MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 01 2020, 10:13 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Scott M. Vaughn, April 1, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1293
v. Appeal from the Dearborn
Superior Court
State of Indiana, The Honorable Jonathan N.
Appellee-Plaintiff Cleary, Judge
Trial Court Cause No.
15D01-1902-F3-5
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1293 | April 1, 2020 Page 1 of 15
[1] Scott M. Vaughn appeals his conviction of Level 3 felony dealing in
methamphetamine, 1 Level 6 felony possession of a syringe, 2 and Class C
misdemeanor possession of paraphernalia. 3 Vaughn presents three issues for
our review:
1. Whether the trial court abused its discretion by admitting
evidence of an alleged Facebook conversation between
Vaughn and a confidential informant;
2. Whether the State presented sufficient evidence to convict
Vaughn of Level 3 felony dealing in methamphetamine,
Level 6 felony possession of a syringe, and Class C
misdemeanor possession of paraphernalia; and
3. Whether Vaughn’s fourteen-year sentence was
inappropriate in light of the nature of his offense and his
character.
We affirm.
Facts and Procedural History
[2] In 2019, Eli McGuire was helping local law enforcement as a confidential
informant (hereinafter “CI”). McGuire was told by a friend that Vaughn was
selling methamphetamine. McGuire reached out to Vaughn on Facebook
1
Ind. Code § 35-48-4-1.1(d)(1) (2017).
2
Ind. Code § 16-42-19-18(a)(1) (2015).
3
Ind. Code § 35-48-4-8.3(b)(1) (2015).
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about buying drugs. Vaughn sent McGuire a picture of his stash of
methamphetamine. Vaughn agreed to meet with McGuire to sell him six grams
of methamphetamine. McGuire informed the police that he had set up a
meeting.
[3] Prior to the meeting, the police provided McGuire with money for the purchase
and a recording device. McGuire met Vaughn in a parking lot. Vaughn
entered McGuire’s car and produced multiple bags containing
methamphetamine. McGuire bought four small baggies containing
methamphetamine. After the sale was complete, Vaughn exited the car and
was quickly apprehended. As part of a search incident to Vaughn’s arrest,
police found money, a syringe, a cut straw, 4 and a bag containing
methamphetamine.
[4] Vaughn admitted to the police that he sold McGuire methamphetamine.
Vaughn also gave the police permission to search his phone. Based on the
police investigation, the State charged Vaughn with Level 3 felony dealing in
methamphetamine, Level 6 felony possession of methamphetamine, 5 Level 6
felony possession of a syringe, and Class C misdemeanor possession of
paraphernalia. A jury found Vaughn guilty of all four counts, but the trial court
refused to enter the conviction of Level 6 felony possession of
4
The probable cause affidavit stated that “short pieces of straw are commonly used to introduce illegal
substances into the body.” (App. Vol. II at 18.)
5
Ind. Code § 35-48-4-6.1(a) (2014).
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methamphetamine on double jeopardy grounds. The trial court sentenced
Vaughn to fourteen years in prison with one year suspended to probation for his
conviction of Level 3 felony dealing in methamphetamine, two years in prison
with one year suspended to probation for his conviction of Level 6 felony
possession of a syringe, and sixty-days for his conviction of Class C
misdemeanor possession of paraphernalia. His sentences for possession of
syringe and possession of paraphernalia were to be served concurrently with the
conviction of dealing in methamphetamine.
Discussion and Decision
1. Admission of Evidence
[5] “A trial court has broad discretion in ruling on the admissibility of evidence and
we will disturb its rulings only where it is shown that the court abused that
discretion.” Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). An abuse of
discretion occurs if the trial court’s decision is “clearly against the logic and
effect of the facts and circumstances before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom.” Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).
Vaughn argues that the trial court abused its discretion when it admitted photos
of a conversation Vaughn had with individuals using the Facebook Messenger
app because the messages were not properly authenticated.
[6] “To satisfy the requirement of authenticating or identifying an item of evidence,
the proponent must produce evidence sufficient to support a finding that the
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item is what the proponent claims it is.” Ind. Evid. R. 901. Authentication of
an exhibit can be established by either “direct or circumstantial evidence.”
Newman v. State, 675 N.E.2d 1109, 1111 (Ind. Ct. App. 1996). Testimony that
an item is what it is claimed to be, by a witness with knowledge, is sufficient to
authenticate an item. Evid. R. 901. Distinctive characteristics like “the
appearance, contents, substance, [and] internal patterns” taken together with all
the circumstances is another way to authenticate an item of evidence. Id.
