Marcus Jayon Anderson v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 20, 2024
• Docket: 23A-CR-01645
• Status: Published

Opinion

FILED Dec 20 2024, 9:47 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Marcus Jayon Anderson, Appellant-Defendant

v.

State of Indiana, Appellee-Plaintiff

December 20, 2024 Court of Appeals Case No. 23A-CR-1645 Appeal from the Marion Superior Court The Honorable Shatrese M. Flowers, Judge Trial Court Cause No. 49D28-2012-MR-36110

Opinion by Judge Kenworthy Judges May and Vaidik concur.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 1 of 45 Kenworthy, Judge.

Case Summary [1] In the aftermath of George Floyd’s death while in Minneapolis police custody

in May 2020, there were protests and demonstrations in downtown

Indianapolis. As day turned to night on Saturday, May 30, the situation

downtown deteriorated—vandalism occurred, fires were set, and gunshots rang

out. Between 11:20 p.m. and 11:40 p.m., several crimes were committed within

a two-block area north of Monument Circle and east of the Indiana War

Memorial. 1 The State charged Marcus Anderson, Alijah Jones, and Nakeyah

Shields with the crimes. The three defendants had a joint jury trial.

[2] The jury found Anderson guilty of murder, 2 felony murder, 3 six counts of Level

3 felony armed robbery, 4 and two counts of Level 3 felony attempted armed

robbery. 5 The trial court vacated the murder conviction due to double jeopardy

1 The majority of the crimes occurred in the 400 block of Talbott Street. Talbott Street is between Pennsylvania and Delaware Streets, all north-south streets. The 400 block is north of Vermont Street and south of Michigan Street. Talbott Street is sometimes referred to in the record as “the alley.” 2 Ind. Code § 35-42-1-1(1) (2018). 3 I.C. § 35-42-1-1(2). 4 I.C. § 35-42-5-1(a)(1) (2017). 5 I.C. §§ 35-42-5-1(a)(1) and 35-41-5-1 (2014).

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 2 of 45 concerns and ordered Anderson to serve an aggregate sentence of 164 years on

the remaining counts. Anderson appeals his convictions and sentence, raising

the following issues:

1) Did the trial court err in allowing the State to add two counts of robbery days before the jury trial?

2) Did the trial court err in denying his request for extra voir dire time?

3) Did the trial court err in admitting social media evidence?

4) Is Anderson’s 164-year sentence inappropriate when considering the nature of his crimes and his character?

[3] We affirm.

Facts and Procedural History The Crimes 6

[4] Anderson, Jones, and Shields were with Dorian Murrell and another man 7

downtown the night of May 30. Murrell was Jones’ brother and Shields’

boyfriend. Anderson, Shields, and Murrell arrived together in Murrell’s car and

parked near Vermont and Talbott Streets. Anderson’s and Shields’ cell phones

6 For a more detailed recitation of the crimes, see the opinion in Jones’ separate appeal, also handed down on this date. Jones v. State, Cause No. 23A-CR-1644 (Ind. Ct. App. December 20, 2024); see also Shields v. State, Cause No. 23A-CR-1645 (Ind. Ct. App. December 20, 2024). 7 The State alleged this fifth person was involved in the crimes but was not able to identify him.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 3 of 45 were used in that general area between 11 p.m. and midnight. A car matching

the description of Jones’ car was also parked near Vermont and Talbott Streets

that night.

[5] Around 11:20 p.m., Amy Zandy parked on the first floor of a parking garage at

Vermont and Delaware Streets adjacent to her apartment building. While

Zandy was still in her car, she saw several people walking into the garage. One

was a woman wearing a brightly colored jacket who Zandy felt “was with that

group but was a little bit removed[.]” Tr. Vol. 5 at 194. The group approached

her car and a man in a ski mask holding a gun knocked on the window and told

Zandy to give him her keys. When Zandy opened the driver’s side door to

comply, all the doors unlocked. Multiple people entered the car and rummaged

through Zandy’s things.

[6] The person who entered the front passenger side pulled Zandy down onto the

center console by the collar of her shirt and held her there while the man with

the gun repeated his demand for her keys. Zandy told them where the keys

were and to “[t]ake whatever you want.” Tr. Vol. 5 at 181. Most of the group

left, taking Zandy’s cellphone, wallet, and makeup bag, but leaving her keys.

The man in the passenger seat remained, and he and Zandy “just star[ed] at

each other long enough” that Zandy finally said, “I don’t know what to do right

now.” Id. at 182. The man said, “[I]t’s okay baby girl,” and got out of the car.

Id. at 185. The group walked north on Delaware Street from the parking garage

toward Michigan Street. Zandy left the parking garage to drive to a friend’s

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 4 of 45 house and waved down a police officer about a block away from the garage to

make a brief report.

[7] Kimberly Eggers went to Monument Circle to meet up with friends but could

not find them and left the area because it was “pretty crazy.” Tr. Vol. 4 at 28.

She started walking north and called a friend to come pick her up. On

Michigan Street between Pennsylvania and Delaware Streets, Eggers turned

around when she heard someone behind her say, “[H]ey.” Id. at 32. Four men

Eggers did not know surrounded her and one hit her in the face. One man took

her cellphone out of her hand, and another took her backpack. A man with

dreadlocks hit her again and she fell to the ground, losing her glasses. The men

kicked her several times before walking west on Michigan Street toward a man

on a bike and a person in a bright jacket. Eggers called out, asking them to give

her things back. The man with the dreadlocks turned around, and Eggers saw

what she thought was a crowbar in his hand. She then ran the other way.

Surveillance video obtained from a nearby building showed the robbery

occurred around 11:30 p.m.

[8] Sofia Fuentes and Saige Mitchell decided to leave downtown when they

“started to see things getting broken into.” Tr. Vol. 4 at 209. While they tried to

find their way back to their car, Fuentes was live streaming on Instagram.

When Fuentes and Mitchell were near Zandy’s parking garage, they heard—

and the video captured the sound of—gunshots. They “freak[ed] out,” headed

in another direction, and ended up on Vermont Street near Talbott Street. Id. at

210.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 5 of 45 [9] Around this same time, Jared Sarr, Byron Morris, Alejandro Thompson, and

Abbey Bell parked in a lot on Talbott Street behind an apartment building to

visit Sarr’s friend. Thompson noticed four men approaching and Sarr shouted

at everyone to run.

[10] Sarr ran into the apartment building, but Morris, Thompson, and Bell were

thrown to the ground and told to empty their pockets. Two men started kicking

Thompson while another man “was in a tussle” with Bell over her cellphone.

Tr. Vol. 4 at 86. The man tussling with Bell fired a shot into the ground near

Bell when she could not remember her Apple ID. Morris was also being yelled

at to enter his Apple ID into his phone. Bell said her attacker was wearing all

black and a ski mask. Morris recalled one of the men wearing a COVID-style

facemask, a red baseball cap, and a black sweatshirt; a second man had

dreadlocks and was wearing a facemask and a white t-shirt. Bell and Morris

saw two firearms among the men. 8

[11] Fuentes and Mitchell “stumbled upon [the] robbery going on” on Talbott

Street. Tr. Vol. 4 at 210. They saw three or four masked men standing over “a

bunch of people that were on the ground, and one of them had a gun.” Tr. Vol.

5 at 205. The man with the gun was wearing a white shirt and had dreadlocks.

He yelled to Fuentes and Mitchell to get down and waved the gun toward the

ground. The men went through their pockets after they laid on the pavement

8 Thompson did not testify at trial.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 6 of 45 face down, and someone fired a shot near Mitchell’s head. The men ran north

toward Michigan Street when they saw police lights in the distance. Bell

grabbed her cell phone back as the men started running, but the men took

Morris’ cellphone, wallet, and electric cigarette vape; Thompson’s cellphone

and wallet; and Fuentes’ backpack with Mitchell’s car keys in it. They took

nothing from Mitchell personally. Morris estimated the robbery lasted three to

five minutes.

