Friday, September 15, 2017

The Judge, the Email and “Violating a Criminal Protection Order”

This post examines an opinion issued by the Presiding Disciplinary Judge of the Supreme Court of Colorado: People v. Lesuer, 2017 WL 3588713. The opinion begins by explaining that the
Presiding Disciplinary Judge approved the parties' conditional admission of misconduct and suspended James D. Lesuer (attorney registration number 18379) for six months, effective August 11, 2017.
 In January 2014, a temporary protection order was entered against Lesuer, forbidding him to contact his ex-wife. In March 2014, Lesuer sent his ex-wife a text message. He was arrested, was convicted of a violation of the protection order, and received a deferred judgment. In November 2014, Lesuer contacted his ex-wife by email. He was again arrested and was convicted of violating a criminal protection order, a class-one misdemeanor. He was sentenced to sixty days in jail and two years of supervised probation. His deferred judgment was also revoked. Lesuer failed to report both of his convictions to disciplinary authorities.
People v. Lesuer, supra.
The opinion goes on to explain what happened next, i.e., that
[i]n October 2016, Lesuer violated a protection order by contacting his ex-wife via an online mail service. He was arrested, charged with violating a protective order, and released on bond. He then emailed his ex-wife again in November 2016. He was again arrested and charged. In April 2017, Lesuer pleaded guilty to violating a protective order in one case in exchange for the dismissal of the second case. He was sentenced in June 2017 to 120 days in jail. He was later placed on work release.

In this matter, Lesuer violated Colorado Rules of Professional Conduct 8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects); Colorado Rules of Procedure Regarding Attorney Discipline 251.5(b (any criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer amounts to grounds for discipline); and Colorado Rules of Procedure Regarding Attorney Discipline 251.20(b) (a lawyer shall notify disciplinary authorities of any conviction within fourteen days of the conviction).
People v. Lesuer, supra.

Monday, September 11, 2017

“Doing Something on a Laptop,” Ineffective Assistance of Counsel and the Bench Trial

This post examines a recent decision from the Appellate Court of Illinois – Second District: People v. Perry, 2017 WL 3328365 (2017). The court began the opinion by explaining that
the trial court properly summarily dismissed defendant's postconviction petition, which alleged that appellate counsel had been ineffective for failing to argue that the State presented false testimony to the grand jury: defendant did not demonstrate that the testimony at issue was even arguably false and, in any event, defendant did not provide the entirety of the grand-jury testimony and thus we could not determine that the grand jury, even arguably, would not have indicted him absent that testimony.

 Defendant, Clarence E. Perry, appeals the trial court's order summarily dismissing his postconviction petition. He contends that he stated the gist of a meritorious claim that his appellate counsel was ineffective for not arguing that the State knowingly used false or misleading testimony to obtain the indictment. . . .
People v. Perry, supra
The Appellate Court went on to explain that
 [f]ollowing a bench trial, defendant was convicted of two counts of online theft by deception (720 [Illinois Compiled Statutes]5/16–40(b) (West 2012)). At that trial, Tannie Wilson testified that he owned Wilson Maintenance Company. In April and May 2012, he received two invoices from Grainger Corp. totaling more than $10,000 for merchandise that he did not order. Both invoices listed the purchaser as Cheryl Curry. The shipping address was a Smartstop storage facility, and the e-mail address was in the name of Edward Johnson. Wilson recognized neither name.
People v. Perry, supra.
The court then explained what happened next:
After receiving the first invoice, Wilson called Grainger. Kenneth Boyd, Grainger's loss-prevention specialist, discovered that the order was placed from Grainger's website. With his suspicions thus aroused, Boyd noticed that, when the second order came in, the shipping address was the same storage facility in Cicero as the first order. Both orders listed the name Cheryl Curry and the e-mail address The Internet protocol (IP) address on both forms was

Boyd contacted Lincolnshire detective Adam Hyde. They placed a tracking device on one of the boxes shipped with the second order. Hyde later recovered that device from a box found in the basement of a Maywood address that Hyde knew was the residence of defendant's brother, Elgin Perry.

