MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             May 14 2019, 9:23 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Marietto V. Massillamany                                Curtis T. Hill, Jr.
Thomas W. Blessing                                      Attorney General of Indiana
Latoya T. Highsaw
Fishers, Indiana                                        Ian McLean
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Mark Adrian Hughes,                                     May 14, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1007
        v.                                              Appeal from the Hamilton
                                                        Superior Court
State of Indiana,                                       The Honorable Jonathan M.
Appellee-Plaintiff                                      Brown, Judge
                                                        Trial Court Cause No.
                                                        29D02-1510-F5-9122



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019                   Page 1 of 20
                                                    Case Summary1


[1]   In 2015, Mark Adrian Hughes was charged with two counts of burglary as

      Level 5 felonies and two counts of theft as Level 6 felonies stemming from the

      2014 breaking and entering of two newly-constructed homes in Carmel and the

      theft of stainless-steel appliances installed therein. The matter proceeded to a

      jury trial. During trial, and over Hughes’s objection, the trial court permitted

      the State to introduce evidence that in 2006 Hughes had been convicted of

      burglary and theft of stainless-steel appliances from newly-constructed homes in

      the Carmel area to show identity, common scheme or plan, or motive. The jury

      found Hughes guilty as charged, 2 and the trial court subsequently determined

      him to be a habitual offender. The trial court then sentenced Hughes to an

      aggregate term of ten years, with two years suspended. On appeal, Hughes

      presents four issues for our review, one of which we find dispositive: Did the

      trial court abuse its discretion in admitting evidence of Hughes’ prior

      convictions? Because we find in Hughes’s favor on this issue and remand for a

      new trial, we address Hughes’s challenge to Final Instruction 15.


[2]   We reverse and remand.




      1
        We held oral argument at Ivy Tech Community College - Lafayette on April 11, 2019, as part of our
      Appeals on Wheels program. We thank the staff for our warm reception and the students for their
      professionalism and attentiveness throughout the argument. We also commend counsel on the quality of
      their written and oral advocacy.
      2
          The trial court merged the theft convictions with the burglary convictions.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019                Page 2 of 20
                                       Facts & Procedural History


[3]   In July 2014, Pulte Homes was finishing construction on a new spec home

      located on Repass Drive in Carmel. On July 10, a resource planning manager

      for Pulte went to check on the Repass Drive house and discovered that the

      house had been broken into and that the stainless-steel appliances, including a

      cooktop, microwave, dishwasher, and refrigerator, had been removed. He

      reported the burglary to the Carmel Police Department (CPD).


[4]   CPD officers secured the scene. During their investigation, they learned that a

      wooden barrier placed across the driveway had been removed, the front door

      had been kicked in or pried open, the interior door between the house and the

      garage had been taken off its hinges, and the garage door had been released

      from its tracks. The officers also noted muddy shoeprints on the hardwood

      floors throughout the first floor. John Elliott, a civilian evidence technician

      with CPD, collected electrostatic lifts and photographs of the shoeprints. Based

      on the visible tread design and Jumpman logo, Elliott determined the

      shoeprints were made by a pair of size 10 ½ or 11 Nike Air Jordan athletic

      shoes.


[5]   On July 21, 2014, CPD officers responded to another reported burglary on

      President Street in Carmel. A construction manager for Fischer Homes went to

      check on the home at this address and discovered that the stainless-steel

      appliances, including the refrigerator, dishwasher, cook top, double oven,

      washer, and dryer, had been removed. At this home, there was no forced entry


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019   Page 3 of 20
      because the construction manager left finished homes unlocked. However, as

      with the Repass Drive home, there were muddy footprints throughout and the

      door between the house and the garage had been removed from its hinges.

      Elliott also responded to this burglary scene. He noted that there were fewer

      shoeprints and documented them with electrostatic lifts and photographs. The

      shoeprints were similar to those found in the Repass Drive home in that they

      were made by a size 10 ½ or 11 shoe that had a Jumpman logo molded into the

      sole.


