Antonio Maurice Wynn, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Antonio Maurice Wynn appeals from his convictions of murder and Level 3 felony armed robbery, raising several issues in support of his request for reversal of his convictions. Concluding that there is no error, fundamental or otherwise, we affirm Wynn's convictions.

Issues

[2] Wynn presents the following issues for our review, which we reorder and restate as:

I. Whether the trial court's intermittent rather than regular admonishments to the jury not to discuss the case, conduct their own research, or independently investigate the case after giving a preliminary instruction not to do the same amounted to fundamental error, depriving Wynn of a fair trial.

II. Whether there was sufficient independent evidence of Wynn's inclusion in a conspiracy to rob and kill the victim before the admission of text messages between two co-conspirators made during and in furtherance of the conspiracy, implicating his participation in the robbery and murder.

III. Whether the evidence is sufficient to support his convictions of murder and armed robbery.

Facts and Procedural History

[3] Chicago residents Stephanie Szamlewski and Kerwin Pollard travelled to Indianapolis on March 5, 2022, to offer over one hundred items of clothing and accessories for sale out of their vehicle. Szamlewski received recommendations from an acquaintance as to locations where they could make their sales. They stayed overnight in a hotel and planned to head to those locations the next day.

[4] On March 6, the two packed their merchandise in Szamlewski's 2022 Chevy Blazer and drove to a barber shop where Pollard sold multiple items. He received a tip as to another location on 38th Street to make sales, but that business was closed for the day. The two then bought food at the Subway restaurant next door. Pollard noticed two men in the parking lot wearing the type of clothing he and Szamlewski sold. He approached them about buying some of their items. One man, later identified as Julius Thomas, was wearing a black Versace t-shirt. The other man, later identified as Carlos Bryant, was wearing a gray Nike track suit. After the men examined some of the items for sale but did not buy anything, Pollard gave them his contact information should they later decide to make a purchase.

[5] Someone they met at the barber shop contacted Pollard, and the two made additional sales at a different location. While there, Thomas and Bryant contacted Pollard about the clothing. Pollard and Szamlewski returned to the Subway restaurant to meet with them. Thomas asked Pollard to follow him to his girlfriend's house, which was nearby. They followed Thomas, who was driving Dejiauana Horne's white Malibu, to a nearby residential neighborhood. Bryant, Horne, and another female were also passengers in Horne's car.

[6] It was around 3:00 p.m. when they arrived at Thomas’ girlfriend's house. Thomas, Bryant, and the females exited the Malibu. Unbeknownst to Pollard, Thomas was carrying a firearm. Pollard showed the others the merchandise in the back of the Blazer while Szamlewski stayed in the vehicle. When Szamlewski opened the vehicle door, Thomas said, “oh, I didn't know someone was in there.” Tr. Vol. 3, p. 211. Thomas then told Pollard that they needed to go to a different location because his brother also wanted to purchase some items.

[7] Szamlewski and Pollard followed Thomas, Bryant, and the two females to the new location. Thomas texted Horne that he was “about to be on BS, just to let you know.” Tr. Vol. 8, p. 138. Bryant then texted Thomas, “I don't like we can't see her.” Tr. Vol. 9, 234. Thomas replied, “Ik.”¹ Id. A few seconds later, Thomas called Wynn, ultimately calling him three times within two minutes. Around ten minutes later, Thomas texted Bryant, “When we pull up I'm a bop him and we gone.” Id. at 235. Bryant responded, “what we gon’ do about the honky”² and “how are we going to get her out?” Id. at 235-36. Thomas replied, “thts wht I'm thinking about.” Id. at 236. Bryant texted, “I feel like she got the heat. We can't see her.” Id. Next, Thomas called Wynn and spoke for sixteen seconds. Thomas immediately texted Bryant, “Ik. That's why fat cat comin.” Id. at 237. Bryant texted the reply, “Th[e]y are following us to[o] carefree.” Id.