“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. “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.
[7] State’s Exhibits 27-A and 28-A contain photos police took of a conversation on
the phone that the State alleged Vaughn and another person had via Facebook
Messenger. In the conversation, Vaughn was attempting to set up drug deals.
The State took these photos after getting permission from Vaughn to search his
phone. Officer Kolb testified he had taken the photos and they were a true and
accurate copy of the photograph he took of Vaughn’s phone. (Tr. Vol. IV at
134, 137.) The State did not elicit testimony as to who authored the
conversation. Vaughn’s counsel objected to the admission of both 27-A and 28-
A arguing the photos had not been properly authenticated. The trial court
overruled the objection and admitted both exhibits into evidence.
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[8] “Even though we have determined that a text message stored in
a cellular telephone is intrinsic to the telephone, a proponent may
offer the substance of the text message for an evidentiary purpose
unique from the purpose served by the telephone itself. Rather,
in such cases, the text message must be separately authenticated
pursuant to Indiana Evidence Rule 901(a).”
Hape v. State, 903 N.E.2d 977, 991 (Ind. Ct. App. 2009), trans. denied. In M.T.V.
v. State, 66 N.E.3d 960 (Ind. Ct. App. 2016), this Court concluded Facebook
conversations were properly authenticated by testimony from the defendant
admitting to the conversation and from an affidavit from Facebook’s authorized
record custodian. Id. at 964. Neither of those methods of authentication
occurred here. While the State properly authenticated the photos of the phone
through Officer Kolb’s testimony indicating he took the photos, the State did
not lay sufficient foundation to authenticate the conversation depicted in the
photos. Thus, we conclude the trial court abused its discretion in admitting
State’s exhibits 27-A and 28-A. See Richardson v. State, 79 N.E.3d 958, 964 (Ind.
Ct. App. 2017) (trial court properly denied admission of Facebook messages
when State failed to properly authenticate the messages), trans. denied.
[9] Having concluded the court improperly admitted State’s Exhibits 27-A and 28-
A, we next assess whether the error was harmless. “Harmless error is error that
does not affect the substantial rights of a party given the error’s likely impact on
the jury in light of other evidence presented at trial.” Raess v. Doescher, 883
N.E.2d 790, 796 (Ind. 2008), reh’g denied. “The improper admission of evidence
is harmless error when the conviction is supported by such substantial
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independent evidence of guilt as to satisfy the reviewing court that there is no
substantial likelihood that the questioned evidence contributed to the
conviction.” Barker v. State, 695 N.E.2d 925, 931 (Ind. 1998), reh’g denied. The
erroneous admission of evidence may also be harmless if that evidence is
cumulative of other evidence admitted. Donaldson v. Indianapolis Pub. Transp.
Corp., 632 N.E.2d 1167, 1172 (Ind. Ct. App. 1994).
[10] Police arrested Vaughn after observing him perform a drug deal with their CI.
During a search of Vaughn, officers located a syringe, a bag with a substance
identified as methamphetamine, numerous other little baggies, and a cut straw.
Police also seized money that matched the money that was given to the CI to
purchase the drugs. Officer Jason Seikman testified to an interview conducted
with Vaugh at the law enforcement center. Officer Seikman explained
“[Vaughn] stated he was selling meth to pay bills. [Vaughn] knew he wasn’t
going to get out of it.” (Tr. Vol. III at 10.) The CI also testified to other
properly admitted electronic message conversations he had with Vaughn in
which Vaughn arranged to sell methamphetamine. Therefore, any error in the
admission of Vaughn’s Facebook messages in State’s Exhibits 27-A and 28-A
was harmless because the evidence in question was cumulative of other
properly admitted evidence. See Leonard v. State, 86 N.E.3d 406, 413 (Ind. Ct.
App. 2017) (error in the admission of evidence is harmless if cumulative of
other properly admitted evidence), trans. denied.
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2. Sufficient Evidence
[11] Vaughn argues the police entrapped him, and therefore, there is insufficient
evidence to convict him of dealing in methamphetamine. ‘Entrapment exists
where an otherwise law-abiding citizen is induced through police involvement
to commit the charged crime.” Lahr v. State, 640 N.E.2d 756, 760 (Ind. Ct.
App. 1994), trans. denied. Our legislature has defined entrapment::
(a) It is a defense that:
(1) the prohibited conduct of the person was the product of
a law enforcement officer, or his agent, using persuasion or
other means likely to cause the person to engage in the
conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit
the offense does not constitute entrapment.
Ind. Code § 35-41-3-9.
