QUAIL v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] In the early hours of the morning while L.Y. slept in her bedroom, Joseph Quail fired five bullets into the front of her car, which was parked nearby. Quail appeals his resulting conviction for Level 5 felony criminal recklessness, arguing that the conviction is based on cell phone location records that were improperly admitted and that the State failed to establish his conduct created a substantial risk of bodily injury to another. We affirm.

Facts and Procedural History

[2] After Quail and L.Y.’s romantic relationship ended in 2022, L.Y. obtained a protective order prohibiting Quail from contacting her or coming to her residence. L.Y. rented a house from her neighbor Richard Shirley (“Shirley”), who lived approximately forty feet away. They shared a driveway between their houses. In the months leading up to the incident, Shirley would often see Quail walking around outside L.Y.’s house in the middle of the night. Aware that Quail was prohibited from being on the property due to the protective order, Shirley had put up a “no trespassing” sign to try to keep him away.

[3] In the early morning hours of April 11, 2023, both L.Y. and Shirley were awakened by noises outside. L.Y. heard what she thought was tapping on her bedroom window, followed by a car alarm and the sound of a vehicle driving away. At the same time, Shirley was awakened by what he described as a heavy, metallic “bap” sound that repeated multiple times. L.Y.’s car was parked twenty to thirty feet from her bedroom window.

[4] The next morning, police found five shell casings near the car and later matched four of them to a rifle found in Quail's home. Police obtained cell phone location records for Quail's phone pursuant to a search warrant. The records were accompanied by a Certificate of Authenticity from Quail's cell phone provider, verifying they were kept in the ordinary course of business. A detective certified in cell phone data analysis reviewed these records, which showed Quail's phone connecting to wireless access points near L.Y.’s residence five times between 1:22 a.m. and 1:34 a.m. on the night of the shooting.

[5] During the jury trial, the State sought to enter the cell phone records through a Detective's testimony. The Detective testified he is certified in analyzing “call detail records and geolocation analysis of mobile phones,” and was trained on longitude and latitude coordinates in determining a cell phone's location during his military training. Tr. Vol. 4 at 47. He explained the process of collecting cell phone data, and the usage of longitude and latitude in determining a cell phone's location. After this testimony, the Certificate of Authenticity was admitted by the trial court with no objection by Quail.

[6] When the State requested to enter the cell phone records in evidence, Quail objected only to the breadth of the documents as “overly prejudicial” because he had parental visitation rights with his child and thus had a valid reason to be in the area. Tr. Vol. 3 at 52. After the trial court limited the documents admitted to the few days around April 11, 2023, Quail reiterated his objection that records were “highly prejudicial,” but noted that “[i]f [the] Detective is going to testify specifically to [April 11], I think that's different, I think he can–[.]” Id. at 63. As for Quail's objections to the Detective's qualifications to interpret the records, the trial court concluded that the State had met its burden because the Detective had testified to his “expertise” and “skills ․, which are beyond the average person[.]” Id. at 58.

[7] A jury ultimately convicted Quail of various charges, including criminal recklessness. He now appeals.

Discussion and Decision

1. Sufficiency of the Evidence

[8] “[S]ufficiency-of-the-evidence arguments implicate a ‘deferential standard of review,’ in which this Court will ‘neither reweigh the evidence nor judge witness credibility,’ but lodge such matters in the special ‘province’ and domain of the jury, which is best positioned to make fact-centric determinations.” Carmack v. State, 200 N.E.3d 452, 459 (Ind. 2023) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), reh'g denied, cert denied, 586 U.S. 1090 (2019)). “In reviewing the record, we examine all the evidence and reasonable inferences supporting the verdict,” and we “will affirm the conviction if probative evidence supports each element of the crime beyond a reasonable doubt.” Id. (internal quotations omitted).

[9] To convict Quail of criminal recklessness as a Level 5 felony, the State was required to establish beyond a reasonable doubt that Quail, recklessly, knowingly, or intentionally, performed an act that created a substantial risk of bodily injury to another person by shooting a firearm into a place where people are likely to gather, “to wit: a [car] belonging to [L.Y.].” See I.C. § 35-42-2-2(a), (b)(2)(A); Appellant's App. Vol. 2 at 29.

[10] While not disputing a car in general can be considered a place where people are likely to gather, Quail contends “there was no evidence that the vehicle was being used in that manner” at 1:30 a.m. Appellant's Br. at 10. The criminal recklessness statute requires only a place where people are likely to gather, not that they are actually gathered inside. See Grannan v. State, 174 N.E.3d 232, 235 (Ind. Ct. App. 2021) (rejecting the argument that the evidence was insufficient because the homeowner was outside of the house at the time the defendant fired a shot into the house).