[8] Thomas drove to a residential neighborhood on Ingram Street and parked the Malibu along a curb. Pollard parked the Blazer behind the Malibu. Horne and the other female were instructed to take the Malibu and leave. Thomas and Bryant walked behind a nearby house while Horne and the other woman left.

[9] Pollard tried to call Thomas and Bryant when they did not immediately return. Bryant came back to the Blazer and told him to wait because they were waiting for someone else to arrive. He said Thomas was inside counting the money and that the other person would be there in a few minutes. Then Bryant texted Thomas, “I told him you were counting out the cheese.”³ Id. at 238. Thomas and Bryant reappeared after a white Hyundai pulled up and parked down the street. A man, later identified as Wynn, exited the Hyundai and approached the back of the Blazer. Pollard talked with the three men as they looked through the items for sale. Wynn positioned himself so he was standing in the street parallel with Szamlewski's door as she sat in the car. Wynn feigned talking on the phone while watching Szamlewski.

[10] At 4:11 p.m., Thomas attempted to pay Pollard through Cash App but the transaction was declined. Pollard retrieved his phone from the driver's seat of the Blazer in an attempt to resolve the payment issue. When Pollard returned to the back of the Blazer, he was shot in the torso and arm. Wynn approached Szamlewski as she attempted to exit the Blazer, pointed a gun at her stomach, and threw her down on the street. Thomas and Bryant drove off in the Blazer with all of the merchandise and Szamlewski's personal items, including pink Yeezy tennis shoes, and a purse. Wynn drove away in the white car. Pollard walked to a nearby yard and collapsed. Szamlewski called 911, and officers were dispatched to the scene at 4:13 p.m.

[11] When officers arrived, they found Pollard lying on the walkway with Szamlewski holding him and pleading for help. Although police officers provided assistance to Pollard until medical personnel arrived, Pollard succumbed to the gunshot wound to his torso.

[12] At 4:47 p.m., Bryant texted the mother of his children, “just hit a lick ⁴ they won't get rid of the car once we split the money. Omw[.]” Id. at 238-39. At around 6:00 p.m. Thomas and Wynn returned to Thomas’ residence where Thomas changed his clothes. Thomas and Wynn then left in a white, four-door sedan which Wynn drove. At 6:30 p.m. Thomas texted Horne that he was done. At 6:57 p.m., Thomas texted Horne to pick him up at 3747 Drexel, which is next door to Wynn's residence.

[13] While at the crime scene, Szamlewski told the detectives that her Blazer was equipped with OnStar technology. OnStar provided detectives with information indicating that the Blazer's location was 4115 Baker Drive in Indianapolis. The Blazer was located at that address and was then towed to a secure location, photographed, and processed for DNA and fingerprints. Thomas’ palm prints were on the exterior trunk door, and his middle fingerprint was on the exterior driver's door of the Blazer. Bryant's DNA was found on the trunk of the Blazer. At the crime scene, officers located a fired bullet and two fired cartridge cases in the street along with Pollard's blood, bracelet, and lighter.

[14] On March 7, at 4:13 a.m., Thomas texted a copy of an article about Pollard's murder to Bryant. Later that day, Thomas’ girlfriend, Tiana Robinson, attempted to purchase some items at Saks Fifth Avenue with Szamlewski's credit card. Robinson then purchased a pair of Jordan 13 shoes in a child's size 10 at Foot Locker with Szamlewski's credit card. Police officers searched Thomas and Robinson's residence and discovered a red bag, two cell phones, a Ring camera, pink Yeezy tennis shoes, and a shoe box for Jordan 13 shoes in a child's size 10. Outside the residence in the back yard, detectives located a pile of fired cartridge cases. Szamlewski positively identified numerous items recovered from Thomas's residence as hers or Pollard's.

[15] Detectives requested Pollard's cell phone records from T-Mobile for his number, 754-232-8713. They learned that Pollard had received an incoming call from 317-507-5245 at 1:11 p.m. And he received an incoming call from 317-744-4226 around the time Szamlewski stated they had been at the Subway restaurant the second time. Pollard then placed two outgoing calls to 317-744-4226 shortly before his murder.