[12] If a defendant asserts the defense of entrapment and establishes police
inducement, then the burden of proof shifts to the State. Dockery v. State, 644
N.E.2d 573, 577 (Ind. 1994). The State must either disprove police inducement
by demonstrating beyond a reasonable doubt that “the defendant’s prohibited
conduct was not the product of the police efforts,” McGowan v. State, 674
N.E.2d 174, 175 (Ind. 1996), reh’g denied, or establish the defendant’s
predisposition to commit the crime. Dockery, 644 N.E.2d at 577. If the State
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does not meet its burden of proof, then entrapment has been established as a
matter of law. Id.
[13] “We review a claim of entrapment using the same standard that applies to other
challenges to the sufficiency of evidence.” Id. at 578. We consider only the
evidence supporting the verdict and draw all reasonable inferences therefrom.
Id. We neither reweigh the evidence nor judge witness credibility. Id. If the
record contains substantial evidence of probative value that would have
permitted a reasonable trier of fact to infer guilt beyond a reasonable doubt,
then we will uphold a conviction. Id.
[14] Vaughn contends the police induced his behavior by using a confidential
informant to set up the controlled buy. The CI, in return for helping police
arrest drug dealers, would receive consideration on his open case. Vaughn
asserts the CI was an agent of law enforcement and because the police
controlled the buys, provided the money, and set up surveillance of the buy, this
all induced Vaughn to commit the crime of dealing in methamphetamine.
[15] Accordingly, the burden shifted to the State to either disprove inducement or
demonstrate Vaughn was predisposed to commit the crime. See McGowan, 674
N.E.2d at 175 (holding State must disprove inducement or prove
predisposition). The State argues Vaughn “was merely presented with the
opportunity, which he took full advantage of[.]” (Appellee’s Br. at 15.) Indiana
Code § 35-41-3-9(b) states, “conduct merely affording a person an opportunity
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to commit the offense does not constitute entrapment.” However, our Indiana
Supreme Court has explained:
Part (b) of the statute is explanatory of the level of police activity
that would be necessary to support the entrapment defense but
this section does not negate the requirement of the necessary
predisposition on the part of the accused. We have consistently
held that if the accused had the predisposition to commit the
crime and the police merely afforded him an opportunity to do
so, then the defense of entrapment is not available.
Baird v. State, 446 N.E.2d 342, 344 (Ind. 1983). Thus, if the police merely
afforded a citizen an opportunity to commit a crime, then the State may not
have induced that citizen’s criminal behavior, see, e.g., Shelton v. State, 679
N.E.2d 499, 502 (Ind. Ct. App. 1997) (evidence police “merely placed the deer
decoy off the road where the Sheltons could see it” was not adequate to
demonstrate inducement sufficient to entitle Sheltons to jury instruction on
entrapment), but it does not relieve the State of its obligation to demonstrate a
defendant’s predisposition.
[16] First, we look to whether the police induced Vaughn to deal
methamphetamine. The CI contacted Vaughn only twice before Vaughn
offered to sell to him. Additionally, Vaughn set the price of the drugs, set up the
time and location of the deal, brought the drugs, and completed the deal.
However, that is not the end of our inquiry. The State was also required to
prove Vaughn was predisposed to commit dealing in methamphetamine. See
Price v. State, 397 N.E.2d 1043, 1046 (Ind. Ct. App. 1979) (“Insomuch as the
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idea of the charged illegal conduct originated with the police, the State has the
burden of proving a predisposition on the part of defendant to engage in the
illegal activities.”).
[17] “Whether a defendant was predisposed to commit the crime charged is a
question for the trier of fact,” and the State must prove that predisposition
beyond a reasonable doubt using “evidence subject to the normal rules of
admissibility.” Dockery, 644 N.E.2d at 577. Several factors may be relevant to
determining whether a defendant was predisposed to commit a crime:
(1) the character or reputation of the defendant; (2) whether the
suggestion of criminal activity was originally made by the
government; (3) whether the defendant was engaged in criminal
activity for a profit; (4) whether the defendant evidenced
reluctance to commit the offense, overcome by government
persuasion; and (5) the nature of the inducement or persuasion
offered by the government.
Kats v. State, 559 N.E.2d 348, 353 (Ind. Ct. App. 1990), trans. denied. Additional
facts that suggest criminal predisposition include familiarity with jargon and
prices, engaging in multiple transactions, or arranging future transactions. Riley
v. State, 711 N.E.2d 489, 494 (Ind. 1999).
