May, J.
Jaqueline B. Walters appeals her conviction for Level 3 felony aiding, inducing, or causing armed robbery. She presents two issues for our review that we restate as:
1. Whether the trial court abused its discretion in admitting phone records from Verizon; and
2. Whether the State presented sufficient evidence Walters aided, induced, or caused an armed robbery.
We reverse.
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Detective Anderson sought and received a search warrant for the Verizon records for the phone. Because he had requested Verizon preserve the account, Detective Anderson also received the text message records for the time frame surrounding the robbery date. Therein, one number was repeatedly texted. The text of the messages between 6065 Phone and that number discussed a plan to rob the IGA. Officer Jackson determined the phone number belonged to John Nocito. Nocito was the long-term boyfriend of Slaten’s sister. Detective Anderson obtained a DNA swab from Nocito, and his DNA matched the DNA found on the cap dropped by the Robber at the store.
The State charged Walters with aiding, inducing, or causing an armed robbery. A jury trial held in July 2016 resulted in a hung jury. A second jury trial was scheduled for March 6-8, 2018. Prior to the second jury trial, the State filed a motion for an evidentiary hearing as they planned on advancing a theory of conspiracy between Walters, Slaten, and Nocito. The State wished the text messages to be deemed statements of coconspirators so the statements would not be hearsay.
On July 13, 2017, at the evidentiary hearing, the State requested the trial court take judicial notice of the evidence presented during Slaten and Nocito’s trials i.e., the cell phone records from Verizon. Walters objected because she had not been present during those trials to “make any objections of her own[.]” She conceded the trial court could “take judicial notice that that trial occurred and certain evidence was presented” but not as to whether it was admissible against her. … The trial court took judicial notice of the Verizon cell phone records containing the text messages.
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The trial court found “the State ha[d] met its threshold to show the existence of a conspiracy[,]” and the phone records were admissible as non-hearsay under that theory. … Walters objected to the lack of foundation and trustworthiness of those records. …
When the State presented the first set of text messages as Exhibit 45, it also presented an affidavit of certification from Verizon. …
Walters objected to the introduction of the phone records “on hearsay grounds.” She argued they were not self-authenticating and did not “comply with Indiana Rule 803(d).” …
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Detective Anderson also obtained the phone records for Nocito’s phone. Therein, Verizon provided the certification with the records. That certification was different from the certification of the 6065 Phone records as it included the phone number the records purported to represent.
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… Some statements that otherwise would be hearsay are defined as non-hearsay, such as statements made by co-conspirators, when offered into evidence by an opposing party. Evid. R. 801(d)(2)(E). To be admissible under this rule, the State must establish a conspiracy exists without using the statements at issue. M.T.V. v. State, 66 N.E.3d 960, 964 (Ind. Ct. App. 2016), trans. denied. However, before reaching the subject of whether the statements were made pursuant to a conspiracy, because the “statements” consist of business records, those records must be authenticated.
Records found to be business records under Indiana Evidence Rule 803(6), such as these, may be self-authenticating and an exception to the rule against hearsay, if they are accompanied by “a certification under oath of the custodian[.]” Ind. Evidence Rule 902(11). However, for the self-authentication to be valid, the records must be shown to be trustworthy. …
Here, the certificate offered to authenticate the phone records for the 6065 Phone was issued approximately eighteen months after the records were obtained, does not contain the phone number for which the search warrant requested records, does not contain the number of pages it purports to authenticate, and does not contain the dates the records encompass. The State only had the testimony of Detective Anderson, not a Verizon employee, to explain how Verizon explained to him their handling of search warrants and subpoenas and why the certificate was not sent with the records originally.
… When Detective Anderson testified about the phone records retrieved from Nocito’s phone, Walters noted the certification affidavit listed the phone number for which it purported to authenticate but the affidavit for 6065 Phone did not contain that information.
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Even if an affidavit purports to authenticate a business document, that evidence still may be excluded if “the circumstances of the record’s preparation indicate a lack of trustworthiness.” Speybroeck, 875 N.E.2d at 819. …
We cannot say the State provided proper authentication of these records to breach the threshold question of admissibility. See Speybroeck, 876 N.E.2d at 820 … Without authentication, we do not reach the question of whether the statements made therein were admissible as coconspirator statements. The trial court abused its discretion when it admitted the evidence of the phone records for 6065 Phone without proper authentication. See id.
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… The State relied almost solely on the evidence from the unauthenticated phone records to support its theory of a conspiracy between Walters, Slaten, and Nocito. There is not sufficient evidence, independent of the phone records, to support the State’s case against Walters. Therefore, we reverse her conviction.
… When a conviction is reversed due to an error in the admission of evidence, double jeopardy concerns usually do not apply. Thompson v. State, 690 N.E.2d 224, 237 (Ind. 1997). While “double jeopardy forbids a retrial . . . if the reviewing court concludes that the evidence is legally insufficient to support the conviction[,]” id., if the State were able to authenticate the phone records for 6065 Phone, the jury could have found Walters had conspired with Nocito. Therefore, the Double Jeopardy Clause does not preclude a retrial.
The trial court abused its discretion when it admitted the unauthenticated phone records for 6065 Phone in the form of Exhibit 45 and 62. Without those exhibits, the State did not present sufficient evidence to prove Walters aided, caused, or induced Nocito to rob the grocery store with a gun. Accordingly, we reverse. However, as the jury could have found Walters guilty if those records were properly presented, double jeopardy does not attach and the State is allowed to retry Walters.
Reversed.
Baker, J., and Robb, J., concur.