[16] Based on Pollard's call history, detectives requested cell phone records for 317-507-5245 and 317-744-4226. The 317-744-4226 number was in regular contact with 317-507-5245 throughout the day on March 6 until shortly before Pollard's murder. Contact between both numbers ceased about fifteen minutes prior to Pollard's murder and did not resume until approximately ten minutes after the murder. Detectives connected the number 317-744-4226 to Bryant via previous jail calls. Detectives determined that the phone number 463-245-8009 was also associated with Bryant and that 317-507-5245 was Thomas’ phone number.

[17] The lead detective's efforts to connect Wynn to cell phones used by Bryant and Thomas was extensive. Detective Jones learned that while incarcerated, Thomas used his assigned PIN number to make several calls to 317-652-8664, Tiana Robinson's phone number. After listening to the phone calls, Detective Jones tried to locate the person referred to in those calls as “Fat Cat.” During a general search on Facebook, she located an account under the name Fat Cat Nichols that was registered to a person named Antonio Wynn in the Indianapolis area. That person's date of birth was listed as November 4, 1991. She then searched Bureau of Motor Vehicle records and found a person named Antonio Wynn with the same date of birth. Next, pursuant to a search warrant for Antonio Wynn's Facebook records, she learned the Facebook account identifier was “thood.born2wynn.” Tr. Vol. 7, p. 81. The records also showed that Wynn was Facebook friends with an individual known as “Ju Wop.”⁵ Id. at 83. Detective Jones also learned that the individual on Facebook known as Antonio Wynn fathered children with Angelique Jackson. During the course of her investigation, Detective Jones learned that Jackson had provided the address 2817 Minocqua Place on the southeast side of Indianapolis as her address. The detective then directed members of the Violent Crime Unit to attempt to locate the person identified as Antonio Wynn on Facebook and sent officers to the home on Minocqua Place.

[18] On March 18, an officer located a white, four-door Hyundai parked across the street from the address Jackson had provided as her address. The paper plate was P153068. The officer followed a man fitting Wynn's description as he left that address and traveled to an address on 38th Street. The officer conducted surveillance and saw that person leave in a black SUV. The officer followed the person and positively identified him as Wynn when the cars were beside each other at a stop light. When he was apprehended, officers noted Wynn had gold teeth.

[19] Detective Jones also requested a search warrant for Thomas’ Facebook and Instagram records. Those records indicated that he was Facebook friends with Fat Cat Nichols. Thomas’ Facebook records also reflected a “thread,” which is messages and/or photos, or other activity between two or more people. There was a thread between Thomas and Bryant on March 7, 2022.

[20] According to cell phone records, Thomas’ cell phone number contacted the number 317-702-5102 at 12:31 p.m., 1:53 p.m., 3:22 p.m., 3:23 p.m., and 3:40 p.m. on March 6, 2022. Then, six text messages were exchanged between those two numbers. A call was made from Thomas’ number to number 317-702-5102 at around 4:24 p.m., followed by several text and voice messages.

[21] And Thomas’ number made two outgoing voice calls to 463-245-8009 between 12:30 p.m. and 12:40 p.m. on March 6. Thomas made an outgoing call to 463-245-8009 at 3:51 p.m. on March 6 and again at 3:54 p.m. The search warrant for the number 543-245-8009 revealed that it was a prepaid phone.

[22] Detective Jones was present when Wynn's buccal swab was collected, and she heard his voice. She reviewed a jail call from earlier in the year where a female inmate called the number 317-702-5102. The detective recognized Wynn's voice as the male voice who answered that phone number. Tr. Vol. 9, p. 197.

[23] Szamlewski testified that the third man involved arrived from the opposite direction driving alone in a dirty, white or cream colored four-door sedan. She described the man who arrived as brown-skinned, who wore jeans, a hat and, sunglasses, had “golds in his mouth,” and his hair was styled in “twists or dreads.” Tr. Vol. 3, p. 218-19. She also testified that he was wearing classic Jordan tennis shoes that were blue and black. She testified that after Pollard was shot, the third man was at the passenger door pointing a gun at her as she tried to open it. He pulled her from her vehicle while pointing the gun at her stomach and threw her down in the street. After Thomas and Bryant left in her Blazer, the third man ran to his car and left.

