Shavon McFadden, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Shavon McFadden, a customer, helped herself to tobacco products behind the counter of a Speedway gas station while the clerk was away and, after being confronted by the clerk, she left without paying for them. A jury found McFadden guilty of theft. She appeals, raising one issue which we restate as whether the trial court abused its discretion by admitting the cell phone recordings of Speedway's surveillance video in the absence of the original footage. Finding that McFadden waived the issue for our consideration, we affirm her conviction for theft.

Facts and Procedural History

[2] In December 2023, while working as a clerk at a Southport Speedway gas station in Indianapolis, Brandon Rasp left the cash register to use the restroom. As Rasp walked out of the restroom a few minutes later, he “encountered [McFadden] bending over on [the] cigarette rack behind the sales counter[,]” taking “some Cigarillo Swisher Sweets” and “a pack of Newports.” Transcript Vol. 2 at 182. The Newports cost $10.08 after tax and the Swishers cost approximately $1.30. See id. As Rasp approached, McFadden began yelling at Rasp for being in the restroom too long, demanded he help her, and offered Rasp a five-dollar bill for the items. Rasp would not accept the bill because it “would not cover the sale” and “[w]e don't do business with individuals who ․ trespass[ ] on employee[-]only parts of the property.” Id. at 187.

[3] Rasp pressed the panic button near the cash register, and as McFadden left the store with the merchandise, he followed her into the parking lot and took a picture of her car's license plate. Rasp claimed that before McFadden got into her car, she struck him “four to six times on [his] right cheek and temple,” then “tried to run [Rasp] over[.]” Id. at 187-188. Rasp ducked behind a pole to avoid being run over by McFadden, who then left the parking lot.

[4] The police arrived five to ten minutes later, and Rasp gave them McFadden's license plate number. Another police officer on patrol heard the description of McFadden's vehicle over the radio, saw her driving the described car, and performed a traffic stop. Inside McFadden's car, the officer found a five-dollar bill, Swisher Sweet cigarillos, and an unopened pack of Newport cigarettes. The police took Rasp to the scene of the traffic stop where he identified McFadden as the perpetrator.

[5] The next day, the State charged McFadden with Level 6 felony criminal recklessness,¹ Class A misdemeanor battery resulting in bodily injury,² and Class A misdemeanor theft.³

[6] The day after the incident, Southport Police Officer Jameral Thomas viewed and then unsuccessfully attempted to download the original video footage of Speedway's surveillance cameras containing McFadden's encounter with Rasp. Instead, Officer Thomas “pulled out [his] cell phone and started recording from [his] cell phone.” Tr. Vol. 3 at 127. At trial, the State introduced three exhibits consisting of Officer Thomas's cell phone recordings of the surveillance footage.⁴ Although the videos were admitted into evidence through Rasp's testimony, Officer Thomas later testified that he recorded the videos of the footage, and he had not altered the footage. See id. Exhibit 1 was a video from inside the store initially showing McFadden behind the counter with her back to Rasp while he pressed the panic button under the counter, then her walking out from behind the counter with Rasp following her. See Ex. 1 at 00:00-00:15. Exhibit 1A was another video from inside the store showing McFadden leaving the store with Rasp following behind her, some movement outside the store involving Rasp and McFadden, and then Rasp reentering the store. See Ex. 1A at 00:00-00:37. Exhibit 1B was a video from outside the store showing what appeared to be scuffling between two individuals, a person entering a car parked in front of the store, and the car lurching forward before reversing and driving out of view. See Ex. 1B at 00:00-00:24.

[7] Before the cell phone videos were admitted into evidence, Rasp testified that he had no access to the surveillance cameras and no way of knowing if someone could alter them. However, Rasp testified that the three videos fairly and accurately depicted the interaction with McFadden, without any edits, and that nothing in the video differed from what actually happened. See Tr. Vol. 2 at 194, 197.

[8] Defense counsel objected on foundational grounds to the admission of the videos:

Your Honor, he says he doesn't know if – either individuals or, you know, either entities have edited these. He has no access to these. He is not keeper of records. He has never been able to access them. He also has no independent knowledge of how they're stored because he has no access to them. So I would be objecting, Your Honor, regarding the foundation.

[9] Id. at 196-197. Before ruling on this objection, the trial court heard arguments from the parties, including defense counsel's argument that the videos showed “evidence of editing.” Id. at 198. The following discussion ensued:

THE COURT: What—what edits are you talking about?

[Defense counsel]: Well, Your Honor, regarding the—the timestamp is removed at multiple points and it is blurred at multiple points. Like not just as in like—it is actually like from—like time has been removed and then stitched together.

THE COURT: Well, here's my problem here is that we're not talking about a silent witness. Are we all in agreement on that?

[State]: Yes.

THE COURT: The video is just strictly of this individual alone and that he's seen—viewed them and he can say that it's true and accurate and that's how he remembers it; is that correct?

[State]: Yes.

[Defense counsel]: That's what he says.

THE COURT: If you want to impeach, you'll have the opportunity to do so.

[10] Id. at 198-199 [sic throughout]. The trial court admitted the three videos into evidence and played them for the jury. The jury acquitted McFadden of criminal recklessness and battery but convicted her of theft. The trial court sentenced McFadden to 365 days in jail with 363 days suspended and 180 of those days to be served on probation. McFadden appeals.