[12] Sarr came out of the apartment building and summoned Morris, Thompson,

and Bell inside. Fuentes and Mitchell ran south toward Vermont Street.

Fuentes called 9-1-1 to report the robbery. As Fuentes and Mitchell stood at the

corner of Pennsylvania and Vermont Streets, they heard two or three gunshots

in the area they had come from. Sarr, Morris, and Bell also heard gunshots

shortly after entering the apartment building.

[13] Soon after hearing the gunshots, Fuentes and Mitchell saw an ambulance and

police cars head toward Talbott Street and decided to go back and tell police

they had just been robbed, thinking it might be “a part of whatever had just

happened.” Tr. Vol. 4 at 217. Returning to Talbott Street “[m]aybe seven

minutes” after they left, they saw someone face down on the ground who had

not been there before. Id. at 218.

[14] Christopher Beaty lived in the Colonial Apartments at the corner of Delaware

and Vermont Streets. At 11:35 p.m., Beaty sent a Snapchat message—his last

outgoing message that day. At 11:36 p.m., Beaty left his apartment through the

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 7 of 45 Delaware Street entrance and turned right, walking toward Vermont Street. He

was holding his cellphone in his hand. Shields was standing on Vermont Street,

and as Beaty walked by, he told her to be safe. Shields said shortly after that

interaction she heard gunshots come from Talbott Street and ran. The body

Fuentes and Mitchell saw lying face down when they returned to Talbott Street

was Beaty’s. He had been shot multiple times.

[15] Hearing about the property damage occurring downtown, Kiran Sunkara went

to check on his office. Finding no damage, Sunkara left the office about 11:10

p.m. and walked to his car, parked in the 400 block of Talbott Street facing

north with Vermont Street immediately behind. He left his backpack in the car

and then walked to a nearby mailbox to mail a check. The walk to the mailbox

from his car took seven to ten minutes. Sunkara returned to his car, buckled

up, and locked his doors. Within a few seconds, two men came from behind

toward his car. One man—wearing a dark-colored shirt—approached the

driver’s side and told Sunkara to get out. The other man—wearing a light-

colored shirt—approached the passenger side and pointed a gun, telling

Sunkara to get out of the car and tapping the gun on the windshield. Sunkara

reversed his car quickly onto Vermont Street and sped away. As he was

reversing, a shot was fired at his car. He did not see anyone else in the alley

during this incident. Sunkara did not immediately contact police.

The Investigation

[16] Detective Stephen Smalley of the Indianapolis Metropolitan Police Department

(“IMPD”) was the lead investigator of the Beaty murder. He responded to the Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 8 of 45 call of a person down in the 400 block of Talbott Street at about 11:40 p.m. on

May 30. He found Beaty face down on the street, head pointed south. No

surveillance cameras covered this block and there were no eyewitnesses to the

shooting. Fuentes, Mitchell, Morris, Thompson, and Bell had remained nearby

and spoke with investigators at the scene. Bell provided her cell phone for

testing because one of the perpetrators had grabbed it.

[17] Crime scene specialist Kaylee Schellhaass responded to the scene in the early

morning hours of May 31. Schellhaass collected two bullet casings from the

street. She also found Beaty’s black iPhone north of his body. She collected

swabs from Beaty’s and Bell’s phones. Schellhaass returned to the 400 block of

Talbott Street on June 1 and collected three additional casings reported by a

passerby.

[18] A little over two hours after Beaty’s body was found, Murrell was shot at

Monument Circle in an unrelated incident. Murrell was taken to Eskenazi

Hospital where he died from his injuries. Anderson, Jones, and Shields were

with Murrell when he was shot and made their way to the hospital. Detectives

investigating the Murrell shooting spoke with Jones at the hospital and noticed

a man wearing a brightly colored jacket who identified himself as “Marcus.”

[19] On the afternoon of May 31, David Munoz contacted police. Around noon on

May 30, he had parked his car on the first floor of the same garage where

Zandy was robbed. When he returned to his car the next day, the driver’s side

window was shattered. Munoz started to clean his car but stopped when he

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 9 of 45 found a bullet among the debris. Officers recovered the bullet and a casing

from the car. On June 1, Sunkara contacted police after reading about Beaty’s

death. Police recovered a bullet from the passenger-side engine compartment of

Sunkara’s car.

[20] Dr. Christopher Poulos, chief forensic pathologist at the Marion County

Coroner’s Office, examined Beaty’s body. He identified four gunshot wounds

to the back of Beaty’s body and recovered bullets from two of the wounds.

Beaty’s body also showed evidence of blunt force injuries. Dr. Poulos

acknowledged these injuries “could be explained by a fall after being shot” but

believed it was “more probable than not that they were the result of a physical

altercation.” Tr. Vol. 4 at 23–24. He explained, “[W]hen we have a fall . . . I

expect to see [injuries] in one plane, [but] in this case, we have more than one

area.” Id. at 24. Dr. Poulos determined Beaty’s cause of death was multiple

gunshot wounds and his manner of death was homicide.

[21] Timothy Spears, a forensic firearms examiner, examined the five casings

recovered from Talbott Street, the two bullets recovered from Beaty’s body, the

bullet and casing found in Munoz’s car, and the bullet recovered from

Sunkara’s car. Detective Spears determined all the casings came from the same

firearm and all the bullets came from the same firearm. 9 A firearm associated

with these crimes was never recovered.

9 Detective Spears could not conclusively say the casings and bullets all came from the same firearm.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 10 of 45 [22] Detective Ted Brink was assigned to investigate the Zandy robbery. Detective

Brink spoke with Zandy on June 1, and later obtained high-quality surveillance

video from the parking garage. The video shows five people—a woman and

four men—walking into the parking garage and approaching Zandy’s car. They

are all wearing surgical gloves and the men are each wearing some sort of face

covering. The woman—later identified as Shields—is wearing a jacket with

bright red, yellow, blue, and green blocks of color. One man—later identified

as Murrell—is wearing a red baseball hat and Tommy Hilfiger sweatshirt;

another man—later identified as Anderson—has shoulder-length dreadlocks

and is wearing jeans and a white t-shirt with a graphic on it. Both Murrell and

Anderson are wearing medical face masks. Another man—later identified as

Jones—is wearing a dark long-sleeved shirt, black pants with white stripes

down the side, black shoes with a white sole, and a ski mask. The fifth

unidentified person is wearing a Champion sweatshirt and has something

wrapped around the bottom half of his face.

[23] The video shows all five initially passing by the car and then the four men

returning and robbing Zandy. Murrell passes something to Jones, who then

knocks on the driver’s side window and shows a gun. Murrell opens the

driver’s door, leans in and pulls items out; Jones opens the back driver’s side

door and pulls additional items out. Anderson fully enters the front passenger

side of the car and stays for about forty-five seconds. After comparing the

Zandy robbery video to reports, pictures, and videos from other crimes and

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 11 of 45 events that occurred on May 30, Detective Brink contacted Detective Smalley

to say he believed their investigations were related.

[24] Police created “be-on-the-lookout” fliers (“BOLOs”) containing still photos

taken from the video, information about the time and date of the offense, and

contact information. The BOLOs were released to the media on June 4.

Several people contacted IMPD after seeing the BOLOs. Among them,

Fuentes and Morris each told Detective Smalley the suspects depicted were the

same people who robbed them on Talbott Street. Eggers also saw the BOLOs

and recognized the individuals depicted as the men who attacked her, but she

did not report the crime against her until 2022. Latanya Lewis—who had

known Jones since he was in junior high school—saw the BOLOs and reported

Jones as one of the suspects. Officers investigating Murrell’s death recognized

the clothing on one of the suspects as matching what Murrell was wearing at

the time he was shot.

