COA upholds gang-related sentence enhancement

An Evansville man whose sentence was enhanced for gang-related activity could not convince the Indiana Court of Appeals that he was prosecuted twice for the same offense in violation of the Indiana Constitution.

While executing a search warrant in Evansville, police found a handgun, scale, box of baggies, box of latex gloves and 22 pills in a bedroom closet at a home where Michael Wisdom was residing. Police also found Wisdom’s identification card and numerous indicators that he was involved with Wagg Block 300, a gang in the Evansville area.

Wisdom was charged with Level 3 felony dealing in a schedule II controlled substance as well as Level 6 felony criminal-organization activity. During a bifurcated trial, a jury found Wisdom not guilty on either count but did find him guilty of the lesser-included offense of Level 4 possession of a schedule II narcotic drug. At trial, prosecutors had introduced into evidence Instagram and Facebook posts that allegedly showed his involvement with the gang.

The jury then found Wisdom guilty on a gang-related sentencing enhancement, which required the court to sentence him to an “additional fixed term of imprisonment equal to the sentence imposed for the underlying felony.” It thus sentenced him to an aggregate of 16 years – eight years for Count I plus eight years for the enhancement.

On appeal, Wisdom challenged the admission of the Instagram and Facebook posts, arguing they were not properly authenticated under Evidence Rule 901(a).  However, the Indiana Court of Appeals noted that unlike Wilson v. State, 30 N.E.3d 1264 (Ind. Ct. App. 2015), and Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the social media posts at issue in the instant case were not being used to show Wisdom was the source of some incriminating communication.

“Rather, his mere presence in the Facebook photos and association with the Instagram account were used by the State to show Wisdom was affiliated with other members of Wagg Block 300,” Judge Nancy Vaidik wrote for the appellate court.

To support that holding, the panel noted that a detective testified that the Instagram account was registered under Wisdom’s full name; Wisdom was in a “vast majority” of the photos, which appeared to be selfies; the account’s username was a nickname associated with Wagg Block 300; a video on the account featured Wisdom saying he was making money on Wagg Block; and some pictures had captions that appeared to be associated with the gang, such as “gang 300[.]”

“This is sufficient to authenticate the Facebook photos and Instagram account as being what the State purported them to be,” Vaidik wrote. “The trial court did not abuse its discretion by admitting the contested exhibits.”

In a footnote, the appellate court acknowledged that while electronic photos are susceptible to manipulation, “there was indicia of reliability and no indication of fabrication or manipulation” of the photos at issue.

Wisdom also raised a double jeopardy challenge, arguing the state should not have been permitted to move forward with the gang enhancement phase of the trial because he was acquitted on the criminal-organization count in the first phase.

In rejecting that argument, the appellate court noted that “the question under the actual-evidence test is not whether the same evidence was presented but whether the trier of fact considered and relied upon the same evidence to make the two decisions.” Applying the modified Richardson actual-evidence test as laid out in Garrett v. State, 992 N.E.2d 710 (Ind. 2013), the appellate court disagreed with Wisdom’s assertion that there could be “no question” the jury based both decisions on the same evidence because no new gang evidence was presented during the second phase of his trial.

“On Count I, the jury found Wisdom guilty of the lesser-included offense of possession but not dealing (possession with intent to deliver) and also found him guilty on the enhancement. On Count II, the jury found Wisdom not guilty. Taken together, the verdicts on Count I and its enhancement — guilty of possession but not dealing and guilty of committing possession while a ‘member of a gang’ and ‘at the direction of or in affiliation with’ a gang — indicate the jury found Wisdom not guilty on Count II because of the dealing element, not because of the gang element,” Vaidik wrote.

Additionally, the COA found there to be no reasonable possibility that the jury relied on the same evidentiary facts to acquit Wisdom of criminal-organization activity and to find him guilty of the gang enhancement in Michael Wisdom v. State of Indiana, 20A-CR-931.

“We therefore conclude Wisdom was not twice prosecuted for the same offense in violation of the Indiana Constitution,” Vaidik wrote.