[6]   Elliott, who had over thirty years of experience with CPD, noticed what he

      considered to be similarities between these recent burglaries and two other

      burglaries he had investigated in 2006 that were within the same area of

      Carmel. 3 One of the prior burglaries was committed at a newly-constructed

      home on Montcalm Street in Carmel on January 10, 2006. During that

      burglary, forced entry into the home was made through an exterior garage door

      and the stainless-steel wine cooler and oven were removed. The stainless-steel

      refrigerator had been moved from the kitchen but was left in the passageway

      between the kitchen and the garage after it became stuck. Also, the stainless-

      steel oven had been pried from the cabinetry, but was left behind.


[7]   The second of the prior burglaries occurred on December 15, 2006, at a newly-

      constructed home on Salamone Way in Carmel. Forced entry was made




      3
          All four burglaries occurred within a three-to-five-mile radius of Carmel.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019     Page 4 of 20
      through a rear door off of the deck. Inside the house, the kitchen island had

      been broken loose from the floor and several appliances had been removed,

      except for the stainless-steel oven, which was found in the garage. Footprints

      on the hardwood floor led to the garage, where the door between the house and

      the garage had been removed from its hinges. A fingerprint was recovered

      during the investigation of this burglary and identified as belonging to Hughes.

      Hughes was charged with and ultimately pled guilty to burglarizing the

      Montcalm Street and Salamone Way houses.


[8]   Having identified Hughes as a suspect in the Repass Drive and President Street

      burglaries, police attempted to locate him and learned that he was incarcerated

      in the Hendricks County Jail. In October 2014, police obtained a warrant for

      Hughes’s personal property that was being held by the jail and obtained the

      shoes Hughes was wearing when he was arrested on July 26, 2014. The shoes

      were size 11 Nike Air Jordan athletic shoes with a Jumpman logo molded into

      the soles. Hughes’s shoes were sent to the Indiana State Police (ISP) laboratory

      for examination.


[9]   Sean Matusko, a forensic scientist with the ISP laboratory’s latent-print unit,

      had undergone in-house training in shoeprint identification and had taken a

      class and attended eight conferences on the subject. Matusko explained in

      detail the four-step process he used in positively identifying seven shoeprints left

      at the Repass Drive house and one shoeprint left at the President Street house

      as being made by Hughes’s shoes.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019   Page 5 of 20
[10]   On October 13, 2015, the State charged Hughes with two counts of burglary as

       Level 5 felonies and two counts of theft as Level 6 felonies. The State also

       alleged Hughes was a habitual offender. On February 12, 2016, the State filed a

       notice of intent to introduce 404(b) evidence, generally alleging that Hughes

       had committed other similar burglaries. Hughes objected. The trial court held

       a hearing on the matter of 404(b) evidence, and on May 13, 2016, the court

       ruled that the State could introduce evidence of Hughes’s 2006 convictions to

       show identity and plan. 4


[11]   On February 7, 2018, Hughes filed a motion to exclude evidence that the

       shoeprints found at the scenes of the two burglaries matched his shoes. On

       February 14, 2018, Hughes filed a notice of discovery stating his intent to offer

       into evidence at trial a publication by The President’s Council of Advisors on

       Science and Technology (PCAST) that cast doubt on the scientific reliability of

       shoeprint analysis when offered in court to prove that a shoeprint was made by

       a particular shoe. The State filed a motion in limine to exclude the PCAST

       publication from evidence. The court held a hearing on these pending motions

       on March 2, 2018. At this hearing, Hughes argued that the PCAST publication

       was admissible and cross-examined Matusko regarding the contents thereof.

       The State argued that the PCAST publication was inadmissible because it was

       hearsay. The State also argued that because Matusko was a witness with



       4
         Thereafter, Hughes filed a motion to exclude the evidence of his prior convictions pursuant to Ind. Evid. R.
       403, which motion the trial court denied. The trial court granted Hughes’s request to certify the matter for
       interlocutory appeal. This court, however, declined to accept jurisdiction.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019                      Page 6 of 20
       specialized knowledge whose testimony was governed by Ind. Evidence Rule

       701, rather than an expert witness under Evid. R. 702, the PCAST publication

       could not be used to cross-examine him about the scientific reliability of the

       process he utilized.


