Opinion
24A-CR-821
11-21-2024
De'Mario Streeter, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT James Harper Harper & Harper, LLC Valparaiso, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Porter Superior Court The Honorable Jeffrey W. Clymer, Judge Trial Court Cause No. 64D02-2311-F6-10873
ATTORNEY FOR APPELLANT James Harper Harper & Harper, LLC Valparaiso, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE.
[¶1] De'Mario Streeter appeals his convictions for aiding in attempted fraud as a level 6 felony and aiding in false informing as a class B misdemeanor. He argues the trial court abused its discretion in making certain evidentiary rulings and that the State presented insufficient evidence to support his convictions. We affirm.
Facts and Procedural History
[¶2] In September 2023, Streeter, an inmate in the Porter County Jail, used the jail call system known as Telmate to communicate with Savannah Dempsey, whom he was dating. Telmate was run by a company named ViaPath, and the system (the "ViaPath Telmate System") allowed inmates to communicate with people outside the jail through phone calls or through the use of a tablet to send written messages and conduct video visits. Inmates were assigned PIN numbers, and people outside the jail could set up an account on an app to communicate with inmates.
[¶3] While he was in jail, Streeter exchanged messages with an account set up by Jaizon Vinson that used Dempsey's IP address from her apartment (the "Vinson/Dempsey Account"). On September 23, 2023, the following messages were exchanged between Streeter and Dempsey via the Vinson/Dempsey Account:
Viewing the evidence most favorable to the verdict, we refer to Dempsey as the individual Streeter was messaging through the Vinson/Dempsey Account. The jury heard evidence that another message Streeter sent to the Vinson/Dempsey Account contained the phrase "I love you Savannah." Transcript Volume II at 234. Also, on a separate occasion Streeter sent a message to the Vinson/Dempsey Account requesting fifty dollars for his commissary account and four minutes later, Dempsey deposited fifty dollars into his account. A reasonable trier of fact could infer from the evidence that Dempsey was the person with whom Streeter was communicating.
Streeter: Didn't mean to call you Savannah! Sorry Sabrina,. I can't even think str8. money getting sent today. Can you please go look up $800-900 iPads on amazon and see if they have any in stock and how long its going to take to get delivered.
Dempsey: . . . I seen one for like 926 the other ones like 6sum they got some MacBooks for 8sum I got prime so usually the next day or two.
Streeter: . . . I'll have john come get u Monday and take you after we sell that joint its all gone workout.
Streeter: Imma get us $1K by tomorrow. We gone get a macbook that cost like $900 Danny gone give us like $700-$750 for it:)
Streeter: Look at it this way, each account guarantee us $750 fasho fasho. So let's get busy. Dempsey: Uk I'm w you all the way.
Streeter: Awe yeah? Okay so that's cool. Whatever we get from the macbook I'm just take a couple hundred n u can keep the rest.
Streeter: If u get the rent paid thru that thing we can have ua a car like super son fr.
Dempsey: Ima give you a little of everything yk that. Ik ts would really help, and it would be for a couple months. It'll work out patience.
Dempsey: We got like $920 all together and I have a couple gift cards ima use them too that'll be like 30 more at least I think.
Pay a little more. Get something nice, So you lmk.
Streeter: Wym gimme a lil bit of everything? I knew that already n don't say a little of everything. Im making this shit happen so wym, I didn't like how u just said that tbh . . . We both making it happen. But I get wym. Aight tho cool. And no don't use anymore gift cards right now.
Exhibits Volume IV at 18-38.
[¶4] On September 24, the following messages were exchanged:
Streeter: Yeah I know. It's the same behind you. Hey let's order a MacBook today.
Dempsey: We can order today. Streeter: . . . okay we gone order today.
Dempsey: Ima order this one 850 overnight. I mean to ask for ds info that's all I need. &I got my brother if I NEED anything yk that. I won't need anything though im straight stg phat.
Streeter: Wait, before u order it make sure its not a refurbished macbook pro it needs it to brand new no refurbished at all. So go make sure its not that. And it needs to be shipped by amazon and sold by amazon.