An employee of the storage facility provided Hyde with information about a rented storage locker, as well as Cheryl Curry's phone number. Curry said that she picked up the packages for a person she knew as `Snag.’ From a photographic array, she identified defendant as `Snag.’

Hyde also requested business records from AT&T regarding the IP address Based on the information he received, he obtained a search warrant for 2007 12th Avenue in Maywood. He executed the warrant with Dean Kharasch, cybercrimes investigator for the Lake County State's Attorney's office. While there, Kharasch discovered a U–verse wireless router and an HP laptop. Kharasch learned that the home's Internet signal was an unsecured wireless signal, meaning that it was not password-protected. The IP address for the laptop was
People v. Perry, supra.
The opinion then explains that
Kharasch testified that the wireless account had been accessed at one time or another by at least 20 different devices. The homeowner, Jennifer Jackson, recognized only two of those devices, the laptop and a wireless printer. The other devices that accessed the network had been used outside the residence. Another indicator that `outside subjects’ were using the wireless connection without the Jackson's authority came from Hyde, who told Kharasch that someone had told him that `a subject by the nickname of “Snag” would sit in a vehicle down the street using this witness's wireless connection.’

In the search-warrant application, Hyde wrote that, while at the residence, the next-door neighbors approached him and said that `Snag,’ whom they identified as defendant, frequented the area. Driving a cream-colored Buick, he would park halfway down the block from the house. According to the neighbors, `He sits in the car doing something, and then drives away.’

On cross-examination, defendant asked Hyde whether `[t]his phantom someone came up to you and told you that Snag sometimes parks on the block and sits in his car and does something that they don't know, is that correct?’ Hyde replied, `A gentleman does do that. And a group of gentlemen said that to us, yes.’
People v. Perry, supra.
Since this case presented a rather complicated set of facts, the court went on to outline what happened next:
A consensual search of Elgin Perry's house revealed that it had no Internet connection. However, an office was set up in the basement with a computer, some other equipment, and two cell phones. Hyde returned to Elgin Perry's house later to attempt to speak with defendant. As Hyde approached, defendant stood up and ran, jumped the fence behind the house, and ran into an apartment complex.

A former Grainger branch manager testified that defendant worked for the company for two or three months during the summer of 2005. During that time, he could have had access to customer account information.

Curry testified that she met defendant through a mutual friend. Defendant asked her if she would be willing to rent a storage locker. She and defendant drove to the facility and she went in and paid the rent. A week later, she returned to the facility to pick up packages that Grainger had sent there. She brought them back to Maywood, and defendant put them in a garage. Approximately a week later, she picked up more packages from the same location. defendant once again took the packages and put them in the garage.
People v. Perry, supra.
The opinion then takes up Perry’s prosecution, explaining that the
parties stipulated to defendant's conviction of computer fraud, which was introduced to show common design and knowledge. The earlier case involved defendant using customer account numbers to place fraudulent online orders with Grainger. The orders were then shipped to a storage locker, which was opened in another person's name.

The court found defendant guilty on both counts and sentenced him to concurrent 12–year prison terms. On direct appeal, defendant argued that the trial court erred in denying a motion to dismiss for improper venue. This court affirmed. People v. Perry, 2014 IL App (2d) 130397–U.