[11] The evidence from the trial showed Quail repeatedly fired a gun into a car parked near two occupied residences. L.Y.’s car was parked in a shared driveway, directly in front of her bedroom window where she was sleeping. The shell casings show a straight line of fire extending from Quail's position, through the car, and toward L.Y.’s bedroom just twenty feet away. Her neighbor Shirley's house stood only forty feet away across the shared driveway.

[12] Quail fired multiple shots near the two residences in the middle of the night – a time when occupants would be expected to be present in their homes. Indeed both L.Y. and Shirley were present. L.Y. heard the tapping on the window and the gunfire awakened Shirley, demonstrating his immediate proximity to the shooting. A car parked in this location - between occupied homes and in a shared residential driveway - clearly qualifies as a place where people are likely to gather.

[13] Quail also contends that his actions presented no substantial risk of bodily injury to a person because L.Y. was not “inside or near the line of fire,” with “the vehicle in this instance” serving “as an impenetrable barrier between [him] and [L.Y.],” therefore, any determination of a substantial risk of bodily injury was pure speculation. Appellant's Br. at 11. A “substantial risk” is one that has “substance or actual existence.” Woods v. State, 768 N.E.2d 1024, 1027 (Ind. Ct. App. 2002). “[T]he criminal recklessness statute does not require that the defendant ‘cause’ any injury; rather the crime is committed if the defendant recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another.” DeWhitt v. State, 829 N.E.2d 1055, 1062 (Ind. Ct. App. 2005) (citing I.C. § 35-42-2-2(b)(1)), reh'g denied (emphasis in original).

[14] For purposes of the statute, we have previously held that individuals placed in a line of fire, whether from direct fire or ricochet, are at a substantial risk of bodily harm. In Smith v. State, 688 N.E. 2d 1289, 1291 (Ind. Ct. App. 1997), a substantial risk of bodily injury existed when Smith test fired his gun at least six times toward an old car in his backyard, with an inhabited home in the line of fire and a “large mass of people” within “a stone's throw” in the street behind Smith's backyard. Id. Similarly, in Woods, 768 N.E.2d at 1028, a substantial risk of bodily injury existed when Woods shot multiple rounds from his house into a residential neighborhood, with “individuals near Woods’ line of fire.” We observed that “adults were sitting on a nearby porch and children were riding their bikes and playing outside of the house next door” and found that it was “not improbable that a bullet could have ricocheted and struck one of the nearby people or that a child could have ridden his or her bicycle into the line of fire.” Id.

[15] Based on Smith and Woods, the State established that Quail's conduct created a substantial risk of bodily injury to L.Y. and her neighbor by shooting a firearm in a car near their residences. Moreover, the recovered shell casings indicate that from his position Quail had a straight line of fire extending from the place where the casings were recovered, through L.Y.’s car and into L.Y.’s bedroom, where L.Y. was woken up by a tapping sound on her window and looked outside. Because it is not improbable that one of the bullets could have ricocheted and harmed the occupants of the nearby homes, the State presented sufficient evidence to prove criminal recklessness.

2. Admission of Evidence

[16] Quail makes a two-fold argument challenging the admission of the cell phone records placing him by L.Y.’s home at the time of the crime. First, Quail claims the records were not properly authenticated under the business records exception. He then argues the Detective was not sufficiently skilled to explain the significance of the records. We apply an abuse-of-discretion standard to a trial court's decision about the admissibility of evidence and reverse 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. McCoy v. State, 193 N.E.3d 387, 390 (Ind. 2022).

A. Foundation

[17] First, Quail contends that the Certificate of Authenticity was insufficient to authenticate the cell phone data as a business record under the Indiana Rules of Evidence. However, Quail never made an objection, let alone a foundational objection, to the admission of the Certificate of Authenticity; rather, he explicitly confirmed he had “no problem” with the business record certification provided by Quail's cell phone provider. Tr. Vol. 3 at 32. We agree with the State that because Quail failed to raise this objection at trial, his argument is now waived for our review. Palilonis v. State, 970 N.E.2d 713, 730 (Ind. Ct. App. 2012) (“[T]o preserve an issue for appeal, a contemporaneous objection must be made when the evidence is introduced at trial.”), trans. denied.

[18] Waiver notwithstanding, the records properly qualify for admission pursuant to Indiana Trial Rule 902(11).¹ The Legal Compliance Analyst of Quail's cell phone provider averred in the Certificate that the records were created at approximately the same time as the Certificate and were kept as part of the cell phone provider's ordinary and regular business activity.

[19] Quail now argues that this authentication is insufficient because the records were generated by a computer process. According to Quail, the State was required to independently establish that this computer process was trustworthy and accurate pursuant to Evidence Rule 901(b)(9).² Indiana Rule of Evidence 901(b)(9) requires the proponent of an item of evidence generated by a “Process or System” to produce “[e]vidence describing [the] process or system and showing that it produces an accurate result.”