[12]   At the conclusion of the hearing, the trial court determined that Matusko was a

       skilled witness and therefore ruled that the PCAST publication would not be

       admissible at trial and that Hughes would not be permitted to cross-examine

       Matusko regarding the contents of the publication. The trial court also denied

       Hughes’s motion to exclude the shoeprint evidence, in particular Matusko’s

       testimony that shoeprints found at both crime scenes were made by Hughes’s

       shoes.


[13]   A jury trial was held on March 14 and 15, 2018. During opening statements,

       the State told the jury that Elliott, who had responded to both crime scenes,

       “recognize[d] these burglaries as being very similar to ones committed in the

       past by Mark Hughes.” Transcript Vol. 3 at 85. Hughes objected. At the close

       of the State’s evidence, Hughes moved for a directed verdict, which the trial

       court denied. Over Hughes’s objection, the trial court provided the jury with

       Final Instruction 15, which states:


                Generally, a witness may not express an opinion. However, one
                who follows a profession or special line of work is permitted to
                express an opinion because of his knowledge, skill, experience,
                training, or education of the witness. The purpose of such
                testimony is to help you in arriving at a just verdict.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019   Page 7 of 20
               You should judge the testimony of an expert witness in the same
               manner as you do the testimony of any other witness. In
               deciding its weight, you may take into consideration the expert’s
               skill, experience, knowledge, veracity, familiarity with the facts
               of the case, and the general rules for deciding the credibility of
               witnesses.


       Transcript Vol. 5 at 135 (emphasis supplied).


[14]   The jury found Hughes guilty on all charges. Hughes waived his right to a jury

       with respect to the habitual offender phase. The trial court then found Hughes

       to be a habitual offender. The trial court entered convictions on only the

       burglary counts and sentenced Hughes to an aggregate sentence of ten years,

       with two years suspended to probation, to be served consecutively to the

       sentence imposed in an unrelated case. Hughes now appeals. Additional facts

       will be provided as necessary.


                                           Discussion & Decision


                                              1. 404(b) Evidence


[15]   In assessing the admissibility of evidence under Evid. R. 404(b), the trial court

       must: (1) determine whether the evidence is relevant to a matter at issue other

       than the defendant’s propensity to commit the charged act; and (2) balance the

       probative value of the evidence against its prejudicial effect pursuant to Indiana

       Evidence Rule 403. Ceaser v. State, 964 N.E.2d 911, 915 (Ind. Ct. App. 2012),

       trans. denied. We review evidentiary decisions for an abuse of discretion and

       will reverse only when the decision is clearly against the logic and effect of the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019   Page 8 of 20
       facts and circumstances before the trial court. Nicholson v. State, 963 N.E.2d

       1096, 1099 (Ind. 2012). “A claim of error in the exclusion or admission of

       evidence will not prevail on appeal unless the error affects the substantial rights

       of the moving party.” McCarthy v. State, 749 N.E.2d 528, 536 (Ind. 2001).


[16]   Our Supreme Court recognized long ago:


               The notion that the State may not punish a person for his
               character is one of the foundations of our system of
               jurisprudence. Evidence of misconduct other than that with
               which one is charged (“uncharged misconduct”) will naturally
               give rise to the inference that the defendant is of bad character.
               This, in turn, poses the danger that the jury will convict the
               defendant solely on this inference.


               Exceptions to this rule must be applied with caution. Evidence
               of uncharged misconduct is generally inadmissible if its sole
               relevance is to show that the defendant's general character is bad
               and that he therefore has a tendency to commit crimes.


       Penley v. State, 506 N.E.2d 806, 808 (Ind. 1987) (internal quotations and

       citations omitted).