Defendant then filed a postconviction petition in which he contended, inter alia, that appellate counsel was ineffective for failing to argue that his due process rights were violated when the prosecutor presented false or misleading evidence to the grand jury. The court summarily dismissed the petition, and defendant timely appeals.
People v. Perry, supra.
The court then took up the arguments Perry made on appeal, beginning with his claim that
the court should not have dismissed his petition summarily, because it stated at least the gist of a claim that appellate counsel was ineffective. He points out that Hyde told the grand jury that neighbors said they saw defendant in the neighborhood of the 12th Avenue home doing something `on a laptop,’ while in his application for a search warrant and at trial, he related that the neighbors merely saw defendant `doing something.’ Defendant contends that, given the low threshold presented by the `gist’ standard at the first stage of postconviction review, it is at least arguable that, had the grand jurors not been told that defendant was seen with a laptop, they might not have indicted him for crimes of computer fraud, and, thus, appellate counsel was ineffective for not arguing this issue.
People v. Perry, supra.
The opinion goes on to explain that
[w]e begin our analysis of this issue with a brief review of the Post–Conviction Hearing Act (the Act) (725 Illinois Compiled Statutes 5/122–1 et seq. (West 2016)). A proceeding under the Act is not an appeal of a defendant's underlying conviction. Rather, it is a collateral attack on the judgment. The purpose of the proceeding is to resolve allegations that constitutional violations occurred at trial, when those allegations have not been, and could not have been, adjudicated previously. To be entitled to postconviction relief, the defendant bears the burden of establishing a substantial deprivation of federal or state constitutional rights. People v. Evans, 186 Ill. 2d 83, 89 (1999).

A proceeding under the Act may consist of three stages. At the first stage, the court independently reviews the petition to decide if it is `frivolous or is patently without merit.’ 725 Illinois Compiled Statutes 5/122–2.1(a)(2) (West 2016). If the court reaches this conclusion, it must dismiss the petition in a written order. 725 Illinois Compiled Statutes 5/122–2.1(a)(2) (West 2016). A petition is considered `frivolous or patently without merit only if the allegations in the petition, taken as true and liberally construed, fail to present the ‘gist of a constitutional claim.’ People v. Edwards, 197 Ill. 2d 239, 244 (2001) (quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996)). The `gist’ standard is `”a low threshold.”’ Id. (quoting Gaultney, 174 Ill. 2d at 418)). To set forth the `gist’ of a constitutional claim, a petition `need only present a limited amount of detail’ (Gaultney, 174 Ill. 2d at 418) and, thus, need not set forth the claim in its entirety. The petition need not include `legal arguments or [citations] to legal authority.’ Id.
People v. Perry, supra.
The court, though, also goes on to explain that
[h]owever, the recognition of a low threshold does not mean that a pro se petitioner is excused from providing any factual detail at all surrounding the alleged violation. Section 122–2 also provides that `[t]he petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.’ 725 Illinois Compiled Statutes 5/122–2 (West 2016). `The purpose of the ‘affidavits, records, or other evidence’ requirement is to establish that a petition's allegations are capable of objective or independent corroboration.’ People v. Hodges, 234 Ill. 2d 1, 10 (2009).
A claim of ineffective assistance of appellate counsel is cognizable in a postconviction petition. To successfully state such a claim, a defendant must show that the failure to raise an issue was objectively unreasonable and that the decision prejudiced the defendant. People v. Easley, 192 Ill. 2d 307, 328–29 (2000). Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues that, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong. Accordingly, unless the underlying issue is meritorious, the defendant has suffered no prejudice from counsel's failure to raise it on appeal. Id.
People v. Perry, supra.
The Court went on to explain that
Defendant argues that appellate counsel should have argued that the prosecution presented misleading evidence to the grand jury. We disagree. Initially, Hyde's statements are not fundamentally inconsistent. `Doing something on a laptop’ is `doing something,’ so the statements are consistent. Defendant's entire argument, then, is based on the fact that Hyde omitted the detail `on a laptop’ from the search-warrant application. Why he did so is unknown. Perhaps he simply forgot. However, his failure to include this detail in the warrant application does not even arguably show that the reference in his grand-jury testimony to a laptop was invented.

Defendant makes much of the fact that Hyde did not testify at trial that the neighbors told him that defendant was using a laptop. However, as the State points out, the prosecutor did not ask Hyde about the statement at all on direct examination (perhaps because it was hearsay). Hyde's only mention of it consisted of answering on cross-examination defendant's leading questions, which in turn were based on the warrant application.