[24] Around three weeks after Pollard's murder, Bryant sold the handgun used to murder Pollard to Devin Matthews. The fired bullet and fired cartridge casings recovered from Ingram Street were all fired from the gun Bryant sold to Matthews. The fired cartridge casings were recovered from the backyard of Thomas’ residence.

[25] The State charged Wynn, Thomas, and Bryant with felony murder, Level 2 felony robbery resulting in serious bodily injury, and Level 3 felony armed robbery, and they were tried together. At the conclusion of the trial, the jury found Wynn guilty of all counts. The court vacated the conviction for Level 2 felony robbery and sentenced Wynn to concurrent sentences of forty-nine years for murder and twelve years for armed robbery. This appeal ensued.

Discussion and Decision

I. Jury Admonishments

[26] Wynn acknowledges that the trial court gave a pattern preliminary instruction with admonishments similar to those required by Indiana Code section 35-37-2- 4(a)(1981)⁶ , but he argues that the court did not give those advisements on several occasions during the trial. And Wynn claims that “[d]uring deliberations, the ‘jury advised the court staff that they were at an impasse as to one of the counts and had reached a verdict as to two of the counts.’ ” Appellant's Br. p. 21 (quoting Tr. Vol. 10, p. 215). He argues that reversal of his conviction is warranted on this record.

[27] To address the issue, we first must establish our standard of review for the claim. The State contends our standard of review is at most the standard of review for fundamental error because Wynn has failed to preserve his claim by “wholly fail[ing] to object to or otherwise challenge the absence of an admonishment or the sufficiency of an admonishment given[.]” Appellee's Br. p. 25. Wynn argues that his counsel did object when he inquired, “has the Court been admonishing [the jury] about every separation about the case?” Reply Br. p. 7; Tr. Vol. 9, p. 248. Thus, he argues in favor of an abuse of discretion standard of review.⁷ See Reply Br. p. 7.

[28] For context, as counsel and the court finished discussing scheduling for the day at the end of day six of the trial, Wynn's counsel asked the following question: “I may have missed it, but the thought randomly popped into my head over the weekend; has the Court been admonishing them about every separation about the case?” Tr. Vol. 9, p. 248. The court responded: “No, I tell them from time to time what to do.” Id. After Wynn's counsel responded, “Okay[,]” the court continued: “I say from time to time, it's every time we separate.” Id. Wynn's counsel responded: “I think it's just been a while since I've heard it maybe, so – ” Id. The court replied: “I can tell them again, but I do that on purpose so if I say time to time it'll be a lot to separate for lunch times and overnights.” Id. Wynn's counsel again replied, “Okay.” Id.

[29] First, there was no objection. Counsel and the trial court discussed counsel's and the court's recollection of the procedure thus far. After the court answered, Wynn's counsel replied, “Okay.” Id. Thus, the fundamental error standard of review is appropriate here. This exception is “extremely narrow and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (internal quotation marks removed). We afford relief under this standard “only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Hale v. State, 54 N.E.3d 355, 359 n.2 (Ind. 2016) (internal quotation marks removed).

[30] Failure to provide the statutorily required admonishments, however, does not lead to automatic reversal. Cardosi v. State, 128 N.E.3d 1277, 1284-85 (Ind. 2019). A defendant challenging the court's failure to admonish the jury must show he was “ ‘harmed by failure of the court to instruct or admonish the jury as to conduct during recess.’ ” Id. at 1285 (quoting Brown v. State, 201 N.E.2d 281, 283 (Ind. 1964)); see also Merry v. State, 335 N.E.2d 249, 259 (Ind. Ct. App. 1975) (“[I]t is incumbent on the defendant to show prejudice by the failure to admonish.”).