[17]   As a general rule, evidence of prior crimes may not be used as evidence “to

       prove a person’s character in order to show that on a particular occasion the

       person acted in accordance with the character.” Evid. R. 404(b)(1). The well-

       established rationale behind this rule is that the jury is precluded from making

       the “forbidden inference” that the defendant had a criminal propensity and

       therefore engaged in the charged conduct. Hardin v. State, 611 N.E.2d 123, 129


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019   Page 9 of 20
       (Ind. 1993). Such evidence, however, may be admissible “for another purpose,

       such as proving motive, opportunity, intent, preparation, plan, knowledge,

       identity, absence of mistake, or lack of accident.” Evid. R. 404(b)(2). Here, the

       trial court admitted Hughes’s prior convictions as proof of identity and plan.


[18]   The identity exception was carved out primarily for crimes “so nearly identical

       that the modus operandi is virtually a ‘signature.’” Allen v. State, 720 N.E.2d

       707, 711 (Ind. 1999) (citing Thompson v. State, 690 N.E.2d 224, 234 (Ind. 1997)).

       In considering whether identity evidence constitutes a signature crime, the focus

       is on whether “the crimes, or means used to commit them, were so similar and

       unique that it is highly probable that the same person committed all of them.”

       Thompson, 690 N.E.2d at 234 (citing Lockhart v. State, 609 N.E.2d 1093, 1097

       (Ind. 1993)). “[T]he repeated commission of similar crimes is not enough to

       qualify for the exception to the general rule. The acts or methods employed

       must be so similar, unusual and distinctive as to earmark them as the acts of the

       accused.” Willis v. State, 374 N.E.2d 520, 522 (Ind. 1978).


[19]   In Allen, supra, this court identified circumstances between two crimes that were

       so strikingly similar as to qualify as a signature crime. In that case, the victim

       (Jackson) had been bound with duct tape around her arms, legs and from ear to

       ear, sexually assaulted, and strangled to death. Police recovered a note from

       the victim’s bedroom with the defendant’s pager number and the name “Play.”

       During the investigation into the victim’s murder, the defendant was arrested

       for raping another woman (Franklin), who said that the defendant introduced

       himself to her as “Play”, had given her his pager number, bound her hands with

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019   Page 10 of 20
       duct tape, threatened to bind her mouth and legs with duct tape, and raped her.

       Police believed that the two crimes were similar in that both victims were

       bound with duct tape, sexually assaulted, and both had defendant’s pager

       number and knew him as “Play.” The defendant was charged for the Franklin

       incident and found not guilty of robbery and criminal deviate conduct and the

       jury hung on the rape and confinement charges.


[20]   At the jury trial for the murder of Jackson, the State was permitted to introduce

       evidence of the rape of Franklin to prove defendant’s identity as the perpetrator

       of the murder and sexual assault of Jackson. Our Supreme Court considered

       the similarities in the crimes, noting that both victims were African-American

       teenage girls, both crimes occurred in the same neighborhood within two

       months of each other, one victim had her assailant’s beeper number and knew

       him as “Play” and a piece of paper found in the murder victim’s bedroom had

       the defendant’s beeper number and the name “Play” written on it, both victims

       were bound with duct tape, in both cases the duct tape was removed after the

       attack, and both incidents involved some sort of anal probing or penetration. In

       light of the striking similarities in the crimes, the Supreme Court held that the

       trial court did not abuse its discretion in admitting the evidence of the rape of

       Franklin under the identity exception of Evid. R. 404(b).


[21]   The Court further concluded that because such evidence was substantially

       probative as to the identity of the decedent’s attacker, such outweighed the




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019   Page 11 of 20
       danger of unfair prejudice. 5 Cf. Manuel v. State, 793 N.E.2d 1215 (Ind. Ct. App.

       2003) (holding that child victim’s testimony about prior uncharged molestations

       her father committed against her was not admissible to prove identity where

       victim’s testimony was extremely vague and only purpose was to establish

       defendant’s propensity to commit the crime); Berry v. State, 715 N.E.2d 864

       (Ind. 1999) (holding that similarities between two crimes—perpetrator of each

       crime was wearing a blue jacket and used a shotgun—were not sufficiently

       distinctive to make evidence of the second crime admissible under Evid. R.

