C felonies, three counts of intimidation as class D felonies,
twelve counts of dissemination of matter harmful to a minor as class D felonies,
and obstruction of justice as a class D felony. Cherry then waived his right to a
jury trial with respect to the two counts of unlawful possession of a firearm by a
serious violent felon and stipulated to a prior conviction for unlawful wounding
in Virginia.
[33] On April 24, 2015, the court vacated the conviction for obstruction of justice
and sentenced Cherry to forty years for attempted murder, ten years for each of
the unlawful possession of a firearm by a serious violent felon convictions, eight
years for criminal recklessness as a class C felony, five years for each of the
convictions for child exploitation as class C felonies, five years for each of the
convictions for stalking as class C felonies, two years for each of the convictions
for intimidation as class D felonies, one year each for nine of the counts of
dissemination of matter harmful to a minor as class D felonies, and two years
each for three of the counts of dissemination of matter harmful to a minor as
class D felonies. The court sentenced Cherry to an aggregate sentence of eighty
years.
Discussion
I.
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[34] The first issue is whether the trial court abused its discretion by admitting
Cherry’s recorded interview with police and documents produced by various
internet and cellular providers. Generally, we review the trial court’s ruling on
the admission or exclusion of evidence for an abuse of discretion. Roche v. State,
690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only where the
decision is clearly against the logic and effect of the facts and circumstances.
Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. Even if the trial
court’s decision was an abuse of discretion, we will not reverse if the admission
constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.
1999), reh’g denied, trans. denied.
A. Interview with Police
[35] Cherry points to Ind. Evidence Rule 617 and argues that the court abused its
discretion in admitting the recorded portion of his interview with police because
the portion of the interview lasting twenty or twenty-five minutes during which
he signed the waiver of his Miranda rights was not recorded and there was no
clear and convincing evidence as to how or if the recording equipment
malfunctioned. Cherry also contends that the error was prejudicial to him
because the police did not recover any of his fingerprints or DNA at the scenes,
no firearm was recovered, and no witness identified him.
[36] The State contends that the exception in Rule 617(a)(3) was tailor-made for this
case and points out that the detectives were in an unfamiliar interview room in
Alabama, that Detective Brickley followed the instructions and flipped the
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switch before commencing the interview, and that the detectives had no way of
knowing if the recording device was functioning while they were inside the
interview room. The State asserts that the initial portion of the interview was
not recorded because of the malfunction and that the toggle switch subsequently
had to be repaired and ultimately replaced. The State also notes that a
significant portion of Cherry’s statement was recorded and that Cherry does not
contest the validity of his waiver of Miranda rights.
[37] Ind. Evidence Rule 617 is titled “Unrecorded Statements During Custodial
Interrogation,” and provides:
(a) In a felony criminal prosecution, evidence of a statement
made by a person during a Custodial Interrogation in a Place of
Detention shall not be admitted against the person unless an
Electronic Recording of the statement was made, preserved, and
is available at trial, except upon clear and convincing proof of
any one of the following:
*****
(3) The law enforcement officers conducting the Custodial
Interrogation in good faith failed to make an Electronic
Recording because the officers inadvertently failed to
operate the recording equipment properly, or without the
knowledge of any of said officers the recording equipment
malfunctioned or stopped operating; or
*****
(b) For purposes of this rule, “Electronic Recording” means an
audio-video recording that includes at least not only the visible
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images of the person being interviewed but also the voices of said
person and the interrogating officers; “Custodial Interrogation”
means an interview conducted by law enforcement during which
a reasonable person would consider himself or herself to be in
custody; and “Place of Detention” means a jail, law enforcement
agency station house, or any other stationary or mobile building
owned or operated by a law enforcement agency at which
persons are detained in connection with criminal investigations.
(c) The Electronic Recording must be a complete, authentic,
accurate, unaltered, and continuous record of a Custodial
Interrogation.
(d) This rule is in addition to, and does not diminish, any other
requirement of law regarding the admissibility of a person’s
statements.