[31] Looking at the record, we conclude that there is no fundamental error. During preliminary instructions, the court gave Indiana Pattern Jury Instruction 1.0100 (2024), Duty of Jurors. After swearing in the jury, the trial court informed the jury that there would be times when they would separate or take breaks and they should not speak to anyone about the case. The court instructed the jury not to reach any conclusion about the case until it was submitted to them for final deliberation.

[32] Wynn points to the following: (1) that at the end of the first day of trial, the trial court advised the jury to “[p]lease keep that longer admonishment I gave in mind.” Tr. Vol. 4, pp. 15-16; (2) no admonishment was given at the lunch break on the second day; (3) no admonishment was given at the end of trial on the second day; (4) no admonishment was given for the lunch break on the fourth day of trial; (5) no admonishment was given for the lunch break on the fifth day of trial; (6) no admonishment was given at the end of the fifth day of trial, for the weekend recess; (7) Wynn's counsel asked about admonishments at the end of the sixth day of trial and an admonishment was given; and (8) no admonishment was given before the lunch break on the seventh day of trial. In sum, he argues that no admonishments were given before lunch breaks on four occasions, no end-of-day admonishments were given on two occasions, and he notes an abbreviated admonishment was given on one occasion.

[33] Although the trial court did not admonish the jurors of their duties at every recess or break in the trial, we find no fundamental error here because Wynn has not directed us to any harm that resulted from this, e.g., evidence of jurors conducting independent research, consulting with witnesses, and so forth.

[34] In Cardosi, the Supreme Court noted that the trial court did not strictly adhere to the statutory requirement to admonish jurors during all breaks in the trial. 128 N.E.3d at 1285. However, the Court found no harm or potential for harm from the trial court's failure to admonish the jurors “before six meals and at the end of two days during Cardosi's eight-day trial.” Id. The Court rejected Cardosi's argument that the harm to his ability to have a fair trial was demonstrated by his conviction “of the most serious felony available in Indiana, Murder.” Id. (internal quotation marks omitted). The Court observed that “ ‘harm is not shown by the fact that a defendant was ultimately convicted.’ ” Id. (quoting Pope v. State, 737 N.E.2d 374, 380 (Ind. 2000)).

[35] Similarly, we reject Wynn's argument that “[d]uring deliberations, the ‘jury advised the court staff that they were at an impasse as to one of the counts and had reached a verdict as to two of the counts[,]’ ” Appellant's Br. p. 21 (quoting Tr. Vol. 10, p. 215), establishes harm from the absence of admonishments such that a fair trial was impossible. We find no fundamental error here.

II. The Hearsay Rule and the Admission of Text Messages

[36] Wynn challenges the trial court's ruling admitting State's Exhibit 504, a text message from Thomas to Bryant, into evidence. The standard of review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pretrial motion to suppress or by objection at trial. Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005). That is, the trial court has broad discretion to rule on the admissibility of evidence. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). Those rulings are reviewed for an abuse of discretion and ordinarily reversed when admission is clearly against the logic and effect of the facts and circumstances. Id.

[37] Wynn argued at trial that the text message exchange between Thomas and Bryant resulting in the text, “Ik. That's why fat cat comin[,]” Tr. Vol. 9, p. 237, was inadmissible because it “raise[d] a constitutional confrontation issue.”⁸ Id. at 76. The deputy prosecutor responded that “we have to meet a burden of a preponderance of the evidence to show that there is a conspiracy.” Id. at 77. And the deputy prosecutor contended that the burden had been met. The trial court found that the text message about “fat cat” was admissible under Indiana Evidence Rule 801(d)(2)(E), because “these are coconspirator statements that are not testimonial[.]” Id. at 157. Wynn contends that the court's ruling is erroneous because the State failed to establish that the statement was made during the conspiracy. More specifically, he argues that there is no evidence showing that Wynn was part of the plan to rob Pollard before the statement implicating him was made.