       404(b)).


[22]   Hughes argues that, unlike in Allen, the circumstances giving rise to his prior

       convictions were not so strikingly similar to the current offenses as to establish a

       signature. Hughes asserts that eight years passed between commission of the

       offenses and that “the only apparent similarity” between the 2006 burglaries

       and the current offenses is that they both involve theft of stainless-steel

       appliances from newly-constructed homes in Carmel, circumstances which

       Hughes claims are not unique. Appellant’s Brief at 17. Hughes also points out

       the differences in the burglaries, including that in the prior burglaries an

       appliance was left at the scene while all were taken in the recent burglaries and

       that the manner of entry for each burglary was different. Hughes asserts that

       many burglaries and thefts will have rough parallels. He admits that his prior




       5
        In Caldwell v. State, 43 N.E.3d 258, 265 (Ind. Ct. App. 2015), trans. denied, this court referred to the Allen
       case as “illustrat[ing] just how similar two crimes must be in order to constitute a ‘virtual signature.’”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019                         Page 12 of 20
       burglaries are similar to the current offenses, but maintains that they are not so

       strikingly similar or unique as to constitute a signature for purposes of

       establishing identity.


[23]   In response, the State asserts that the time period between the burglaries is not

       essential to our analysis and that such detracts from the “significant

       commonalities” between the 2006 and 2014 burglaries that establish the modus

       operandi, including that the past and present burglaries involved the theft of

       stainless-steel appliances from newly-constructed homes, the appliances were

       removed through the garage, in three of the four burglaries the door between

       the house and the garage was removed from its hinges, and all four burglaries

       were in close proximity. Appellee’s Brief at 18.


[24]   We agree with Hughes that the similarities between the 2006 burglaries and the

       current burglaries present only a “loose common denominator.” Appellant’s

       Brief at 18. The circumstances and the manner in which the burglaries were

       carried out are not so unique or strikingly similar that it is highly probable that

       the same person committed all of them. Indeed, with regard to the similarities,

       the State observes that stainless-steel appliances are common fixtures. Further,

       appliances, unlike copper wiring, plumbing, or pipes, are more readily movable

       from a home that is near the end of the construction process. Finally, the fact

       that the door between the kitchen and the garage was removed from its hinges

       is not particularly unique given that the nature of the items taken—i.e., bulky,

       heavy appliances.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019   Page 13 of 20
[25]   By definition, many burglaries and thefts will have rough parallels. Here, a

       comparison of the circumstances surrounding the 2006 burglaries and the 2014

       burglaries demonstrate that the offenses were generally similar. We, however,

       find nothing so strikingly similar or unique about the circumstances as to

       constitute a signature. Rather, the admission of evidence pertaining to

       Hughes’s prior convictions for burglary eight years prior served only to prove

       that he had a propensity to commit burglary. This is not permissible. See Willis,

       374 N.E.2d at 522.


[26]   The State also asserts, and the trial court found, that aside from identity, the

       evidence of Hughes’s prior convictions was admissible to establish Hughes’s

       plan to gain by stealing stainless-steel appliances from newly-constructed homes

       in a narrowly-targeted area. Evid. R. 404(b)(2). The State further points out

       that the trial court admonished the jury at the time the evidence was

       introduced 6 and instructed the jury as part of final instructions 7 that Hughes’s




       6
           The trial court admonished the jury as follows:

                All right. I have an instruction for you with regards to that document. Okay? So the evidence
                has been introduced that the Defendant was involved in crimes other than those charged in the
                information. This evidence has been received solely on the issue of Defendant’s identity and
                plan. This evidence should be considered by you only for that limited purpose.
       Transcript Vol. 4 at 176.
       7
           Final Instruction No. 14 provided:

                Evidence has been introduced that the Defendant was involved in crimes other than those
                charged in the information. This evidence has been received solely on the issue of Defendant’s
                identity and plan. This evidence should be considered by you only for that limited purpose.
       Transcript Vol. 5 at 134-35.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019                     Page 14 of 20
       2006 convictions were to be considered solely on the issue of Hughes’s identity

       or plan.