Interestingly, Kharasch testified that Hyde told him that neighbors said that Snag `would sit in a vehicle down the street using this witness's wireless connection.’ From this version of the statement, it is at least inferable that the neighbors did in fact tell Hyde that they saw defendant with a computer. Alternatively, if what the neighbors told Hyde was that they saw defendant using Williams's wireless connection, it was reasonable for Hyde to infer that he was using a laptop to do so
People v. Perry, supra.
The court then explains that
[i]n any event, even assuming that Hyde's statement about the laptop was utterly false, the ultimate question is to what extent the statement influenced the grand jury's deliberations. `”The due process rights of a defendant may be violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence.”’ People v. Oliver, 368 Ill. App. 3d 690, 694 (2006) (quoting People v. DiVincenzo, 183 Ill. 2d 239, 257 (1998)). However, to permit the dismissal of an indictment, the denial of due process must be unequivocally clear and the prejudice must be actual and substantial. Id. at 694–95.

In Oliver, on which defendant relies, we said that `it seems fairly self-evident’ that a due-process violation based on prosecutorial misconduct before a grand jury is actually prejudicial only if without it the grand jury would not have returned an indictment. Id. at 696–97. We cannot make that critical determination here, because we do not know what other evidence the grand jury heard. Defendant's petition includes only the page containing the allegedly offending statement. Without knowing the rest of the evidence that the grand jury heard, we cannot assess the impact of Hyde's statement on the jury's deliberations. The State argues that, if the evidence was similar to that presented at trial, the grand jury had ample other evidence on which to base an indictment. However, this requires us to speculate, and we need not do so.
People v. Perry, supra.
The court went on to explain that
[a]s noted, the Act requires that a petition shall have attached thereto `affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.’ 725 ILCS 5/122–2 (West 2016). Defendant argues that, to state the gist of a claim, it need only be `arguable’ that the alleged violation prejudiced him. However, the `arguable’ claim must still have factual support. A reasonably clever defendant can always construct a hypothetical argument, but the purpose of the evidentiary-support requirement is to demonstrate that the critical allegations underlying the argument can be independently corroborated. Hodges, 234 Ill. 2d at 10. Thus, the record does not demonstrate that any alleged violation prejudiced defendant, i.e., that the grand jury would not have indicted him but for the challenged statement.

The judgment of the circuit court of Lake County is affirmed. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4–2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).
People v. Perry, supra. 

Friday, September 01, 2017

Murder, the Facebook Message and Self-Defense

TThis post examines a recent opinion from the Court of Appeals of Indiana:  Richardson v. State, 2017 WL 2872300 (2017). The court began the opinion by explaining that “Appellant-Defendant, Terrance L. Richardson (Richardson), appeals his conviction for murder, a felony, Ind. Code § 35-42-1-1.” Richardson v. State, supra.
The Court goes on to explain that
Richardson raises two issues for our review, which we restate as:
 (1) Whether the trial court abused its discretion when it excluded a Facebook message from the evidence presented at trial; and

(2) Whether the State presented sufficient evidence beyond a reasonable doubt to rebut Richardson's claim of self-defense.
Richardson v. State, supra.
The Court of Appeals then began explaining how, and why, this prosecution arose:
On the afternoon of October 4, 2015, Richardson, and his three friends, Jalen Heffner (Heffner), Kaylend Gilbert (Gilbert), and Steven Kendall (Kendall)—all approximately seventeen years old—walked together to the New York Express convenience store, located at 2801 East New York Street—on the corner of Rural Street and New York Street—in Indianapolis, Indiana. Richardson and Gilbert entered the store, while Heffner and Kendall waited outside. After a short while, Kendall walked around the corner of the store, while Heffner sat on the curb in front of the store's entrance. A couple of seconds after Kendall walked around the corner, Richardson exited the store and joined Heffner on the curb; Gilbert remained inside, waiting in line at the cash register. When his purchase was complete, Gilbert joined Richardson and Heffner at the curb, just as Kendall turned the corner and walked towards them.