[25] Armed with the Zandy robbery video, surveillance video from various buildings

around the area, Fuentes’ livestream video, and tips from the BOLOs, among

other things, Detective Smalley managed to identify four of the suspects as

Anderson, Jones, Shields, and Murrell and follow their movements around

Vermont and Talbott Streets on May 30. Detectives then gathered additional

evidence, including video of cars matching the description of Murrell’s and

Jones’ cars parked near Vermont and Talbott Streets during the incidents, the

subjects’ cell phone location data, and articles of clothing collected during a

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 12 of 45 search of Jones’ apartment. 10 In addition, Zandy identified Anderson from a

photo array Detective Brink presented to her as the person in the passenger seat

who held her down during the robbery.

[26] Detective Smalley searched the suspects’ social media accounts and got a

search warrant for records from their Facebook accounts. His review of those

records revealed several private message conversations seemingly discussing the

crimes. On June 2, 2020, Anderson sent Jones a message asking if he could

stay with him and get rides to and from work. Jones replied, “That ain’t no

good idea you need to be hiding out and sh*t from the other night . . . . Aye

you need to lay low get out of town or something I just seen the report from

that dude. . . . Ima send it to you but you gotta delete our whole message

thread and all that sh*t.” Ex. Vol. 1 at 193–94. Anderson asked, “What dude,”

and Jones replied, “N**** from the alley.” Id. at 194. On June 4, Anderson

sent Shields a message stating, “Aye somebody wanna buy that gun. Ask bro

do he wanna sell it.” Id. at 190. Shields responded, “Don’t talk like that on my

phone. . . . I don’t know what you talking about.” Id. Anderson replied, “My

bad u right.” Id. On June 10, Anderson sent a message to an individual named

Sanders stating, “I need to move down there. Tbh I’m in a lil trouble up here

and I def need to get tf lost.” Id. at 198. They also shared screenshots of the

10 When the swabs Schellhaass collected from Beaty’s and Bell’s phones were tested for DNA, Anderson, Jones, Shields, and Murrell were excluded as contributors of DNA recovered from the phones.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 13 of 45 BOLOs and a social media post and news stories about Beaty’s murder with

each other.

[27] Shields and Anderson both spoke with Detective Smalley. Both admitted being

downtown on May 30 in the company of Murrell. Shields said she was “at the

end of the alley where Chris Beaty was murdered . . . standing there by a car

talking to [Murrell].” Tr. Vol. 6 at 9. Beaty walked by, smoking a blunt.

Shields commented the blunt “seemed nice” and Beaty told her to “be safe out

tonight because it’s crazy out.” Id. Shortly after, Shields heard a gunshot and

ran. Anderson said he walked through a parking garage and “interacted with

someone” that night. Id. at 12. Shields and Anderson were unable to leave

downtown because the location where their car was parked was “blocked off by

police and crime scene tech.” Id. at 10. They were both with Murrell when he

was shot and went to the hospital to be with him.

Pretrial Proceedings

[28] In August 2020, the State charged Anderson with Level 3 felony armed robbery

and Level 3 felony criminal confinement arising out of the Zandy robbery (the

“Zandy case”). Jones was charged on the same date with crimes related to the

Zandy robbery.

[29] In December 2020, the State charged Anderson by information with one count

of murder, one count of felony murder, four counts of armed robbery related to

Bell, Morris, Thompson, and Fuentes; two counts of attempted armed robbery

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 14 of 45 related to Mitchell and Sunkara; and one count of pointing a firearm 11 at

Thompson (the “MR case”). The State requested and was granted a no contact

order prohibiting Anderson from contacting the victims and witnesses,

including Zandy. In June 2021, Jones and Shields were indicted by a grand

jury for crimes committed on May 30, 2020. 12 Jones’ and Shields’ cases were

set for jury trial alongside Anderson’s.

[30] At a January 2022 pretrial conference, the MR case was continued as to all

three defendants, and Anderson requested the Zandy case “track the [MR]

case” and be continued as well. Tr. Vol. 2 at 8. And in multiple written

motions to continue filed with both the Zandy and MR case numbers,

Anderson noted the Zandy case was “tracking the MR cause.” See Appellant’s

App. Vol. 2 at 103, 136.

[31] In August 2022, the State moved to join for trial the Zandy case and the MR

case, alleging the charges “are all part of a single scheme or plan and are a

series of connected acts.” Appellant’s App. Vol. 2 at 158. The trial court held a

hearing at which the State explained:

11 The trial court ultimately granted a motion for judgment on the evidence as to the pointing a firearm charge and it was not submitted to the jury. 12 Jones was charged with felony murder, four counts of Level 3 felony armed robbery (for allegedly taking property from Morris, Thompson, Bell, and Fuentes), and two counts of Level 3 felony attempted armed robbery (for allegedly attempting to take property from Mitchell and Sunkara). Shields was charged with felony murder, five counts of Level 3 felony armed robbery (for allegedly taking property from Morris, Thompson, Bell, Fuentes, and Zandy) and one count of Level 3 felony attempted armed robbery (for allegedly attempting to take property from Mitchell).

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 15 of 45 [All charges] stem from multiple robberies that occurred in the downtown area within a 25- to 30-minute span, starting from the first robbery to the final. Additionally, they all occur within a one block radius. . . . [I]t’s essentially the same case, the same evidence, and all of these cases are intertwined with one another, with the same witnesses. And so for efficiency, we would ask that the . . . cases be joined.

Tr. Vol. 2 at 18. Anderson objected:

I understand the State’s argument that . . . the substance of these allegations do all occur within a very close[] geographic area as well as a very close time period.

***

[In] bringing this case together and trying all of these robberies together, essentially the State would be asking a jury to make a propensity argument of well, we have evidence of all these other robberies, we have evidence of all these things that were happening, so therefore that makes it more likely that [Anderson] committed a murder because there were other incidents that were happening at the same time.

Id. at 20. The trial court took the matter under advisement.13

[32] In the summer of 2022, Eggers contacted police to report she had been robbed

on May 30, 2020. The State had known of the Eggers robbery for some time

because it was visible on surveillance video but did not know Eggers’ identity.

13 The State filed the same motion with respect to Jones’ two cases, and Jones also objected.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 16 of 45 Once Eggers made a report, the State disclosed her identity to the defendants,

and Anderson took Eggers’ deposition in the fall of 2022. On May 9, 2023—

with trial set to begin on May 22—the State moved to amend Anderson’s

charges in the MR case to add a count of Level 3 felony robbery related to the

Eggers robbery (the “Eggers count”). 14

[33] At a pretrial conference on May 10, 2023, the trial court denied the State’s

request to join the Zandy case and confirmed Anderson was set to be tried on

the MR case jointly with Jones and Shields beginning May 22. On May 17, the

State amended its motion to amend, still seeking to add the Eggers count and

now also seeking to add a count of Level 3 felony armed robbery related to the

Zandy robbery (the “Zandy count”). 15 The trial court considered this motion at

the final pretrial conference on May 18.

[34] Anderson objected to the amendment with respect to the Zandy count because

the court had denied the motion to join the Zandy case and the motion to

amend “is essentially the same request[.]” Tr. Vol. 2 at 74. He objected to the

amendment with respect to the Eggers count for several reasons. One, he

believed Eggers’ identification of him after she had reviewed the probable cause

affidavit and media coverage was “problematic” and “would not be

admissible.” Id. Two, the addition of the count was “just for the basis of

14 The State also moved to add a count related to the Eggers robbery to Jones’ and Shields’ cases. 15 The State also moved to add a count related to the Zandy robbery to Jones’ case.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 17 of 45 propensity[.]” Id. And three, the motion to amend was “very belated[.]” Id.