[27]   The plan exception of Evid. R. 404(b), permits “proof of an uncharged crime as

       evidence of a preconceived plan which included the charged crime.” Lannan v.

       State, 600 N.E.2d 1334, 1339 (Ind. 1992). “The crimes must, therefore, be so

       related in character, time and place of commission as to establish some plan

       which embraced both the prior and subsequent criminal activity and the

       charged crime.” Id. (quoting Malone v. State, 441 N.E.2d 1339, 1347 (Ind.

       1982)). In addition to finding only general similarities between the 2006 and

       2014 burglaries, we note that eight years passed between the two sets of

       burglary offenses. Given these circumstances, Hughes’s prior convictions were

       not relevant to establishing a plan.


[28]   More importantly, we have long observed that evidence of a prior conviction is

       as prejudicial as evidence can get, and admission of such evidence requires a

       strong showing of probative value. See Evid. R. 403. Hughes’s prior

       convictions were not admissible to prove identity or plan and served only to

       establish a propensity to commit burglary. The probative value of such prior

       convictions does not even come close to outweighing the prejudice Hughes

       suffered from admission of such evidence. Our cases have long admonished

       that “one crime cannot be proved in order to establish another distinct crime

       even though they be of the same kind. Such evidence is highly prejudicial.”

       Loveless v. State, 166 N.E.2d 864, 866 (1960) (in prosecution for burglary,

       erroneous admission of defendant’s alleged involvement in prior burglaries

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019   Page 15 of 20
       required new trial). The admission of evidence relating to Hughes’s prior

       burglary convictions affected his substantial rights, and the trial court’s

       admonishment and instructions to the jury to consider such evidence only for

       the limited purpose of Hughes’s identity and plan did not negate the substantial

       prejudice he suffered.


[29]   We also reject the State’s suggestion that such error was harmless. Errors in the

       admission of evidence are harmless when “the conviction is supported by

       substantial independent evidence of guilt so as to satisfy the reviewing court

       that there is no substantial likelihood the questioned evidence contributed to the

       conviction.” Messel v. State, 80 N.E.3d 230, 232 (Ind. ct. app. 2017), trans.

       denied. Without the evidence of Hughes’s prior convictions, the State’s case

       consisted of the shoeprint evidence, which established only his presence at the

       crime scenes at some point. 8 There were no eyewitnesses, no other physical

       evidence placing Hughes at the crime scenes, and no evidence linking him to

       the missing appliances. The State’s meager evidence only confirms that the

       erroneous admission of Hughes’s prior convictions contributed to his

       convictions.


[30]   Because we reverse Hughes’s convictions and remand for further proceedings,

       we address two additional issues presented by Hughes that might arise on

       remand. First, Hughes argues the trial court erred in finding that Matusko was



       8
        “[M]ere presence at the crime scene with opportunity to commit a crime is not a sufficient basis on which to
       support a conviction.” Brink v. State, 837 N.E.2d 192, 194 (Ind. Ct. App. 2005), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019                   Page 16 of 20
       a skilled witness, as opposed to an expert witness, thereby allowing Matusko to

       give expert opinion testimony without requiring the State to demonstrate the

       reliability of the scientific principles upon which Matusko’s opinion were based.


[31]   A skilled witness does not have the “scientific, technical, or other specialized

       knowledge” of experts and their testimony is based on their perceptions alone,

       not necessarily established scientific principles. Satterfield v. State, 33 N.E.3d

       344, 352-53 (Ind. 2015). An expert witness is “qualified . . . by knowledge,

       skill, experience, training, or education” and “may testify in the form of an

       opinion or otherwise.” Evid. R. 702(a). “Expert scientific testimony is

       admissible only if the court is satisfied that the expert testimony rests upon

       reliable scientific principles.” Evid. R. 702(b). Whether a witness qualifies as

       an expert witness is a matter within the trial court’s sound discretion. Kubsch v.