Streeter: Okay. Thank u a lot for everything. I love you. Lmk wen the correct macbook ordered please. Make sure everything is correct.
Streeter: Make sure you home when it come. Know mfs be stealing packages n shit. Amazon has a policy where anything ordered on there its covered if stole but still.. If you don't got a police report they take like 3-5 days to get yo money back but people who go make a police report n have the copy of the report they send yo item back or yo money back the next day with the report. Somebody stole my camera when I ordered it. They sent me another one tho so I wasn't trippin fr. I love amazon lmao.
Dempsey: Ikik. Everything fina be fine. Everyone love amazon lol.Id. at 41-59.
[¶5] Shortly after that last message, at 5:00 p.m. on September 24, Dempsey ordered an Apple 2020 MacBook Air laptop to be delivered to her Portage, Indiana address. Dempsey paid $802.49 for the MacBook, based on an original price of $849 adjusted for tax and a discount she received. Dempsey messaged Streeter at 5:01 p.m., stating, "It'll be here sometime tomorrow." Id. at 61.
[¶6] On September 25, Streeter made a phone call, spoke with a male, and stated that he was having "[Dempsey] go to Danny's" and indicated that he had obtained "a thousand dollar Mac." Transcript Volume III at 10; State's Exhibit 29. Later that day, starting at 1:05 p.m., the following messages were exchanged:
Streeter: I kinda needed money for commissary but I'm cool, I ordered $40 worth stuff. And make sure to go to PPD first and then let them know what's going on. I wanna make sure everything good. I know u got it tho. Tomorrow we ah go to my home shop inna city. I love you a lot.
Streeter: Tell them you want a refund instead of item sent back. Love you.
Dempsey: Boy if you don't just stop and let me handle this [sh*t] you fina stress me. I got it, I know. Give me the info I need for the stop ina city and that's it ....
The State asserts that "the jury could reasonably infer" this to be an abbreviation for the Portage Police Department. Appellee's Brief at 20.
Exhibits Volume IV at 64-69.
[¶7] At 2:11 p.m., Dempsey called the Portage Police Department. When an officer responded, Dempsey reported that the MacBook she ordered from Amazon had been delivered to her address while she was away and that it had been stolen. She provided the officer with a picture from Amazon showing that the package was delivered to her apartment.
[¶8] At 3:31 p.m., Streeter began messaging Dempsey:
Streeter: . . . Its gone all workout I wanna pay him $300-500 Monday That money tomorrow orntge next day for YOU! I told u I just want a couple hundred n the rest yours ....
Dempsey: We fina handle all of it anyways so it's okay. Ima come thru everytime yk that bestieboo.
Dempsey: Hey you remember D? Give me his address please so I can have it for myself in case anything happens.
Streeter: D? Who tf is that? Give me more details.
Streeter: Lol awe yeah I know who u talm bout. Uhm I don't have his address but I'll tell u how to get there n the morning. Nothing gone happen. I honestly forgot the street number lmao idr if its 123 or 130th lmao I fr can't even think str8. Uhmmmm, call john n see what he doing tomorrow I'll have him n cal take it so u don't have to go. It's too dangerous ova there for u anyway tbh. We gone take care of it. N I gotta make sure he gone be there cause he be changing shit daily. Its cool tho we gone.
Streeter: Everything will get done tomorrow fasho I promise . . . Id. at 118-132.
[¶9] On September 26, Streeter began sending the following messages to Dempsey at 8:59 a.m.:
Streeter: We can go to D today also imma have u get his number to call and make sure he open. If he is he'll give u the address once you call.
Streeter: Take care business today especially the most important. I love you and I'll talk to you later <3.
Streeter: Call John to get d number and see ifntyey open today. He'll know.Id. at 133-138. At 10:17 a.m., Dempsey's phone called a number belonging to John Duane Ward, who was known to be associated with Streeter. Dempsey then messaged Streeter, indicated that she talked to "John" as Streeter had instructed, and that everything was "squared away[.]" Id. at 143-144. At 12:51 p.m., Dempsey's phone called a number that belonged to a business called Danny's Buyback that was located in Chicago. At 12:59 p.m., Streeter began sending the following messages to Dempsey:
Streeter: Okay bet bet and yeah I just got off the phone. And when y'all go it just need to be y'all two. Nobody else, tell him I said that too. Not his friends or nobody else. Just y'all.