[38] “Hearsay” is a statement that is not made by the declarant while testifying at the trial or hearing which is offered in evidence to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). And a “statement” is “a person's oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion.” Ind. Evidence Rule 801(a). “If the challenged statement does not assert a fact susceptible of being true or false, ‘it cannot be hearsay.’ ” Jackson v. State, 222 N.E.3d 321, 331 (Ind. Ct. App. 2023) (quoting Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994)), trans. denied. “Further, if the statement is ‘offered to prove the fact of the utterance and not offered to prove the truth of the facts asserted, then there is no hearsay problem ․ It is not hearsay at all.’ ” Id. (quoting Indianapolis Newspapers, Inc. v. Fields, 259 N.E.2d 651, 674 (Ind. 1970)).

[39] Wynn was charged with felony murder under accomplice liability. And Wynn's counsel strenuously contested the State's evidence that he was the third person present at the scene when Pollard was murdered. The State offered evidence of text messaging between Thomas and Bryant to establish that the identity of the person known as “fat cat” who Thomas and Bryant had summoned to the scene was Wynn. Consequently, the statement was offered for the truth of the matter asserted—that Wynn was the person Thomas and Bryant summoned to help them.

[40] A statement offered against an opposing party that was made by the party's co-conspirator during and in furtherance of the conspiracy is not hearsay and is admissible in evidence. Evid. Rule 801(d)(2)(E). “In order for a statement of a co-conspirator to fall under the hearsay exception, there must first be independent proof of the existence of the conspiracy.” Houser v. State, 661 N.E.2d 1213, 1219 (Ind. Ct. App. 1996), trans. denied. “Generally, only those acts and declarations which transpired or were made between the beginning and ending of the conspiracy and in furtherance of its objectives may be shown against the asserted co-conspirator who did not make the declaration.” Id. “A statement is in furtherance of a conspiracy when it is ‘designed to promote or facilitate achievement of the goals of the ongoing conspiracy.’ ” Jackson, 222 N.E.3d at 333 (quoting Leslie v. State, 670 N.E.2d 898, 901 (Ind. Ct. App. 1996), trans denied. “[T]he State must establish a conspiracy exists without using the statement at issue.” Id. “If the trial court determines by a preponderance of the evidence that the declarant and the defendant were involved in a conspiracy and the statement was made during and in furtherance of that conspiracy, it is admissible” non hearsay. Id.

[41] One of the federal cases cited by the State at trial in support of the text's admission held that “the declarations and acts of the various members [of the conspiracy], even though made or done prior to the adherence of some to the conspiracy become admissible against all as declarations or acts of co-conspirators in aid of the conspiracy.” U.S. v. U.S. Gypsum Co., 333 U.S. 364, 393 (1948). And in Haak v. State, 695 N.E.2d 944, 946 (Ind. 1998), a case decided under state law, the defendant claimed that the statements of a co-conspirator during the course and in furtherance of the conspiracy were not admissible against him because the statements were made before he joined the conspiracy. Finding no Indiana case on point under Rule 801(d)(2)(E), our Supreme Court concluded that the statements were admissible, citing secondary authority and federal cases applying the analogous federal rule. Id. at 947.⁹

[42] The State, by a preponderance of the evidence, established that after Thomas and Bryant asked Pollard to follow them to the third location on Ingram Street, Thomas and Bryant exchanged messages about the robbery. They also shared the concern that Szamlewski might be armed. During that text exchange, Thomas called Wynn three times within two minutes, but the calls were unanswered. Thomas told Bryant he was thinking about the situation when he placed another call to Wynn which was answered and lasted around sixteen seconds. While at the Ingram Street location, Thomas and Bryant stalled Pollard until Wynn arrived. When Wynn arrived, he monitored Szamlewski's movements while the other two interacted with Pollard. Once Pollard was shot, Wynn pointed the gun at Szamlewski and pulled her out of the Blazer. Less than an hour later, Bryant texted that he had just committed a robbery. This evidence met the State's burden of establishing the conspiracy such that the text messages implicating Wynn were admissible. We find no abuse of discretion in the trial court's admission of the text messages in question.