About a minute later, the group turned their attention to Rural Street as a black car pulled up. Richardson, Heffner, and Gilbert moved toward the vehicle and leaned into the passenger side window to start conversing with the occupant. Kendall hung back, remaining on the curb. Eventually, Kendall walked towards the vehicle and appeared to speak with the occupant. Then, Richardson, Gilbert, and Kendall moved away and began talking amongst themselves on the curb; Heffner remained at the vehicle. During the conversation, Kendall lifted his shirt with both hands and showed the other two a black item—appearing to be a gun—in the waistband of his pants. A couple of seconds later, Heffner shook hands with the occupant of the vehicle, which then drove away. All four talked briefly in front of the store, before walking away. Approximately thirty seconds later, Heffner and Richardson returned to the store. Upon entering, they immediately walked toward the back where Heffner reached in his right-hand pocket and handed Richardson a black object, which Richardson quickly pocketed in his jacket. The two then exited the store without making a purchase.
Richardson v. State, supra.
The court goes on to explain that the
four boys walked together to the parking lot behind the convenience store. Behind the store, Kendall stopped first. Richardson turned and walked back to Kendall, leaning down briefly with his hands on his knees. Richardson then faced Kendall and put his hand in his jacket. Heffner faced Kendall at the opposite side of Richardson. Richardson pulled out a gun and abruptly lunged at Kendall. Kendall put his left hand out to ward off the attack, and Richardson fired a single shot into Kendall's chest.

Heffner immediately sprinted back to the front parking lot of the New York Express. Richardson and Gilbert ran into each other as they fled towards Rural Street, causing Gilbert to drop his cellphone. Richardson, Gilbert, and Heffner met up after crossing the street and started walking as if nothing had happened. Although shot, Kendall managed to run in the opposite direction. As he ran, he dropped his gun. Seconds after he picked up the gun, he collapsed on the sidewalk and died.

When law enforcement arrived, they discovered Kendall face-first on the concrete, showing no signs of life. They recovered a handgun a few feet from Kendall's body. The handgun was fully loaded but did not have a bullet in the chamber. Forensic testing of the firearm revealed that it was not the weapon that had fired the fatal shot. A cellphone was recovered from Kendall's body. Another cellphone, later determined to belong to Gilbert, was found in the parking lot where Richardson and Gilbert had bumped into each other as they fled. Police officers obtained the surveillance footage from the New York Express and from the remodeling business, which allowed the officers to quickly identify the individuals involved.
Richardson v. State, supra.
The court concludes the introductory portion of the opinion by explaining that on
October 5, 2015, the State filed an Information charging Richardson with murder, a felony. On November 14 through 16, 2016, the trial court conducted a joint bench trial for Richardson, Heffner, and Gilbert.  At the close of the evidence, the trial court found Richardson guilty as charged, but found Gilbert and Heffner not guilty. On December 1, 2016, the trial court sentenced Richardson to fifty-five years executed in the Indiana Department of Correction.

Richardson now appeals. Additional facts will be provided if necessary.
Richardson v. State, supra.
The court appended a footnote after the second sentence in the passage quoted above, in which it explained that
[a]ll three defendants were charged with murder, but only Richardson was found guilty. The trial court did not find sufficient evidence to prove beyond a reasonable doubt that Heffner and Gilbert were knowing accomplices in Kendall's murder.
Richardson v. State, supra.

As noted above, Richardson raised two issues in his appeal: one of which was that the court “abused its discretion” when it excluded “a Facebook message” from the evidence that was introduced at trial. Richardson v. State, supra. The other issue was whether the prosecution “presented sufficient evidence beyond a reasonable doubt to rebut Richardson's claim of self-defense.” Richardson v. State, supra.

The Court of Appeals then began its analysis of the arguments and facts outlined above in a section of the opinion that is entitled “discussion and decision.” Richardson v. State, supra. This post examines those issues in the order that the Court of Appeals followed. 