Even though he had deposed Eggers, he was “not given formal notice of the

charging decision until . . . about a week ago.” Id.

[35] The State responded that Anderson had known of the State’s intention to try

the Zandy and MR cases together since its August 2022 motion to join. The

State also noted Shields was already charged with robbery of Zandy and “it

would be confusing for the jury . . . to hear evidence about this particular charge

but only be permitted to deliberate on it with regard to [Shields].” Id. at 75. As

for the Eggers count, the State emphasized the crime had been detailed in the

probable cause affidavit even though Eggers’ identity was unknown at the time

Anderson was charged. Her identity was immediately shared with the defense

when the State learned of it and Anderson deposed her, so “they have had

informal notice, if not formal notice.” Id. at 77.

[36] The trial court granted the motion and allowed the State to add the Eggers and

Zandy counts.16 Anderson did not request a continuance. The trial court later

granted the State’s motion to dismiss the Zandy case.

16 Anderson filed a motion in limine seeking to limit any reference to the Zandy and Eggers robberies, among other things. Following the trial court’s grant of the State’s motion to amend, Anderson noted this request was moot. See Tr. Vol. 2 at 115. Anderson did make a continuing objection at trial to all evidence regarding the Zandy charge. See Tr. Vol. 3 at 241–42.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 18 of 45 The Trial

[37] The joint jury trial began on May 22, 2023. Before calling the prospective

jurors into the courtroom, the trial court reviewed the jury selection procedure:

[T]he Court will allow each side for the first round to be 30 minutes. Each side will have 30 minutes for the first round.

For the second round, each side will have 20 minutes, just so you all know. Each side will have 20 minutes. I do challenges for cause at the end of each round. I anticipate that we likely will have to voir dire people individually at the bench.

. . . I will seat 18 for each round. Each round will have 18. We will fill up the jury box.

Tr. Vol. 3 at 6. Each side had twelve peremptory challenges.

[38] For the first round of questioning, Jurors #1 through #9 were seated in the

front row of the jury box and Jurors #10 through #18 were seated in the back

row. The State used its thirty minutes, followed by Anderson’s, Jones’, and

then Shields’ counsel, each with ten minutes. With less than two minutes of

Shields’ time remaining, Shields’ counsel asked, “[I]f . . . Defendant does not

take the stand, raise your hand if you think that they’re guilty, and that’s why

they’re not going to take the stand?” Tr. Vol. 3 at 90. The record reflects two

unidentified jurors commented, and then time was called. Anderson’s counsel

immediately asked to approach the bench, and counsel and the court had the

following conversation:

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 19 of 45 [Anderson’s counsel]: Judge, I was just asking, based on that last question, seeing as how literally the entire back row raised their hands, we would have additional time to question them for cause.

The Court: No, you may not.

[Anderson’s counsel]: Okay, I – just for the record, I think that the defense would benefit from having more opportunity to question those particular jurors for cause, as most of them indicated that they did want to hear from our clients . . . .

The Court: But I think we make a statement that – and they’ll be given instructions.

Id. at 91–92. Jurors #3, 5, 9, 14, 15, and 18 from this first panel were seated on

the jury.

[39] Over twenty witnesses testified at trial. Zandy testified about the robbery,

acknowledged she had selected Anderson from a photo array, and identified

him in court, albeit reluctantly. Zandy said she was “certain in [her] answer,”

but “it was a very uncomfortable question for [her]” because she felt bad “for

literally everybody involved.” Tr. Vol. 5 at 201. The State introduced more

than 150 exhibits, including certified business records from Facebook of

communications involving Anderson, Jones, and Shields. Detective Smalley

explained the process of filing a preservation request, obtaining a search

warrant, and reviewing the records produced. When the State offered the

Facebook records, Anderson objected, claiming the records had not been

sufficiently authenticated. The trial court admitted the records over objection. Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 20 of 45 [40] The jury found Anderson guilty of all charges. 17

Sentencing

[41] The presentence investigation report prepared for Anderson’s sentencing

reflects he has no known juvenile record, but four arrests as an adult, with one

felony conviction for robbery resulting in bodily injury and one misdemeanor

conviction for domestic battery. Anderson was incarcerated from July 2018 to

January 2020 on the felony conviction and then released to probation. He was

on probation at the time of these offenses. While in Marion County Jail in this

case, Anderson had two reported incidents, including assault. After being

moved to the Indiana Department of Correction (“DOC”), he had two conduct

incidents. Anderson provided a sentencing memorandum to the trial court,

proffering the following mitigating factors: Anderson has a history of childhood

trauma; he has mental health diagnoses and untreated substance use disorder;

his age at the time of the offense; and his character and attitudes suggest he is

unlikely to commit another crime.

[42] Eggers testified at the sentencing hearing, explaining the significant impact the

incident had on her, but also expressing her forgiveness and requesting a

sentence that is “fair, yet not harsh, because I believe . . . grace is what bears the

17 Jones was found guilty of felony murder, six counts of Level 3 felony armed robbery (Morris, Thompson, Bell, Fuentes, Zandy, and Eggers), and two counts of Level 3 felony attempted armed robbery (Mitchell and Sunkara). He was sentenced to 164 years. Shields was found guilty of felony murder, six counts of Level 3 felony armed robbery (Morris, Thompson, Bell, Fuentes, Zandy, and Eggers), and one count of Level 3 attempted armed robbery (Mitchell). She was sentenced to 108 years.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 21 of 45 most fruit, and that’s the seed that I want to plant.” Tr. Vol. 8 at 18. Two of

Beaty’s friends and his sister testified about Beaty and the impact of his life and

death.

[43] Carolyn Vance, a licensed clinical social worker from the Public Defender

Agency, spoke on Anderson’s behalf, explaining her interactions with him and

her research into his background. Vance prepared Anderson’s sentencing

memorandum. She explained that “our brain develops properly between ages

25 and 28.” Tr. Vol. 8 at 37. Anderson was twenty-two at the time of these

crimes, and “for somebody who is that age and experienced the kind of trauma

[he] had experienced in his life, impulsivity, things like that, are kind of at the

forefront of a brain that is not fully developed.” Id. at 38.

[44] The State highlighted the “trail of victims” from this “crime spree” that

occurred in “just 15 minutes,” arguing Anderson, Jones, and Shields “took

advantage of the situation that was going [on] downtown that night.” Id. at 67.

The State asked for Anderson to be sentenced to 172 years.

[45] Anderson’s counsel asked the court to consider his preexisting mental health

diagnoses and untreated substance use disorder, as well as his history of

childhood trauma in “strik[ing] a balance between the mitigators in his

particular case with the statutory aggravators that the State has brought up[.]”

Id. at 73. Counsel also noted the State’s focus on the proximity in time of these

offenses and—acknowledging the crimes are crimes of violence—asked the

court to consider “looking at each instance as . . . parts of one episode as

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 22 of 45 opposed to individual instances” and running “either instances concurrently, or

particular victims concurrently[.]” Id. at 74.

[46] The trial court considered as a mitigator Anderson’s childhood trauma of living

in extreme poverty and losing his mother at a young age. The court also found

his mental health diagnoses and untreated substance use disorder to be

mitigators. The trial court found as aggravators Anderson’s criminal history

and that he was on probation when he committed these offenses. The court

also considered the nature and circumstances of the crimes to be an

aggravator—specifically, the crimes of violence against multiple victims. And

the court noted Anderson’s risk to reoffend was high.

[47] The trial court vacated the jury’s guilty verdict for the murder charge and

sentenced Anderson to sixty years for felony murder and thirteen years for each

robbery and attempted robbery conviction. The court ordered the sentences to

be served consecutively, for a total sentence of 164 years in the DOC.