III. Sufficiency of the Evidence

[43] Wynn argues that the State failed to prove that he was the third assailant. Sufficiency of evidence claims “warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility.” Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020). We consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. Id. “We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt.” Id. We affirm the conviction “unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.” Sutton v. State, 167 N.E.3d 800, 801 (Ind. Ct. App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)). “ ‘A reasonable inference of guilt must be more than a mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla.’ ” Patel v. State, 60 N.E.3d 1041, 1049 (Ind. Ct. App. 2016) (quoting Willis v. State, 27 N.E.3d 1065, 1068 (Ind. 2015)).

[44] Wynn challenges the State's evidence of his identity as the third assailant. And in doing so, he focuses on individual parts of the evidence. For example, he argues that: (1) Szamlewski did not identify him as the third assailant in a photo array; (2) Detective Jones’ identification of Wynn's voice on the jail call was unreliable; (3) the man depicted in the Ring video with Thomas after the murder was not him; (4) the State did not connect the Hyundai driven by Wynn after the murder to the crime; (5) Wynn's Facebook friendship with Thomas did not connect him to the crime; (6) the blue shoes do not connect him to the crime; and (7) no forensic evidence connects him to the crime. Appellant's Br. pp. 14-19. He argues that without any of those connections, his conviction is based on speculation and, as such, must be reversed.

[45] “Under the theory of accomplice liability, ‘an accomplice is criminally responsible for all acts committed by a confederate which are a probable and natural consequence of their concerted action.’ ” Porter v. State, 715 N.E.2d 868, 870 (Ind. 1999) (quoting McGee v. State, 699 N.E.2d 264, 265 (Ind. 1998)). “It is not necessary that the evidence show that the accomplice personally participated in the commission of each element of the offenses.” Porter, 715 N.E.2d at 870. “Rather, evidence that the accomplice acted in concert with those who physically committed the elements of the crime is sufficient to support a conviction.” Id. “While mere presence at the scene or acquiescence in the crime is not sufficient to establish accomplice liability, presence at the scene may be considered along with ‘the defendant's relation to or companionship with the one engaged in the crime and the defendant's actions before, during and after the crime.’ ” Id. (quoting Hodge v. State, 688 N.E.2d 1246, 1248 (Ind. 1997), overruled in part on other grounds by Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010)).

[46] “It is well settled that a murder conviction may be based entirely on circumstantial evidence.” Kriner v. State, 699 N.E.2d 659, 663 (Ind. 1998). Indeed, “evidence in the aggregate may point to guilt where individual elements of the State's case might not.” Id. at 664. “[W]hen presented with a sufficiency challenge we look at the whole picture without taking a divide-and-conquer approach to individual pieces of evidence.” Young v. State, 198 N.E.3d 1172, 1176-77 (Ind. 2022) (internal quotations omitted).

[47] Looking at the whole picture, the evidence reveals that Thomas and Bryant exchanged text messages about the robbery while driving to Ingram Street. They were concerned about Szamlewski's presence and believed she might have a firearm. During those text exchanges, Thomas called a phone connected to Wynn three times. Thomas told Bryant he was thinking about the situation with Szamlewski when he placed another call to the phone number connected to Wynn. This time the call was answered and lasted for sixteen seconds. Immediately after the call, Thomas texted Bryant, “Ik. Thts why fat cat cumin.” Tr. Vol. 9, p. 237. Wynn referred to himself as fatcat in text messages and on Facebook. Thomas and Wynn were Facebook friends. And Wynn was the only Fat Cat in the Indianapolis area. The jury could reasonably infer that Thomas was talking about Wynn when he sent the text “fat cat cumin.” Id.

[48] At the Ingram Street location, Thomas and Bryant stalled Pollard until Wynn arrived. The cell phone connected to Wynn was using a cell site that included Ingram Street at the time of Pollard's murder. Wynn's clothing and physical characteristics largely matched Szamlewski's description of the third assailant, and he was seen driving a vehicle matching her description of the vehicle driven by the third assailant. Wynn was a Black male, with chin-length twists or dreads, and gold teeth in his mouth. Hours after the murder, he was wearing black and blue shoes that were similar to those Szamlewski described the third assailant wearing. Black and blue shoes were found in Wynn's closet. He had access to a white Hyundai similar to the vehicle driven by the third assailant, and was driving it just hours after Pollard's murder. From this evidence, the jury could reasonably conclude beyond a reasonable doubt that Wynn was the third assailant.