Streeter: If he coming to get u with ppl in the car that's dead asf n I'm standing on it.
Streeter: If u got you car or yo moms you can just go. Make sure u got yo pipe. I don't want u around nobody going. Or in Gary at all . . . We finna start over tomorrow and get paid. I'm selling my green Xbox for $500 so that's cool too.
Dempsey: I'm going with my sister ce and we fina be just fine promise you you're right cause I'm not tryna be in a car full of mfs either and yk that's what it is.Id. at 147-154.
[¶10] At 1:39 p.m., Dempsey's phone called Danny's Buyback, and at 3:12 p.m., Dempsey's phone was located at Danny's Buyback. Beginning at 3:25 p.m., Dempsey's phone was located near the state line between Illinois and Indiana when the following messages were exchanged:
Dempsey: You want that 500 today?
Streeter: No I told you that already. My case hasn't even started yet he got $1500 for rn. How much did I get from it?
Streeter: Bro wtf is u doing and why the [f **k] u asking that
then stop replying, that's throwing me off fr. Tf u doing n where you at MF.
Dempsey: Okay w/e 7 I'm out rn. Yrbdwtm I stg ts so dumb. You talk to much fr like damn bro. You asking to many questions tb me don't ask questions. How much money you need?Id. at 169-178.
[¶11] At 6:57 p.m., Streeter called a phone number associated with Dempsey and the call was recorded. During the call, Dempsey said, "your special number is seven" and "that shit hit." Exhibits Volume V at 8. Streeter inquired, "so what was it we had, we had paid 850, right?" Id. Dempsey responded, "more like 8 and, with a coupon." Id. At 9:22 p.m., 9:36 p.m., 9:56 p.m., and 10:11 p.m., Dempsey placed a series of calls to Amazon.
[¶12] On September 27, Dempsey again contacted the Portage Police Department and then placed two more calls to Amazon. Dempsey reported the MacBook stolen to Amazon and requested a refund. That same day, an Amazon employee contacted the Portage Police Department concerning Dempsey's report of a stolen MacBook.
[¶13] On November 23, Streeter called Dempsey from the account of another inmate, and the call was recorded. Streeter instructed, "trust me and don't say nothing." Exhibits Volume V at 20. Dempsey replied, "it's a felony, that's what it is." Id. Streeter stated, "did that money drop or did you never get it?" and "it's not theft because we never got any money." Id. Streeter further explained that the "false [informing] might stick" but that was a misdemeanor. Id. He stated, "It's not going to be a theft charge or a fraud charge . . . Now, if they would have sent the money back? Then, yes and you woulda actually had it in your possession," but "the theft and the fraud is not going to stick." Id.
[¶14] On November 29, 2023, and as amended on December 21, 2023, the State charged Streeter with aiding in attempted fraud and aiding in attempted theft as level 6 felonies, and false informing as a class B misdemeanor. The court held a jury trial on February 5 and 6, 2024. Among other witnesses, the State presented the testimony of Portage Police Detective Nicole Heuberger who investigated Streeter's messaging and calling activity while incarcerated. Detective Heuberger testified regarding her familiarity with the Viapath Telmate System, how the jail uses the system, her personal experience in how to use the system, and her law enforcement access to the system through her own special log-in. After the State had already presented evidence with respect to the messages Streeter sent to Dempsey via the ViaPath Telmate System through Detective Heuberger's testimony, the State asked Detective Heuberger if she had also listened to recorded phone calls made by Streeter, and she responded affirmatively. When asked if the phone calls were "kept in the regular course of business by ViaPath Telmate[,]" Detective Heuberger responded affirmatively. Transcript Volume III at 4. Defense counsel then objected to any further testimony regarding the recorded phone calls "based upon Detective Heuberger's testimony that she does not have personal knowledge through this line of questioning of ViaPath Technologies." Id. at 5-
6. The court stated, "[t]he objection is that the witness lacks personal knowledge of how ViaPath or - not what the jail does but lacks personal knowledge of ViaPath. The objection is overruled. You may testify about the phone messages." Id. at 6. Detective Heuberger later explained that she was able to identify Streeter's "distinct voice" in each of the phone calls, and that she was also able to identify Dempsey's voice and Streeter's mother's voice as the individuals he was speaking to in certain phone calls. Id. at 101.