[48] Anderson appeals his convictions and sentence. Additional facts will be added

as necessary.

1. Anderson waived any objection to amending the charges against him, but waiver notwithstanding, there was no error in allowing the amendment. [49] Anderson claims the trial court erred by granting the State’s motion to amend

the information to add the Eggers and Zandy counts. He argues the

amendment was a “prodigious change” that prejudiced his substantial rights.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 23 of 45 Appellant’s Br. at 39. He also anticipates a waiver argument from the State

because he did not request a continuance after the trial court allowed the

amendment. But he argues waiver should not apply because he should not

have to choose between requesting a continuance to prepare for the new

charges and having a trial that had already been delayed for over two years

from its original setting.

[50] As Anderson predicted, the State argues he waived this claim. Our Supreme

Court has held that once a defendant’s objection to a pre-trial substantive

amendment has been overruled, he must request a continuance or the issue is

waived. Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind. 1996); see Gaby v. State,

949 N.E.2d 870, 874 (Ind. Ct. App. 2011). Anderson urges us not to follow this

precedent, citing State v. McFarland as a case where this Court “examined the

filing of a late amendment without regard to whether the defendant could have

requested a continuance.” Appellant’s Br. at 39 (citing 134 N.E.3d 1027, 1029

(Ind. Ct. App. 2019), trans. denied). In McFarland, the trial court denied a late

proposed amendment. The State appealed, arguing in part there would have

been no prejudice to the defendant by allowing the amendment because on

request, the trial court would have been obligated to continue the trial. 134

N.E.3d at 1030. Although the McFarland court discussed the requirement of

requesting a continuance, it did not face a defendant’s waiver. McFarland is

procedurally distinguishable from this case. We decline Anderson’s request to

ignore Supreme Court precedent and instead, we abide by the long-standing

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 24 of 45 rule of waiver. Anderson did not request a continuance and has waived this

issue for appellate review.

[51] Waiver notwithstanding, Anderson would not prevail. An amendment to the

charging information may be either a matter of form or substance. See Erkins v.

State, 13 N.E.3d 400, 405 (Ind. 2014). An amendment is one of substance

“only if it is essential to making a valid charge of the crime.” Id. at 406

(quoting Fajardo v. State, 859 N.E.2d 1201, 1205 (Ind. 2007)). An amendment

that adds a new count “is patently one of substance as charg[ing] the

commission of a separate crime . . . is unquestionably essential to making a

valid charge of the crime.” Mays v. State, 120 N.E.3d 1070, 1080 (Ind. Ct. App.

2019) (internal quotation omitted), trans. denied.

[52] An indictment or information may be amended in matters of substance “upon

giving written notice to the defendant at any time . . . before the

commencement of trial . . . if the amendment does not prejudice the substantial

rights of the defendant.” I.C. § 35-34-1-5(b)(2) (2014). A defendant’s

substantial rights “include a right to sufficient notice and an opportunity to be

heard regarding the charge; and, if the amendment does not affect any

particular defense or change the positions of either of the parties, it does not

violate these rights.” Erkins, 13 N.E.3d at 405 (quoting Gomez v. State, 907

N.E.2d 607, 611 (Ind. Ct. App. 2009), trans. denied). “Ultimately, the question

is whether the defendant had a reasonable opportunity to prepare for and

defend against the charges.” Taylor v. State, 86 N.E.3d 157, 163 (Ind. 2017)

(quotation omitted), cert. denied.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 25 of 45 [53] Anderson’s substantial rights were not prejudiced by the amendment.

Although Anderson does not complain about lack of notice or opportunity to be

heard, we note Anderson had both. Anderson was charged in the Zandy case

in August 2020. After the MR case was filed in December 2020, Anderson

requested the two cases “track” each other even before the State filed its motion

to join in August 2022. Then the State’s motion to join remained pending for

nine months. The trial court denied the motion to join on May 10, 2023—two

weeks before trial was set to begin. By that time, Jones had deposed Zandy and

Detective Brink in preparation for the Zandy case.

[54] As for the Eggers count, at the time of the charges in the MR case, the State

knew about the Eggers robbery but did not know Eggers’ identity. The robbery

was included in the probable cause affidavit—filed December 3, 2020, alongside

the charges against Anderson—as committed against an “unknown person.”

Appellant’s App. Vol. 2 at 43–44. When Eggers reported the crime to police in

June 2022, the State promptly informed Anderson. The trial court held a

hearing on the State’s motion to amend, at which the State said it had

“conversations” with the defense, so they “had informal notice, if not formal

notice” of the State’s intent to add the Eggers count. Tr. Vol. 2 at 77. The State

also informed the court Anderson had already deposed Eggers. The

amendments formalized what Anderson had notice of for several months.

See Mays, 120 N.E.3d at 1080–81 (State’s amendment of charges about two

months before trial in a case pending for two years did not prejudice the

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 26 of 45 defendant because he knew the amendment likely would occur and the

amendment did not change his defense).

[55] Anderson asserts the amendment permitted the State to present otherwise

irrelevant and inadmissible evidence—the “entirety of Eggers’s and Zandy’s

testimony[.]” Appellant’s Br. at 38. Anderson claims the “evidence against him

was dramatically increased” by the amendment, but he does not argue how the

amendment affected any particular defense or changed the parties’ positions.

Id.; see Taylor, 86 N.E.3d at 163 (holding trial court did not err in permitting

amendment two days before trial when the defendant, among other things, did

not explain how the amendment hindered his defense). With the original

charges in the MR case, the State was alleging a close-in-time series of robberies

accomplished by escalating force. 18 The amendment did not change that

theory. And Anderson’s defense in the MR case was that the State had not

“put together the puzzle pieces” to prove he was part of the group robbing

people around Vermont and Talbott Streets that night. Tr. Vol. 7 at 110. That

defense applied equally before and after the amendment.

[56] Anderson had a reasonable opportunity to prepare for and defend against the

added counts. The trial court did not err in allowing the amendment.

18 Pending the trial court’s ruling on the motion to amend, the State filed a notice of intent to introduce evidence of the Zandy and Eggers robberies, requesting the trial court “admit the proposed evidence as intrinsic evidence related to the charged offenses or in the alternative as permissible evidence under Indiana Rule of Evidence 404(b) to show motive, intent, opportunity, identi[t]y, or plan.” Appellant’s App. Vol. 2 at 229.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 27 of 45 2. Anderson was not denied a fair trial by the trial court’s denial of extra time to conduct voir dire. [57] Anderson claims his right to a fair and impartial jury was compromised because

the trial court denied his request for more time to question the first venire panel.

He asserts good cause existed for allowing extra time because some jurors in the

first panel signaled they would view a defendant’s silence at trial as a sign of

guilt, contrary to the constitutional right to remain silent. This, he says, “cut[s]

at the very heart of Anderson’s right to a fair trial.” Appellant’s Br. at 27.

[58] The Indiana Constitution grants a criminal defendant the right to trial by an

impartial jury. Ind. Const. art. 1 § 13(a). “The function of the voir dire is to

ascertain whether or not the prospective juror can render a fair and impartial

verdict in accordance with the law and the evidence.” Murphy v. State, 469

N.E.2d 750, 752 (Ind. 1984). Trial courts have broad discretion to regulate the

form and substance of voir dire but must adhere to our Trial Rules. Doroszko v.

State, 201 N.E.3d 1151, 1154–55 (Ind. 2023). Indiana Trial Rule 47(D)

addresses the examination of prospective jurors. 19 During voir dire, the court

must afford each party a reasonable opportunity to exercise its peremptory

challenges intelligently through inquiry. Perryman v. State, 830 N.E.2d 1005,

1008 (Ind. Ct. App. 2005) (citing Von Almen v. State, 496 N.E.2d 55, 59 (Ind.