The court therefore began its analysis with Richardson’s argument concerning the trial judge’s excluding the Facebook message:

Richardson contends that the trial court abused its discretion when it excluded a Facebook message between Kendall and a third party from the evidence admitted at trial. The trial court has inherent discretionary power over the admission of evidence, and its decisions are reviewed only for an abuse of that discretion. Bowman v. State, 73 N.E.3d 731, 734 (Ind. Ct. App. 2017), trans. denied. Accordingly, we will reverse the trial court's decision only when it is clearly against the facts and circumstances before the court. Id. Even if the trial court abused its discretion in admitting evidence, the judgment will be undisturbed if the decision to admit evidence is harmless error. Id. `Harmless error occurs “when the conviction is supported by such substantial independent evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction.”’ Id. (quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)).

During his case-in-chief, Kendall called Detective Grant Melton of the Indianapolis Metropolitan Police Department (Detective Melton). Detective Melton testified about his examination of the password-protected cellphone that had been recovered from Kendall's body. During his examination, Detective Melton retrieved a Facebook profile under the name `Bandman Trapp.’ (Transcript Vol. III, p. 63). Through Facebook's Messenger application, Detective Melton discovered a conversation between Bandman Trapp and another account with the name `Little L Mike Brookside’ from a couple days prior to the shooting. (Tr. Vol. III, p. 64). Richardson moved to admit the message and the State objected on grounds of improper foundation, relevance, and hearsay.

After the trial court expressed concerns about the evidentiary foundation of the message, Richardson questioned Detective Melton about the author of the message and the recovery of the data during follow-up questioning. Upon being interrogated by the State, Detective Melton noted that the Facebook account could not only be accessed through the cellphone that was recovered at the scene, but could also be accessed through any computer or any other telephone. `Other than [ ] having seen Bandman Trapp on that message,’ Detective Melton had `no idea who made that statement or who composed that message.’ (Tr. Vol. III, p. 72). He clarified that he did not know who composed the message because anyone could sign into that account on a computer and compose the message which `would then sync to that phone if it's signed into the account.’ (Tr. Vol. III, p. 72). After the trial court denied the admission of the message based on foundation grounds, Richardson made an offer to prove. In his offer to prove, Richardson indicated that the exhibit would show that on October 1, 2015, Kendall, under his Facebook account of Bandman Trapp, messaged Little L Mike Brookside, `Nah I'm boutta finesse hoodie for this strap but I need you[,]’ which Richardson represented to mean, `I'm about to rob somebody for a black gun.’ (Tr. Vol. III, pp. 83, 84).
Richardson v. State, supra.
The Court of Appeals then explained that to
lay a foundation for the admission of evidence, the proponent of the evidence must show that it has been authenticated.” Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans. deniedIndiana Rule of Evidence 901(a) provides that `[t]o 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.’ Absolute proof of authenticity is not required. M.T.V. v. State, 66 N.E.3d 960, 963 (Ind. Ct. App. 2016), trans. denied. Rather, the proponent of the evidence must establish only a reasonable probability that the evidence is what it is claimed to be, and may use direct or circumstantial evidence to do so. Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied. Once this reasonable probability is shown, any inconclusiveness of the evidence's connection with the events at issue goes to evidential weight, not admissibility. Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied.