[¶15] Dempsey testified at trial under a grant of use immunity. On direct examination, the State asked Dempsey three very brief questions. She was asked if she ordered a MacBook computer from Amazon on September 24, 2023; if she reported that MacBook computer stolen; and if she requested a refund from Amazon. She simply answered "Yes" to all three questions. Id. at 128-129. On cross-examination, Streeter's counsel asked Dempsey the same three questions followed by the question, "Did Mr. Streeter force you in any way, shape, or form to order [the] MacBook Air?" Id. at 130. The State objected to that question arguing that it was "[o]utside the scope of direct." Id. The trial court sustained the objection, thereby halting cross-examination.
[¶16] At the conclusion of trial, the jury found Streeter guilty as charged. During sentencing, the trial court vacated the aiding in attempted theft conviction and sentenced Streeter to a two-year aggregate sentence.
Discussion
I.
[¶17] Streeter challenges two of the trial court's evidentiary rulings. Specifically, he asserts that the trial court abused its discretion in admitting the recordings of his jail phone calls and by limiting his cross-examination of Dempsey.
[¶18] As a general matter, the admission and exclusion of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs "where the decision is clearly against the logic and effect of the facts and circumstances." Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001). We may affirm a trial court's decision regarding the admission of evidence if it is sustainable on any basis in the record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh'g denied.
[¶19] Regarding the court's admission of recorded phone calls made by Streeter, Streeter contends on appeal that the State failed to properly authenticate the recordings pursuant to Ind. Evidence Rule 901. However, our review of the record reveals that during trial, Streeter did not cite Ind. Evidence Rule 901 or make any specific objection to the recordings on authentication grounds and only objected generally that Detective Heuberger lacked "personal knowledge" of "Viapath Technologies." Transcript Volume III at 5-6. As pointed out by the State, this trial objection "only states an objection under [Ind.] Evidence Rule 602." Appellee's Brief at 24. Streeter essentially concedes this point but responds that the two evidentiary rules "are closely related" and urges that his objection sufficiently "alerted the trial court of the need to consider the interplay between both rules." Appellant's Reply Brief at 7.
That rule provides in relevant part:
(a) In General. 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.
(b) Examples. The following are examples only, not a complete list, of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be, by a witness with knowledge.
That rule provides in relevant part: "A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter .... Evidence to prove personal knowledge may consist of the witness's own testimony...."
[¶20] It is well established that a party may not object on one ground at trial and raise a different ground on appeal. White v. State, 772 N.E.2d 408, 411 (Ind. 2002). This results in waiver of the issue on appeal. Id. The purpose of this rule is to ensure that a trial judge is fully alerted to the legal issue being raised. Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011). Based upon our review of the record, and contrary to Streeter's assertions, we do not believe the trial judge here was fully alerted to the authentication issue now being raised on appeal. Therefore, we conclude that Streeter has waived any error in the trial court's admission of the recorded phone calls on these grounds.
[¶21] Streeter also asserts that the trial court erred "when it limited the scope of [his] cross-examination of [Dempsey]." Appellant's Brief at 22. We note that trial judges retain wide latitude to impose reasonable limits on the cross-examination of witnesses based on concerns about, among other things, interrogation that is only marginally relevant. Kubsch v. State, 784 N.E.2d 905, 925 (Ind. 2003). The scope of cross-examination is "limited to the subject matter of the direct exam and matters affecting the credibility of the witness." Ind. Evidence Rule 611(b). "It includes all matters reasonably related to the issues put in dispute by the direct examination, and all inferences and implications arising from the testimony on direct examination." Stokes v. State, 908 N.E.2d 295, 301-302 (Ind.Ct.App. 2009), trans. denied. "Any matter that tends to elucidate, modify, explain, contradict, or rebut direct testimony is permissible during cross-examination." Id.