19 Trial Rule 47 is made applicable to this criminal case through Indiana Criminal Rule 21 (now Criminal Rule 1.1, effective January 1, 2024), which states the Indiana Rules of Court and all statutes governing procedure and practice in trial courts apply to all criminal proceedings unless they conflict with the Criminal Rules.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 28 of 45 1986)). In part, Rule 47(D) allows the court to “impose an advance time

limitation” on examination of the jurors by the parties or their attorneys. But it

also directs that when the time expires, “the court shall liberally grant

additional reasonable time upon a showing of good cause related to the nature

of the case, the quantity of prospective jurors examined and juror vacancies

remaining, and the manner and content of the inquiries and responses given by

the prospective jurors.” T.R. 47(D). The decisions of the trial court regarding

voir dire will be reversed only if there is a showing of manifest abuse of

discretion and the denial of a fair trial. Cliver v. State, 666 N.E.2d 59, 65 (Ind.

1996). “This will usually require a showing by the defendant that he was in

some way prejudiced by the voir dire.” Id.

[59] The following discussion was held in the last few minutes of the defendants’

time to question the first venire panel:

[Counsel]: . . . [I]s there anybody who would want to hear from somebody arrested? Do you want them to take the stand and hear their version? Raise your hand?

Prospective Juror: It would be nice.

Prospective Juror: I don’t know what you mean.

[Counsel]: Do you understand that they don’t have to take the stand? They have that protection? Do – and what are some reasons someone may not take . . . the stand? Yes?

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 29 of 45 Prospective Juror: I don’t really know why, but I’ve heard that sometimes . . . they can often be advised not to do so. And I’m not really sure why that is, but –

[Counsel]: Why, please?

Prospective Juror: Some people just aren’t great getting in front of people, and they don’t project the best. I don’t know if I would in a situation like that, you know. And . . . [t]hey might not be very eloquent, or they might not, you know, project.

[Counsel]: . . . [I]f Ms. Shields, or Defendant does not take the stand, raise your hand if you think that they’re guilty, and that’s why they’re not going to take the stand?

Prospective Juror: It doesn’t necessarily automatically mean they’re guilty. I don’t know. It seems questionable, a little, I would say.

[Counsel]: So you don’t think you could be fair or impartial if they did not take the stand?

Prospective Juror: I honestly don’t . . . know.

[Counsel]: . . . Ms. S., what do you think?

Prospective Juror: I understand why some people might want . . .

The Court: Time.

Prospective Juror: . . . to defend themselves, but I think it could be helpful sometimes, because it can help them more humanize themselves. . . . [B]ecause sometimes when you are sitting there

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 30 of 45 and you’re being tried, people sometimes admit – like might automatically assume he’s guilty. But being able to speak for yourself could help.

Tr. Vol. 3 at 89–91. The trial court denied Anderson’s request for more time to

question this round of prospective jurors. The record of jury selection is unclear

about who raised their hand in response to counsel’s question or who

commented further. But taking at face value Anderson’s counsel’s statement

that “literally the entire back row raised their hands,” three of those prospective

jurors were seated.20 Tr. Vol. 3 at 91.

[60] It is troubling that any prospective jurors revealed—at least preliminarily—they

would look unfavorably on a defendant who did not testify. Because of these

responses, Anderson did show good cause for the “liberal[] grant [of] additional

reasonable time” to question the panel further about their views. T.R. 47(D).

But once the court did not grant additional time, Anderson did nothing he

could or should have done to cure or preserve the error.

[61] Anderson did not ask to make a more specific record of which prospective

jurors had raised their hands and which had elaborated on their views for

purposes of appeal. The record does not reflect the defendants challenged any

of the nine jurors from the back row for cause because of their answers to the

20 In his opening brief, Anderson asserts six of the jurors from the back row were seated but concedes in his reply brief it was three. See Appellant’s Reply Br. at 7 n.1. “But whether half or a quarter of Anderson’s jury believed he was guilty because he chose not to testify,” Anderson argues “the consequence of an unfair trial remains the same.” Id.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 31 of 45 question about a defendant not taking the stand. Anderson seems to concede

the defendants did not make a for-cause challenge to any of the jurors but

claims such a challenge would have been futile. Anderson cites Curtis v. State

for the proposition that “[c]ounsel cannot be faulted for failing to make an

objection which had no hope of success[.]” Appellant’s Reply Br. at 8 (quoting

905 N.E.2d 410, 418 (Ind. Ct. App. 2009), trans. denied). But Curtis was decided

in the context of a post-conviction proceeding alleging ineffective assistance of

counsel for failure to object to admissible evidence and is not directly applicable

to this situation. Moreover, just because the trial court denied additional time

for questioning does not necessarily mean the court also would have denied a

for-cause challenge to a juror for expressing a viewpoint contradicting a

defendant’s right not to testify at trial. Regardless, Anderson did not give the

trial court the opportunity to rule on a for-cause challenge. The defendants also

did not exercise any of their twelve peremptory challenges after the first round

of questioning. See Appellant’s Br. at 23. And the record reflects the defense still

had at least one peremptory challenge remaining when all jurors were seated.

See Tr. Vol. 3 at 160 (trial court saying to the State when choosing alternate

jurors, “You haven’t used yours as much as the Defense has. They’ve used

11.”).

[62] The exhaustion requirement is fatal to Anderson’s claim. The exhaustion rule

promotes judicial economy by requiring parties to “use the tools at their

disposal to cure error and avoid significant costs that will accrue to the

judiciary, the parties, and the citizen jurors.” Oswalt v. State, 19 N.E.3d 241,

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 32 of 45 246 (Ind. 2014). Under this rule, a defendant must use any available

peremptory challenges to correct erroneous denials of challenges for cause. Id.

Our Supreme Court has explained that if a defendant proves both erroneous

denial of a for-cause challenge and inability to strike another objectionable juror

because his peremptories were exhausted, he is “entitled to a new trial, full

stop.” Merritt v. Evansville-Vanderburgh Sch. Corp., 765 N.E.2d 1232, 1237 (Ind.

2002). Although we are not directly reviewing the denial of a for-cause

challenge, the policies and purposes behind the exhaustion requirement also

apply in this situation. Anderson did not make for-cause challenges to the

allegedly biased jurors and he did not exhaust his peremptories. In other words,

Anderson did not use the tools at his disposal to cure the trial court’s error at

the time and “ensure a fair trial and an efficient resolution of the case.” Id. at

1235. Having failed to do so, Anderson cannot now show he was denied a fair

trial by the trial court’s conduct of voir dire. See Cliver, 666 N.E.2d at 65. 21

3. The trial court did not abuse its discretion in admitting Facebook messages. [63] Anderson claims the trial court erred by admitting private Facebook messenger

conversations that were not properly authenticated. Three sets of exhibits were

introduced: one set with messages obtained from Jones’ account, one with

21 The trial court’s final instructions instructed the jury: “No defendant may be compelled to testify. A defendant has no obligation to testify. The defendants did not testify. You must not consider this in any way.” Tr. Vol. 7 at 181. We presume jurors follow their instructions. Weisheit v. State, 109 N.E.3d 978, 989 (Ind. 2018), cert. denied.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 33 of 45 messages from Anderson’s account, and one with messages from Shields’

account. Anderson does not challenge the admission of Jones’ records; he only

challenges the admission of messages from his and Shields’ accounts. See

Appellant’s Br. at 29 n.2.