`Letters and words set down by electronic recording and other forms of data compilation are included within Rule 901(a).’ Wilson v. State, 30 N.E.3d 1264, 1268 (Ind. Ct. App. 2015), trans. denied. Moreover, Evidence Rule 901(b) provides a non-exhaustive list of evidence that satisfies the authentication requirement. One example is where there is evidence describing a process or system and showing that it produces an accurate result. Evid. R. 901(b)(9). Another example, provided in Evidence Rule 901(b)(4), is where, taken together with all the circumstances, the evidence has distinctive characteristics in appearance, contents, or substance. Federal Rule of Evidence 901(b)(4) uses language identical to that of Indiana Rule of Evidence 901(b)(4). `We have previously acknowledged that federal courts have recognized Federal Rule of Evidence 901(B)(4) as one of the most frequently used means to authenticate electronic data, including text messages and emails.’ Wilson, 30 N.E.3d at 1268.
Richardson v. State, supra.
The Court of Appeals goes on to explain that in Wilson,
we addressed whether messages sent through a Twitter social media account were properly authenticated as having been authored by the defendant. Id. at 1268. During trial, a witness testified that she often communicated with Wilson on Twitter and had general knowledge of the account by its `@Nell_FearNoMan’ header. Id. at 1268-69. The contents of the account included pictures depicting Wilson holding guns that matched the description of those used in the crime. Id. at 1269. Moreover, there was testimony that Wilson was affiliated with two gangs, and the @Neil_FearNoMan  Twitter account frequently used terms referring to those gangs, showing that the author of the messages was affiliated with them. Id. We concluded that “`taken together, the witness testimony identifying the Twitter account as belonging to Wilson and the content posted on the account, including pictures and gang references, are more than sufficient to authenticate the Twitter posts as being authored by Wilson.’ Id.

In M.T.V., M.T.V. admitted, in an interview with law enforcement officers, to having had Facebook conversations with B.E., in which B.E. threatened to shoot up the school on April 20, 2018. M.T.V., 66 N.E.3d at 963-64. The Facebook records introduced at the hearing contained the content M.T.V. admitted to. Id. at 964. Furthermore, in addition to having distinctive characteristics in content, the Facebook records were also supported by an affidavit from Facebook's authorized records custodian, which specified, inter alia, that the records were made and kept by Facebook's automated systems and were made at or near the time the Facebook user transmitted the information. Id. At the hearing, law enforcement testified that the procedure used to obtain the Facebook records was an ordinary procedure, previously used for criminal investigations involving Facebook. Id. Concluding that, collectively, the State had established the requisite reasonable probability that the Facebook records corresponded to M.T.V.'s and B.E.'s accounts and that M.T.V. and B.E. authored the conversations therein, we found the records properly authenticated. Id.
Richardson v. State, supra.
The court goes on to point out that
[h]ere, Detective Melton described the procedure used to unlock the password-protected cellphone and after opening up the Facebook application, he located an account under the name of Bandman Trapp. Upon preliminary questioning by the State, Detective Melton explained that there are several ways a Facebook account could be accessed. He clarified that anyone who signed into the Facebook account, through a computer or cellphone, could compose messages that would then sync to the Facebook application on the recovered cellphone. In other words, Detective Melton had `no idea who made that statement or who composed that message.’ (Tr. Vol. III, p. 72). Unlike the defendants in Wilson and M.T.V., Richardson did not present any evidence describing distinctive characteristics that could connect the particular statement to Kendall, nor did he present any other indicia of reliability establishing Kendall as the author of the contested statement. Accordingly, the trial court did not abuse its discretion when it refused to admit the Facebook message.
Richardson v. State, supra.
The Court of Appeals then took up Richardson’s next argument, i.e., “that the State failed to present sufficient evidence beyond a reasonable doubt to rebut his claim of self-defense.” Richardson v. State, supra. The court began this analysis by explaining that the standard for 
reviewing a challenge to the sufficiency of evidence to rebut a claim of self-defense is the same standard used for any claim of insufficient evidence. Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh the evidence nor judge the credibility of witnesses. Id. If there is sufficient evidence of probative value to support the conclusion of the trier of fact, the judgment will not be disturbed. Id.