[38] Ind. Evidence Rule 617(a)(3) applies here. Detective Brickley testified that he
followed the instructions that Investigator Hughes gave him and that there was
some type of malfunction. Investigator Hughes testified that when he was
waiting for Cherry to be transported, he turned the switch to start the recording,
that he was not present when Detective Brickley went in and flipped the switch,
and that it was possible that Detective Brickley actually turned it off because
Investigator Hughes had already turned it on and Detective Brickley did not
know it. Investigator Hughes also testified that there were instances where the
system malfunctioned in April 2014 and that the toggle switch had to be
replaced in April, May, or June. On redirect, Investigator Hughes agreed with
the prosecutor that it was fair to say that they could not prove if the equipment
malfunctioned or if the switch was flipped by both him and Detective Brickley.
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[39] Based upon the record, we cannot say that the trial court abused its discretion in
finding that there was clear and convincing evidence that the exception in Rule
617(a)(3) applied. Accordingly, we cannot say that the trial court abused its
discretion by admitting the recorded portions of the interview of Cherry.
B. Documents from Internet and Cellular Providers
[40] Cherry cites Ind. Evidence Rule 901 and argues that there was no evidence to
link the photographs or text messages that supported the State’s argument on
the counts of intimidation, child exploitation, intimidation, stalking, and
dissemination of matter harmful to minors other than the documents that used
the MEID. Without citation to the record, he asserts that the trial court abused
its discretion in overruling his timely objection to the authenticity of the
documents. He does not cite to any specific exhibit out of the seventy-nine
exhibits that were admitted at trial to support his argument that the trial court
abused its discretion. See Ind. Appellate Rule 46(A)(8) (governing the
arrangement and content of briefs and providing that “[e]ach contention must
be supported by citations to the authorities, statutes, and the Appendix or parts
of the Record on Appeal relied on, in accordance with Rule 22” and that “[i]f
the admissibility of evidence is in dispute, citation shall be made to the pages of
the Transcript where the evidence was identified, offered, and received or
rejected, in conformity with Rule 22(C)”). Accordingly, we conclude that
Cherry waived this argument.
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II.
[41] The next issue is whether the evidence is sufficient to sustain Cherry’s
convictions. He does not argue that the evidence was insufficient to sustain any
specific charge. Rather, He argues that there was no physical evidence to link
him to any of the numerous counts and that only his statement to police tended
to establish that he was the person who committed the offenses.
[42] The State points out that Cherry does not contest that the crimes were
committed or that any specific element of any individual crime was lacking.
The State also points to Cherry’s statement to law enforcement linking him to
the charged crimes, the fact that the IP address from which relevant Facebook
posts were made belonged to a mobile telephone which detectives traced to
Cherry’s residence, Cherry’s movements from Alabama to Indianapolis and
back to Alabama, and the mobile telephone records.
[43] When reviewing claims of insufficiency of the evidence, we do not reweigh the
evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,
817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the
reasonable inferences therefrom that support the verdict. Id. We will affirm the
conviction if there exists evidence of probative value from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. Id.
Identity may be established entirely by circumstantial evidence and the logical
inferences drawn therefrom. Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind.
Court of Appeals of Indiana | Opinion 49A02-1505-CR-340 | July 27, 2016 Page 20 of 21
1990). Identification testimony need not necessarily be unequivocal to sustain a
conviction. Heeter v. State, 661 N.E.2d 612, 616 (Ind. Ct. App. 1996).
[44] Cherry’s statement implicated him in the crimes. The police recovered
evidence that a .25 caliber weapon was used at the scene at Rentham Lane and
at Buffalo Ridge. When asked if he remembered what kind of gun it was,
Cherry stated that it was a “deuce five,” State’s Exhibit 66 at 15:51:45-15:51:55,
which is a “[s]treet term representing a firearm – a .25 caliber firearm in
particular.” Transcript at 143. The hotel receipt and document from Avis Car
Rental indicated Cherry was in Indiana during the time of the shootings. The
jury also heard the phone call and could compare the voice on the phone call
with Cherry’s voice. Based upon the evidence discussed above and reflected in
the record, we conclude that the State presented evidence of probative value
from which a reasonable jury could have determined beyond a reasonable
doubt that Cherry was the person who committed the crimes.
Conclusion
[45] For the foregoing reasons, we affirm Cherry’s convictions.
[46] Affirmed.
Baker, J., and May, J., concur.
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