[¶22] Streeter argues that the question posed by defense counsel that Dempsey was not permitted to answer regarding his alleged lack of coercion tended to elucidate, modify, or explain her direct testimony and should have been allowed. Even assuming-without deciding-the trial court improperly limited Streeter's cross-examination of Dempsey, we find that any error was harmless. Violations of the right to cross-examine a witness are subject to harmless error analysis. Pierce v. State, 29 N.E.3d 1258, 1268 (Ind. 2015). We will not reverse a conviction for an error that does not affect the substantial rights of the defendant. Id. As we will explain more fully below, evidence of coercion, or lack thereof, by Streeter was not necessary to sustain his convictions based upon accomplice liability. Accordingly, we cannot say that reversal is warranted on this basis.
II.
[¶23] Streeter challenges the sufficiency of the evidence to support his convictions for aiding attempted fraud and aiding false informing. Specifically, he challenges the State's proof that he acted as Dempsey's accomplice. 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. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if there exists evidence of probative value from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.
Streeter argues, "assuming that [Dempsey] committed the underlying offenses-attempted fraud, attempted theft, and false informing-the [S]tate did not establish that [he] . . . aided, induced or caused" her to do so. Appellant's Brief at 17-18.
[¶24] Ind. Code § 35-43-5-4(a)(1) and (b)(2) provide that the crime of fraud occurs when a defendant "with the intent to obtain property . . . to which the person is not entitled, knowingly or intentionally: (A) makes a false or misleading statement, and . . . The pecuniary loss is at least seven hundred fifty dollars ($750) but less than fifty thousand dollars ($50,000)." Ind. Code § 35-44.1-2-3 provides that the crime of false informing occurs when a defendant "gives: (A) a false report of the commission of a crime; or (3) false information to a law enforcement officer that relates to the commission of a crime; knowing the report or information to be false." To convict Streeter on an accomplice theory of liability, the State was required to prove that he "knowingly or intentionally" aided, induced, or caused Dempsey to commit the offenses of attempted fraud and attempted false informing. Ind. Code § 35-41-2-4.
[¶25] "There is no bright line rule in determining accomplice liability; the particular facts and circumstances of each case determine whether a person was an accomplice." Jackson v. State, 222 N.E.3d 321, 337 (Ind.Ct.App. 2023) (citing Vitek v. State, 750 N.E.2d 346, 353 (Ind. 2001), reh'g denied), trans. denied. The court considers "four factors to determine whether a defendant acted as an accomplice: (1) presence at the scene of the crime; (2) companionship with another engaged in criminal activity; (3) failure to oppose the crime; and (4) a defendant's conduct before, during, and after the occurrence of the crime." Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012) (citing Vitek, 750 N.E.2d at 352). In seeking to convict a defendant as an accomplice, the State need not show that the defendant "'was a party to a preconceived scheme; it must merely demonstrate concerted action or participation in an illegal act.'" Griffin v. State, 16 N.E.3d 997, 1003-1004 (Ind.Ct.App. 2014) (quoting Rainey v. State, 572 N.E.2d 517, 518 (Ind.Ct.App. 1991)).
[¶26] The State presented evidence that Streeter actively participated with Dempsey in the scheme to defraud Amazon and lie to police. He told Dempsey to purchase the MacBook, he set the price range, and he asked her about delivery. He told her not to use gift cards for the purchase, told her when to buy the MacBook, and advised her to only buy a device that would be shipped and sold by Amazon. He told her where to take the MacBook to sell it, and he also advised her that she should make a police report that it was stolen to obtain a quicker refund. He further indicated what portion of the money he expected to receive for his concerted action and participation in the scheme. The evidence further demonstrated that, for the most part, Dempsey followed Streeter's exact instructions. Sufficient evidence supports Streeter's convictions as an accomplice.
[¶27] For the foregoing reasons, we affirm Streeter's convictions.
[¶28] Affirmed.
Mathias, J., and Kenworthy, J., concur.