[18] Vaughn argues the multiple requests by the CI persuaded him to sell the
methamphetamine. However, the State provided testimony that Vaughn was
known to sell drugs. The CI testified he was connected to Vaughn through a
friend who had previously purchased drugs from Vaughn. (Tr. Vol. III at 223.)
Further, the CI contacted Vaughn only twice before Vaughn willingly offered to
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sell him methamphetamine. State’s Exhibit 33-A contained Facebook messages
between Vaughn and the CI, Vaughn sent multiple pictures of
methamphetamine, understood the slang terms used for the methamphetamine,
and continued to message the CI about buying from him after they initially
failed to figure out a time to meet. See Henrichs v. State, 455 N.E.2d 599, 601
(Ind. 1983) (defendant’s understanding of drug trafficking terms and readiness
to sell drugs showed a predisposition).
[19] Because the evidence demonstrates Vaughn was predisposed to commit crime,
and the police did not induce Vaughn into dealing in methamphetamine, but
rather provided him an opportunity, we are not convinced Vaughn was
entrapped into committing his offense. See Wallace v. State, 498 N.E.2d 961, 965
(Ind. 1986) (entrapment defense failed when there was sufficient evidence to
demonstrate the defendant acted on his own accord).
3. Appropriate Sentence
[20] Vaughn argues his sentence is inappropriate in light of his character and the
nature of his offenses. Our standard for reviewing this issue is well settled.
We “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and
the character of the offender.” Ind. Appellate Rule 7(B).
“Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special
expertise of the trial bench in making sentencing decisions,
Appellate Rule 7(B) is an authorization to revise sentences when
certain broad conditions are satisfied.” Shouse v. State, 849
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N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
quotation marks omitted). “[W]hether we regard a sentence as
appropriate at the end of the day turns on our sense of the
culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
In addition to the “due consideration” we are required to give to
the trial court’s sentencing decision, “we understand and
recognize the unique perspective a trial court brings to its
sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
(Ind. Ct. App. 2007).
Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.
denied. The appellant bears the burden of demonstrating his sentence is
inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),
trans. denied. Although Vaughn appeals only his sentence for Level 3 felony
dealing in methamphetamine, “[o]ur review of the sentence should focus on the
forest - the aggregate sentence - rather than the trees - consecutive or
concurrent, number of counts, or length of the sentence on any individual
count.” Gleason v. State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012).
[21] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). A
Level 3 felony is punishable by a fixed term between three and sixteen years,
with the advisory sentence being ten years. Ind. Code § 35-50-2-5(b) (2014).
The trial court sentenced Vaughn to fourteen years; thus, he received a sentence
between the advisory and the maximum. A Level 6 felony is punishable by a
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fixed term between six months and two-and-one-half years. Ind. Code § 35-50-
2-7(b) (2016). The trial court sentenced Vaughn to two years; thus, he received
a sentence between the advisory and the maximum. The sentence for a Class C
misdemeanor is punishable by a fixed term of not more than sixty days. Ind.
Code § 35-50-3-4 (1978). The trial court sentence Vaughn to sixty days;
therefore, he received the maximum sentence.
[22] Vaughn was arrested after selling methamphetamine to a CI. Vaughn used
social media and text messages to communicate with the CI and set up the deal.
There is nothing particularly egregious regarding the nature of Vaughn’s
offense, however his character does warrant an aggravated sentence.
[23] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.
App. 2013). Vaughn has a lengthy juvenile record including adjudications for
battery, intimidation, and receiving stolen property. Vaughn also has adult
convictions of escape, criminal confinement, possession of a controlled
substance, theft, and auto theft. Vaughn argues his difficult childhood should
entitle him to a more lenient sentence. However, “evidence of a difficult
childhood is entitled to little, if any, mitigating weight.” Bethea v. State, 983
N.E.2d 1134, 1141 (Ind. 2013). Given Vaughn’s poor character as
demonstrated by his many adult convictions and juvenile adjudications, we
cannot say Vaughn’s sentence is inappropriate. See Clark v. State, 26 N.E.3d
615, 619 (Ind. Ct. App. 2014) (defendant’s extensive criminal history showed
bad character and allowed for aggravated sentence), trans. denied.
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Conclusion
[24] We conclude any evidence improperly admitted was harmless error because the
improperly admitted evidence was cumulative of other properly admitted
evidence. Additionally, the State provided sufficient evidence to demonstrate
Vaughn was not entrapped. Finally, Vaughn’s poor character allowed for an
aggravated sentence and thus his sentence was not inappropriate. Accordingly,
we affirm.
[25] Affirmed.
Crone, J., and Pyle, J., concur.
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