[20] Quail cites no authority—and we cannot locate any—for the proposition that the self-authentication requirement for business records under Evidence Rule 902(11) cannot also certify that the program used to generate or store the cell phone data was verified as operating properly at all relevant times. In fact, Evidence Rule 902(11) directly contradicts Quail's claim as the Rule specifically states that “the circumstances” of preparing the business records cannot “indicate a lack of trustworthiness.”

[21] The cell phone provider's Legal Compliance Analyst averred under oath in the Certificate of Authenticity that “the process or system is regularly verified,” and “at all times ․ functioned properly and normally[.]” Ex. at 43. Based on this Certification, Quail fails to show the court erred in admitting these records.

B. Skilled Witness Testimony

[22] In a related argument, Quail claims that, after the cell phone data was admitted, the trial court erroneously allowed the Detective to explain the significance of the data to the jury as a skilled witness pursuant to Evidence Rule 701.

[23] Similar to his claim on the admissibility of the cell phone records, Quail's argument is waived for our review because he did not contemporaneously object to the Detective's testimony at trial. See Shoda v. State, 132 N.E.3d 454, 460 (Ind. Ct. App. 2019) (“It is axiomatic that to preserve a claim of evidentiary error for purposes of appeal, a defendant must make a contemporaneous objection at the time the evidence is introduced.”).

[24] Waiver notwithstanding, the Detective qualified to testify as a skilled witness. Indiana Evidence Rule 701 governs the admission of opinion testimony by both lay witnesses and skilled witnesses. See Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015) (Evidence Rule 701 encompasses both ordinary lay witness opinions and skilled witness opinions). “The difference between skilled witnesses and ordinary lay witnesses is their degree of knowledge concerning the subject of their testimony.” Id. “Neither has the ‘scientific, technical, or other specialized knowledge’ of experts ․ and both ordinary lay [witnesses] and skilled witnesses testify from their perceptions alone, not necessarily established scientific principles.” Id. at 352-53. “Skilled witnesses, though, possess knowledge beyond that of the average juror.” Id. at 353. “This additional knowledge allows a skilled witness to perceive more information from the same set of facts and circumstances than an unskilled witness would.” Id. We have noted that “[s]killed witness testimony generally needs only rise to a relatively low bar in order to be admissible[.]” Hawkins v. State, 884 N.E.2d 939, 945 (Ind. Ct. App. 2008), trans. denied.

[25] In McCowan v. State, 10 N.E.3d 522, 532-33 (Ind. Ct. App. 2014), summarily aff'd in relevant part, 27 N.E.3d 760, 768 (Ind. 2015), the trial court properly allowed the detective's testimony on cell phone location records because the detective “did not personally perform any calculations or analysis to render an opinion about the location” of the phone but was only providing “contextual testimony explaining cell phone networks and location estimates and plotting estimated locations from Verizon's record on maps.” Id. The detective “did not offer any expert opinion testimony, but testified based on his specialized training about general principles to help the jury understand the information[.]” Id. at 533.

[26] Similar to McCowan, the Detective not only presented an easily understandable overview of the tracking and compilation method of data, but he also informed the jurors that the map coordinates in the records were an estimated location, providing an area range within which the cell phone was present during the recorded time. See id. The Detective's testimony did not represent an opinion about the cell phone's location, and he did not perform any calculations or testify about the underlying science behind the technology. Rather, his specialized certification and training on using longitude and latitude coordinates allowed him to translate the information from those records into a pictorial representation on Google Maps, a format more easily understandable for the jury.

[27] Accordingly, we conclude that the trial court did not abuse its discretion by qualifying the Detective as a skilled witness by virtue of his specialized training in cell phone data analysis.

Conclusion

[28] The State presented sufficient evidence beyond a reasonable doubt to sustain Quail's conviction for criminal recklessness. In addition, and Quail's waiver notwithstanding, we conclude the trial court did not abuse its discretion in admitting the cell phone records or in allowing the Detective to testify as a skilled witness.

[29] Affirmed.

FOOTNOTES

1.   Indiana Evidence Rule 902(11) (bolding in original) provides:The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:(11) Certified Domestic Records of a Regularly Conducted Activity. Unless the source of information or the circumstances of preparation indicate a lack of trustworthiness, the original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification under oath of the custodian or another qualified person. ․

2.   Quail also asserts that “the testimony of the ‘silent witness’ behind the record must be authenticated[.]” Appellant's Br. at 13. “The silent witness theory is often invoked when a proponent seeks to introduce photographic or video evidence for the purpose of depicting certain events and no [ ] witness testified regarding their first-hand observations of those events.” Kirby v. State, 217 N.E.3d 575 (Ind. Ct. App. 2023), trans. denied. We find no case law extending the “silent witness theory” to cell phone records nor did appellant provide any. Therefore, we do not address it in this appeal.

DeBoer, Judge

[30] May, J., and Tavitas, J., concur.