[64] At trial, Detective Smalley explained that a “big part of the investigative process

is social media research.” Tr. Vol. 7 at 34. He described searching suspects’

names and known associates in “any available social media.” Id. When

Detective Smalley identifies a relevant Facebook account, he submits a

preservation request and Facebook “saves a version of the information on the

account as it exi[s]ts in that moment in time.” Id. “[I]f later on I write a search

warrant for records related to that account, I can reference that preservation

request, and even if the account has been changed . . ., the records I receive are

intact as of that moment[.]” Id. In this case, Detective Smalley sent

preservation requests and later, search warrants for the Facebook accounts of

Anderson, Shields, and Jones.

[65] The warrant for Anderson, signed July 24, 2020, sought records from the

account identified by the following URL: 22

https://www.facebook.com/marcus.y.anderson. The warrant also included a

screenshot of the account’s homepage, including a profile picture that was

22 “URL” stands for “Uniform Resource Locator,” and is the address of a unique resource on the internet. What is a URL?, https://developer.mozilla.org/en- US/docs/Learn/Common_questions/Web_mechanics/What_is_a_URL (last visited December 17, 2024) [https://perma.cc/76HH-F2W8].

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 34 of 45 “verified to be him” by comparison with Bureau of Motor Vehicles records. Ex.

Vol. 3 at 110. Facebook returned a Certificate of Authenticity of Domestic

Records of Regularly Conducted Activity signed by the Custodian of Records

and certifying it had received a warrant on July 27, 2020, and was responding

with records “for the account with the identifier 100001308246632.” Ex. Vol. 1

at 192. 23 And the warrant for Shields, signed August 20, 2020, sought

information “under Facebook case number 5203731” for the account identified

by the following URL: https://www.facebook.com/nakeyah.shields.1[.] Ex.

Vol. 3 at 63. The Certificate of Authenticity certified Facebook had received a

warrant and was providing records “for the account with identifier

100012326103170.” Ex. Vol. 1 at 187.

[66] For each account, Facebook returned “a zipped folder with a large amount of

information[,] . . . really anything associated with the account.” Tr. Vol. 7 at 35.

Detective Smalley reviewed the records and located messages he felt were

relevant to the investigation. These messages were sent in the immediate

aftermath of the crimes and discussed Beaty, selling a gun, hiding out, and

23 “Facebook assigns each user a unique number to the account.” Tr. Vol. 7 at 35. To illustrate the basis for the objections to Anderson’s and Shields’ records but not Jones’, the warrant for Jones’ records sought records from “https://www.facebook.com/profile.php?id=100008034708544.” Ex. Vol. 3 at 91. The Certificate of Authenticity certified it was providing records “for the account with the identifier 100008034708544.” Ex. Vol. 1 at 176. All three Certificates of Authenticity included Facebook’s “unique number,” but there is not a similar one-to-one comparison between the search warrants and the Facebook records for Anderson and Shields.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 35 of 45 leaving the area. The State copied the pages containing those messages,

redacted irrelevant messages, and offered them into evidence.

[67] When the State offered the Facebook exhibits, the trial court held a hearing

outside the presence of the jury at which all three defendants made their

objections to “all the Facebook material [the State is] trying to enter.” Tr. Vol. 7

at 36. 24 Anderson’s counsel objected to admission of his records because the

certification purported to authenticate an identifier number but there was no

identifier number referenced in the search warrant for Anderson’s account, so

there was “no nexus shown between the records and the certification.” Id. at

41.

[68] As to Anderson’s records, the State responded:

Yes, Marcus Anderson’s [warrant] does not indicate necessarily a Facebook provided identification number. It does, however, provide the URL for the account for which the records are being sought, that being Marcus Anderson.

It does display the photograph of the Facebook page that indicates both the vanity name, Marcus Anderson, as well as the photographs that are contained within that initial . . . Facebook page. It has a screenshot of that information.

I think that the information that is contained within the warrant does contain a nexus between Marcus Anderson and the events

24 Because of the way the trial court conducted the hearing, each attorney only made a specific objection to the introduction of their client’s records, but it is clear from context they all objected to the introduction of the records of each defendant.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 36 of 45 that have occurred as well as the specific records that are being returned. . . . The [Facebook] affidavit . . . contains Facebook’s unique identifier, however, within the records themselves, the identifier is tied to the name of Marcus Anderson[.]

So I do believe that there is sufficient nexus between the records, the affidavit, the search warrant to give these the reliability that these records are what they are.

Tr. Vol. 7 at 42; see also id. at 50 (State responding generally to all objections that

the records “are what they purport to be. They are reliable, they should be

admitted as certified business records.”). The trial court admitted the Facebook

records of each defendant.

[69] We review a trial court’s decision on the admission of evidence only for abuse

of discretion. McCoy v. State, 193 N.E.3d 387, 390 (Ind. 2022). Reversal is

warranted “only if the trial court’s ruling is clearly against the logic and effect of

the facts and circumstances and the error affects a party’s substantial rights.”

Id.

[70] To properly authenticate a piece of evidence as a condition precedent to its

admissibility, the proponent is required to “produce evidence sufficient to

support a finding that the item is what the proponent claims it is.” Ind.

Evidence Rule 901(a). There are a variety of ways to authenticate an item of

evidence, including “[t]he appearance, contents, substance, internal patterns, or

other distinctive characteristics of the item, taken together with all the

circumstances.” Evid. R. 901(b)(4). Absolute proof of authenticity is not

required; an item is admissible if the evidence establishes “a reasonable Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 37 of 45 probability the evidence is what it is claimed to be.” Calvert v. State, 177 N.E.3d

107, 111 (Ind. Ct. App. 2021), trans. denied. Once a reasonable probability is

shown, “any inconclusiveness of the evidence’s connection with the events at

issue goes to evidential weight, not admissibility.” Richardson v. State, 79

N.E.3d 958, 962 (Ind. Ct. App. 2017), trans. denied. Authentication of an

exhibit can be established by either direct or circumstantial evidence. Smith v.

State, 179 N.E.3d 1074, 1078 (Ind. Ct. App. 2022).

[71] “Due to the inherent anonymity of social media, the author of posts or other

communications made through this medium can be difficult to confirm[.]”

Wisdom v. State, 162 N.E.3d 489, 494–95 (Ind. Ct. App. 2020), trans. denied. In

cases where the State seeks to establish the author of incriminating textual

communications made through social media accounts, evidence of the

account’s owner is often necessary to authenticate those statements. Id. at 494.

A proponent can verify a social media account’s owner by providing distinctive

characteristics unique to the account and the alleged owner. See Richardson, 79

N.E.3d at 963; Evid. R. 901(b)(4). In Richardson, we held a statement made in

Facebook messages was not properly authenticated because the defendant did

not present evidence the Facebook account belonged to the victim nor did he

“present any other indicia of reliability establishing [the victim] as the author of

the contested statement.” 79 N.E.3d at 964.

[72] Anderson claims there is no “common identifier” between the accounts

identified by URL in the search warrants and the records Facebook certified by

numeric identifier. Appellant’s Br. at 30. He argues that although the Facebook

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 38 of 45 records “belong to a Marcus Anderson,” there is no evidence they belong to

“the Marcus Anderson on trial.” Id. at 29–30. Anderson argues the same with

respect to Shields’ records. It is true neither Anderson’s nor Shields’ unique

Facebook numeric identifier is referenced in the search warrants. But the State

did present “other indicia of reliability.” The URL is a unique identifier in

itself. The search warrant for Anderson’s records also included a screenshot of

the account’s homepage with a picture of Anderson, and the warrant for

Shields’ records included a Facebook case number, each of which could help

Facebook identify the correct account.

[73] Moreover, the records themselves establish a reasonable probability the records

are what the State claims they are. Anderson does not challenge the

authentication of Jones’ Facebook records. There was a common identifier

between the Jones search warrant and the records provided in response. Those

unchallenged records show Jones, with a numeric identifier ending 08544,

communicated with Nakeyah Shields, with a numeric identifier ending 03170.