Discussion and Decision

[11] McFadden argues the officer's cell phone recording of Speedway's surveillance videos was offered as substantive evidence, and that the State's foundation was inadequate for their admission. “We review the admission of evidence for abuse of discretion.” Irwin v. State, 229 N.E.3d 567, 570-71 (Ind. Ct. App. 2024), trans. denied. “ ‘We will reverse only if the trial court's ruling was clearly against the logic and effect of the facts and circumstances before it.’ ” Id. (quoting McCallister v. State, 91 N.E.3d 554, 561 (Ind. 2018)).

[12] “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Ind. Evidence Rule 901(a). The foundation required for admitting a video depends on its use at trial. See Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014), cert. denied.⁵ If the video is solely being used for demonstrative purposes, an adequate foundation only requires “testimony ․ that [it] accurately depict[s] the scene or occurrence as it appeared at the time in question[.]” Id. (quoting Smith v. State, 491 N.E.2d 193, 195 (Ind. 1986)). Evidence offered for demonstrative purposes acts as an “ ‘aid[ ] that assist[s]’ in a human witness's testimony.” Kirby v. State, 217 N.E.3d 575, 583 (Ind. Ct. App. 2023) (quoting Knapp, 9 N.E.3d at 1282), trans. denied. But a video, including surveillance footage, can also be admitted as substantive, rather than demonstrative, evidence. Mullis v. State, 256 N.E.3d 567, 586 (Ind. Ct. App. 2025), trans. denied. “When surveillance videos ․ are admitted as substantive evidence, they serve ‘as silent witness[es] as to what activity is being depicted.’ ” Id. (quoting Knapp, 9 N.E.3d at 1282). This evidence triggers a heightened foundational requirement, including “a strong showing of authenticity and competency, including proof that the evidence was not altered.” McCallister, 91 N.E.3d at 562. This burden is “rather strict.” Kirby, 217 N.E.3d at 584 (quoting McFall v. State, 71 N.E.3d 383, 388 (Ind. Ct. App. 2017)).

[13] From our review of McFadden's objections at trial, supra, defense counsel objected to the admission of the videos but neither mentioned the silent witness theory nor raised an argument that the videos required proof that the evidence was authentic, competent, and unaltered because they were being used as substantive evidence. Defense counsel also said nothing when the trial court confirmed that the objection related to the video was not a silent witness issue and asked “[a]re we all in agreement on that?” Tr. Vol. 2 at 199. Now, on appeal, McFadden argues the videos were being offered as substantive evidence, and the foundation for using them as such was inadequate. See Appellant's Brief at 10 (“The context in which the videos were used shows they were relied upon as silent witnesses, or substantive evidence.”). “[A]n objection on grounds other than those raised on appeal [ ] is ineffective to preserve an issue for appellate review.” Raess v. Doescher, 883 N.E.2d 790, 797 (Ind. 2008), reh'g denied. Challenges to the admission of evidence may not be presented on appeal unless there is a timely objection at trial “stat[ing] the specific ground, unless it was apparent from the context.” Evid. R. 103(a)(1)(B). “Failure to object at trial waives an issue on appeal unless the appellant can show fundamental error[.]” Knapp, 9 N.E.3d at 1281. Thus, because McFadden failed to properly preserve the silent witness foundation issue, McFadden's evidentiary argument is waived unless she can show fundamental error. Since she did not argue that any unpreserved claims of error amount to fundamental error, she has waived that claim as well. See Ind. Appellate Rule 46(A)(8); see also Ward v. State, 203 N.E.3d 524, 532 (Ind. Ct. App. 2023) (“Ward offers no argument that any of his unpreserved claims of error amounted to fundamental error, and, thus he has waived that claim for appeal as well.”).

Conclusion

[14] McFadden waived any foundational objection based on the silent witness theory to the State's cell phone recordings of the surveillance videos. Thus, we affirm McFadden's conviction.

[15] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-2-2(b)(1)(A).

2.   I.C. § 35-42-2-1(d)(1).

3.   I.C. § 35-43-4-2(a).

4.   Officer Thomas testified at trial that the Speedway manager showed him the surveillance footage, but they were unable to download it—prompting him to use his cell phone to record it. See Tr. Vol. 3 at 127.At a May 2024 pretrial hearing, the State informed the trial court that, after much difficulty, it had obtained surveillance footage from Speedway recorded on the date of the incident, but that footage had been from the wrong time of day. Tr. Vol. 2 at 47. The State, believing the original footage of the incident had been lost, only discovered on April 19, 2024, that Officer Thomas had taken a video of the surveillance footage on his cell phone.

5.   While Knapp addresses the silent witness theory's application to photographs, this “theory has been extended to the use of video recordings.” Toney v. State, 206 N.E.3d 1153, 1155 (Ind. Ct. App. 2023) (citing Mays v. State, 907 N.E.2d 128, 131 (Ind. Ct. App. 2009), trans. denied), reh'g denied, trans. denied.

DeBoer, Judge.

Judges Bailey and Vaidik concur. Bailey, J., and Vaidik, J., concur.