       State, 784 N.E.2d 905, 921 (Ind. 2003). In the area of shoeprint identification,

       witnesses have been treated as both skilled and expert witnesses.


[32]   In Stroud v. State, 809 N.E.2d 274 (Ind. 2004), our Supreme Court upheld the

       admission of a police officer’s testimony comparing the size for Reebok and

       Nike shoes from his personal experiences under Evid. R. 701. In West v. State,

       755 N.E.2d 173 (Ind. 2001), the State specifically offered, and the trial court

       admitted, testimony from a shoeprint examiner under Evid. R. 702. The Court

       noted that the witness described his duties at the crime lab, the process of lifting

       and comparing shoeprints, and testified that footwear examination is “generally

       accepted within the scientific community.” West, 755 N.E.2d at 181. The

       Court also noted that the witness testified he had participated in an

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019   Page 17 of 20
       international symposium on recovery and enhancement techniques for

       shoeprint analysis and described the procedure he used in comparing the

       shoeprint found at the scene with a particular brand. The Court noted that the

       testimony provided by the shoeprint examiner was “on the margins of

       testimony governed by Rule of Evidence 702(b),” but noted that “[t]o a great

       extent, it [wa]s simply a matter of observations of persons with specialized

       knowledge.” Id. 9 The Court held that the trial court did not abuse its discretion

       in admitting the testimony of the shoeprint examiner under Evid. R. 702.


[33]   Hughes challenges the trial court’s treatment of the State’s shoeprint examiner,

       Matusko, as a skilled witness. Here, Matusko did not simply testify based on

       his personal experience as did the police officer in Stroud. Rather, like the

       shoeprint examiner in West, Matusko identified himself as a forensic scientist

       assigned to the latent print identification unit of the Indiana State Police, set out

       his academic background, detailed his training with regard to shoeprint

       identification, and explained in detail the process he used to identify shoeprints

       at both crime scenes as being made by Hughes’s shoes. With its decisions in

       Stroud and West, our Supreme Court has indicated that it is not inclined to

       consider all testimony relating to shoeprint identification to be opinion

       testimony governed by Evid. R. 702. In light of such precedent and our




       9
         See also Turner v. State, 953 N.E.2d 1039, 1053 (Ind. 2011) (noting that firearm identification, like shoeprint
       identification, can “straddle[] the line” between evidence admissible under Evid. R. 701 and 702).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019                        Page 18 of 20
       standard of review, we cannot say that the trial court abused its discretion in

       admitting Matusko’s testimony under Evid. R. 701.


[34]   We are troubled, however, by the trial court’s giving of Final Instruction 15,

       which twice refers to testimony of an expert witness. Matusko is the only State

       witness who could have been perceived by the jury to have been such an expert.

       Final Instruction 15 is problematic for two reasons. In so instructing the jury,

       the trial court essentially identified Matusko as an expert and enhanced his

       credibility. See Turner v. State, 953 N.E.2d 1039, 1054 n.7 (Ind. 2011)

       (acknowledging the risk that a jury will attach greater weight to an expert

       witness due to the expert’s background and approach); see also Ruiz v. State, 926

       N.E.2d 532, 535 (Ind. Ct. App. 2010), trans. denied. Second, the trial court’s

       determination that Matusko was not an expert served as the basis for limiting

       Hughes’s cross-examination of him regarding the scientific reliability of the

       process on which he based his opinion. 10 On retrial, if the court reaches the

       same conclusion that Matusko is not an expert, what is delineated as Final

       Instruction 15 in this case would not be a proper instruction to be given to the

       jury.


[35]   Judgment reversed and remanded for further proceedings.




       10
          As set out above, Hughes sought but was denied the opportunity to cross-examine Matusko with findings
       set out in the PCAST publication concerning reliability of shoeprint identification. Although we did not
       reach the merits of the admissibility of the PCAST publication, cross-examination regarding the findings
       therein was permissible regardless of whether Matusko was an expert or a skilled witness.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019                Page 19 of 20
Baker, J. and Robb, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1007 | May 14, 2019   Page 20 of 20