See, e.g., Ex. Vol. 1 at 177. Shields’ numeric identifier in Jones’ records is the

same number as in the Facebook certification of Shields’ records. See id. at 187.

In turn, Shields’ records show she communicated with Marcus Anderson, with

a numeric identifier ending 46632, the same identifier as in the Facebook

certification of Anderson’s records. See id. at 188, 192. And finally, Anderson’s

records show he communicated with Jones’ account, with a numeric identifier

ending 08544. The contents of the messages include references to and

screenshots of the BOLOs from the Zandy robbery.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 39 of 45 [74] The State presented distinctive characteristics linking Shields and Anderson to

the Facebook accounts used as evidence at trial. Even if the evidence was not

indisputable proof of account ownership, such proof was not required. Calvert,

177 N.E.3d at 111. Any lingering doubts about the authenticity of each

account go to the evidentiary weight of the messages, not their admissibility.

See Richardson, 79 N.E.3d at 963. The trial court’s decision to admit this

Facebook evidence was not clearly against the logic and effect of the facts and

circumstances before it.

4. Anderson’s sentence is not inappropriate. [75] Finally, Anderson asks us to revise his sentence. The Indiana Constitution

authorizes this Court to review and revise a trial court’s sentencing decision as

provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides

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.” The

principal role of appellate review is to leaven the outliers, not to achieve a

perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288

(Ind. 2022). Therefore, “we reserve our 7(B) authority for exceptional cases.”

Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).

[76] “[S]entencing is principally a discretionary function in which the trial court’s

judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). “Such deference should prevail unless overcome by

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 40 of 45 compelling evidence portraying in a positive light the nature of the offense (such

as accompanied by restraint, regard, and lack of brutality) and the defendant’s

character (such as substantial virtuous traits or persistent examples of good

character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The two

prongs of 7(B) review are “separate inquires to ultimately be balanced in

determining whether a sentence is inappropriate.” Lane v. State, 232 N.E.3d

119, 126 (Ind. 2024) (quoting Conner v. State, 58 N.E.3d 215, 218 (Ind. Ct. App.

2016)). “[T]o the extent the evidence on one prong militates against relief, a

claim based on the other prong must be all the stronger to justify relief.” Id. at

127.

[77] The question “is not whether another sentence is more appropriate; rather, the

question is whether the sentence imposed is inappropriate.” Helsley v. State, 43

N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind.

Ct. App. 2008)) (emphasis omitted). Whether we regard a sentence as

inappropriate “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, 895 N.E.2d at 1224. The defendant

bears the burden of persuading us a revised sentence is warranted. See Hall v.

State, 177 N.E.3d 1183, 1197 (Ind. 2021).

[78] Anderson was convicted of felony murder—which carries a sentencing range of

forty-five to sixty-five years, with an advisory term of fifty-five years—and eight

Level 3 felonies—which each carry a sentencing range of three to sixteen years,

with an advisory sentence of nine years. I.C. §§ 35-50-2-3, -5(b). The trial court

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 41 of 45 sentenced Anderson to sixty years for felony murder, thirteen years for each

robbery or attempted robbery conviction, and ordered the sentences to be served

consecutively, for a total sentence of 164 years. The individual sentences were

above the advisory, but below the maximum sentences authorized by statute.

[79] To his credit, Anderson acknowledges there was “no justification” for the

crimes. Appellant’s Br. at 43. But he claims the nature of his offenses could have

been worse in that he participated in crimes of impulse and opportunity while

high rather than committing calculated acts while clear-headed. We are

unconvinced this portrays the crimes in a more positive light. Anderson and his

companions arrived in downtown Indianapolis after chaos had already erupted.

They could have stayed away. Instead, they capitalized on law enforcement’s

focus on the unruly crowds to commit several crimes in an extremely short

period of time. See Tr. Vol. 8 at 85 (trial court noting “there were nine victims in

15 minutes on May 30th, 2020”). The video of the Zandy robbery shows they

were wearing surgical gloves, reflecting some degree of planning. They

demonstrated complete disregard for the safety of others, gratuitously hitting

and kicking their victims, firing a gun near them, and ultimately shooting Beaty

from behind.

[80] As for his character, Anderson primarily highlights the difficult circumstances

of his childhood and his mental health struggles, which go hand-in-hand with

his substance use, as he self-medicates with illegal drugs. The trial court found

all these things to be mitigating factors and—as noted above—did not sentence

Anderson to the maximum authorized sentence. We, too, acknowledge the

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 42 of 45 hardships Anderson faced growing up, including being one of eleven children

living in extreme poverty, the loss of his mother, and his father abruptly moving

him from his childhood home. The trial court accounted for these

circumstances in fashioning a sentence, and we cannot say they warrant further

revision of Anderson’s sentence, especially when considering other facets of

Anderson’s character. Anderson’s criminal history, albeit brief, includes four

arrests as an adult, with one felony conviction for robbery resulting in bodily

injury and one misdemeanor conviction for domestic battery. Anderson was

released to probation in January 2020 for the felony conviction and committed

these crimes four months later while still on probation. He was alleged to have

violated his probation several times, including with the commission of these

offenses. 25 While incarcerated awaiting trial and sentencing in this case,

Anderson committed four conduct violations. Anderson’s previous conviction

for robbery is especially relevant here. See Dean v. State, 222 N.E.3d 976, 991

(Ind. Ct. App. 2023) (noting the significance of a defendant’s criminal history

“varies based on the gravity, nature, proximity, and number of prior offenses in

relation to the current offense”) (citation omitted), trans. denied. And his overall

criminal history shows a continuing disregard for the rule of law and for the

peace and property of other people, which reflects poorly on his character. See

25 The other alleged probation violations were primarily for failing to submit to a drug test or report to probation as directed.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 43 of 45 id. (explaining even a minor criminal history reflects poorly on a defendant’s

character). 26

[81] Anderson acknowledges consecutive sentences are warranted when multiple

victims suffer separate harms but asks we revise his consecutive sentences to

concurrent sentences. See Appellant’s Br. at 47–48. “Whether the counts involve

one or multiple victims is highly relevant to the decision to impose consecutive

sentences if for no other reason than to preserve potential deterrence of

subsequent offenses.” Cardwell, 895 N.E.2d at 1225. Consecutive sentences

also acknowledge the dignity of each individual victim. See Serino v. State, 798

N.E.2d 852, 857 (Ind. 2003). We will not substitute our judgment for the trial

court’s. See Stephenson, 29 N.E.3d at 122. Anderson’s sentence, though

lengthy, is not an outlier requiring correction.

Conclusion [82] Anderson waived appellate consideration of the amendment of his charges, but

regardless, there was no error. He was not denied a fair trial by the trial court’s

denial of his request for more time to conduct voir dire. The trial court did not

26 We agree with Anderson that the State overstated his role in arguing Anderson’s conduct does not warrant sentence revision. First, it says Anderson “was a leader or central character of the crimes since he held Zandy down at gunpoint, allowing his codefendants to riffle through her car.” Appellee’s Br. at 40–41. There was no evidence Anderson had a gun during the Zandy robbery. Then the State says “as a result of being downtown that night with Anderson, Murrell died.” Id. at 41. There is no evidence from which it could be inferred Anderson had anything to do with Murrell’s death. These statements did not factor into our decision.

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 44 of 45 err in admitting social media evidence, and Anderson’s sentence is not

inappropriate.

[83] Affirmed.

May, J., and Vaidik, J., concur.

ATTORNEY FOR APPELLANT Matthew D. Anglemeyer Marion County Public Defender Appellate Division Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General

Steven J. Hosler Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 23A-CR-1645 | December 20, 2024 Page 45 of 45