`A valid claim of self-defense is a legal justification for an otherwise criminal act.’ Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). To prevail on his self-defense claim, Richardson must show that he: (1) was in a place where he had a right to be; (2) acted without fault; and (3) was in reasonable fear of apprehension of bodily harm. Indiana Code § 35-41-3-2; Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). A person who provokes, instigates, or participates willingly in the violence does not act without fault for the purposes of self-defense. Shoultz v. State, 995 N.E.2d 647, 660 (Ind. Ct. App. 2013), trans. denied. A mutual combatant, whether or not the initial aggressor, must declare an armistice before he may claim self-defense. Wilson, 770 N.E.2d at 801.
Richardson v. State, supra.
The court goes on to explain that
[w]hen self-defense is raised and finds support in the evidence, the State bears the burden of negating at least one of the necessary elements. Id. at 800. The State may meet this burden by offering evidence directly rebutting the defense, by affirmatively showing that the defendant did not act in self-defense, or by relying on the sufficiency of the evidence from its case-in-chief. Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). If a defendant is convicted despite his self-defense claims, we will reverse only if no reasonable person could say that self-defense was negated beyond a reasonable doubt. Wilson, 770 N.E.2d at 801.
Richardson v. State, supra.
The Court of Appeals goes on to analyze Richardson’s claim of self-defense which It describes as resting
entirely on Gilbert's testimony and the surveillance video of the incident. He presented a theory that he shot Kendall in response to Kendall grabbing a gun from his waistband and clicking the trigger, which failed to fire because there was no bullet in the chamber. Upon rendering its guilty judgment, the trial court discussed Richardson's self-defense claim as follows:

`The [c]ourt finds that first at looking at this, and as I indicated, I looked at this, the tapes for about four hours last night and I looked at, again, reviewed two critical parts of the tape, one the part of the shooting, the second, the part of the grocery store and whether or not there was a handoff of a weapon or not. Those to me were the two critical points at issue.... The [c]ourt does not believe that this was self-defense. It believes the State's case in chief proved beyond a reasonable doubt, one, that [Richardson] did fire the shot and did knowingly killed [Kendall], two, that it was not a matter of self-defense. The film does not show the decedent in this case attacking anyone, raising his hands or doing anything, even if he had his hand on the gun outside. [Gilbert] is simply not credible on this point. [Gilbert's] testimony indicates he was standing not near—that he was merely watching and not doing anything, the tape is pretty clear to the [c]ourt that once [Richardson] shoots [Kendall], everybody is moving and everybody is moving quickly. And so the [c]ourt doesn't find him credible on that point and does find the tape to be pretty clear, that the [three defendants] fled the area, they did not return to the area in terms of a self-defense claim, in the common language of things, they didn't stand their ground, wait for the police and tell them that it was a justified shooting. They didn't do anything to aid [Kendall]. And, again, this is someone, according to [Gilbert], they were all friends and had no beef against each other and that they all got along ... This was a deliberate shooting. It was a deliberate killing.’
(Tr. Vol. III, pp. 99-101).
Richardson v. State, supra.
The opinion then goes on to explain that in his appeal,
Richardson urges us to re-interpret the images captured by the surveillance video to find that Kendall made a movement `which could have been a reach for his loaded weapon’ immediately before Richardson pointed a gun and shot Kendall. (Appellant's Br. p. 20). He also argues that the trial court `could not properly consider Gilbert's testimony, and any lack of his credibility, as evidence against Richardson.’ (Appellant's Br. p. 17). However, as there were no eyewitnesses to the killing and Gilbert was the only defendant testifying, Richardson relied on Gilbert's version of the facts in addition to his interpretation of the surveillance video to bolster his claim of self-defense. In fact, during closing argument, Richardson compared Gilbert's testimony and the images captured on the surveillance tapes almost side-by-side, noting that `Gilbert got up there and told the truth.’ (Tr. Vol. III, p. 93). If any error existed in the trial court's consideration of Gilbert's testimony when weighing its judgment against Richardson, it was invited by Richardson and he cannot now be heard to complain. In other words, Richardson's entire argument is an invitation to reweigh the evidence displayed on the surveillance video and Gilbert's credibility. We decline to accept his invitation. See Wilson, 770 N.E.2d at 801.


Based on the foregoing, we hold that the trial court properly excluded a Facebook message from the evidence at trial; and the State presented sufficient evidence beyond a reasonable doubt to rebut Richardson's claim of self-defense.
Richardson v. State, supra.
The Court of Appeals therefore affirmed Richardson’s conviction for murder. Richardson v. State, supra.