[49] Additionally, after Wynn arrived at Ingram Street, he stood outside Szamlewski's door and watched her. After Pollard was shot, Wynn pointed a gun at Szamlewski and pulled her out of the Blazer. Less than an hour later, Bryant sent a text stating that he had just committed a robbery. And less than two hours after Pollard's murder, Thomas and Wynn returned to Thomas’ house where Thomas changed his clothes. Thomas and Wynn left with Wynn driving a white, four-door sedan. At 6:30 p.m. Thomas texted Horne that he was done and a short time later asked Horne to pick him up at 3747 Drexel, which was next door to Wynn's residence. The last contact on the phone Wynn used to communicate with Thomas was the day Thomas was arrested. After his arrest, Thomas repeatedly asked Robinson to contact Fat Cat. Because Wynn used the nickname Fat Cat and Wynn and Thomas knew each other, the jury could reasonably infer that Thomas was talking about Wynn. And Wynn was found in possession of a handgun when he was arrested. Thus, the jury could reasonably infer that Wynn had access to weapons, and that he actively participated in the robbery and murder of Pollard.

[50] Wynn's attacks on specific pieces of evidence are requests for us to reweigh the evidence, a task we may not undertake. Powell, 151 N.E.3d at 262. We conclude that the State sufficiently established Wynn's identity as the third assailant, and thus, established his participation as an accomplice in Pollard's robbery and murder.

Conclusion

[51] In light of the foregoing, we conclude that: (1) the trial court did not commit fundamental error by failing to admonish the jury on every occasion they took a break during the trial; (2) the text messages were admissible as statements by co-conspirators during the conspiracy made in furtherance of the conspiracy; and (3) sufficient evidence supports Wynn's conviction. Therefore, we affirm.

[52] Affirmed.

FOOTNOTES

1.   “Ik” in text slang or shorthand means “I know.” Id. at 234-35.

2.   “Honkey” is a pejorative, slang term defined as “an insulting or contemptuous term for a white person.” Honkey, Merriam-Webster Online-Dictionary. https://www.merriam-webster.com/dictionary/honkey [https://perma.cc/57AY-WYUE] (last visited September 8, 2025). Szamlewski is a white or Caucasian woman.

3.   “Cheese” means money. Id. at 238.

4.   A “lick” means robbery. Id. at 239.

5.   “Ju Wop” is a nickname and Meta identifier for Thomas. Tr. Vol. 7, p. 159-60.

6.   Indiana Code section 35-37-2-4(a) provides as follows: “The court shall admonish the jurors in the preliminary instruction, before separating for meals, and at the end of the day, that it is their duty not to converse among themselves or permit others to converse with them on any subject connected with the trial, or to form or express any opinion about the case until the cause is finally submitted to them.”

7.   Wynn makes this argument based on the State's suggestion that an abuse of discretion would have applied had Wynn objected, citing the standard of review for the trial court's decision to give or refuse instructions. See Appellee's Br. p. 24.

8.   In Hape, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans. denied, we concluded that the text messages at issue were not made with the intention that they be used in future legal proceedings. As such, we held that the “Confrontation Clause does not act to bar these text messages because they are not testimonial.” Id. Thus, the argument about a “constitutional confrontation issue” would not have prevailed here. Tr. Vol. 9, p. 76; id.

9.   The Haak decision included the following footnote:“Admissibility of a co-conspirator statement is not dependent upon the timing of the party's joining the conspiracy; statements made before the defendant joined the conspiracy may be admitted.” 13 ROBERT LOWWELL MILLER, JR., INDIANA PRACTICE § 801.423, at 566-56 (2d ed. 1995)(footnote omitted). See id. for federal cases to that effect.695 N.E.2d at 947 n.1.

Baker, Senior Judge.

Judges Vaidik and Mathias concur. Vaidik, J., and Mathias, J., concur.