                                                                           FILED
                                                                     Apr 09 2018, 5:53 am

                                                                           CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Deborah Markisohn                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                       Attorney General
Appellate Division
Indianapolis, Indiana                                      Lyubov Gore
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                              IN THE
      COURT OF APPEALS OF INDIANA

K.K.,                                                      April 9, 2018
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           49A02-1710-JV-2274
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Marilyn A. Moores,
Appellee-Petitioner                                        Judge
                                                           The Honorable Geoffrey A. Gaither,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           49D09-1703-JD-395




Crone, Judge.




Court of Appeals of Indiana | Opinion 49A02-1710-JV-2274 | April 9, 2018                     Page 1 of 10
                                                 Case Summary
[1]   K.K. appeals his adjudication as a juvenile delinquent for committing acts that

      would constitute level 4 felony burglary and level 6 felony theft if committed by

      an adult. He argues that the trial court abused its discretion in admitting

      fingerprint evidence. Finding no abuse of discretion, we affirm.


                                     Facts and Procedural History
[2]   In November 2016, Jesus Morales returned to his home and found it in

      disarray; some of his possessions had been moved and opened shoe boxes were

      scattered in the hallway. He discovered that jewelry, a television, electronic

      game systems, and electronic games had been stolen. It appeared that someone

      might have entered the home through the rear bedroom window because it was

      unlocked and the blinds were raised.


[3]   Indianapolis Police Officer Brian Wills photographed the crime scene and

      inspected it for fingerprints. He recovered three fingerprints from a television in

      the master bedroom using fingerprint tape and attached the tape to a latent print

      card, subsequently identified at K.K.’s denial hearing as State’s Exhibit 10.

      Officer Wills also recovered two fingerprints from the outside sill of the window

      believed to be the point of entry and created another latent print card,

      subsequently identified as State’s Exhibit 11. Officer Wills logged Exhibits 10

      and 11 in the latent print database1 with the case information (when, where,



      1
          The record does not otherwise identify the database in which Officer Wills logged Exhibits 10 and 11.

      Court of Appeals of Indiana | Opinion 49A02-1710-JV-2274 | April 9, 2018                          Page 2 of 10
      and by whom the latent prints were recovered). The database generated a latent

      print number for each card, which he recorded on the back of the cards. He

      placed the cards in a locked box used to store latent print cards, which was kept

      in a secure room.


[4]   Rochella O’Neil, an Indianapolis Police Department latent print examiner, was

      assigned to examine the latent fingerprints on Exhibits 10 and 11 for

      identification. She had been a latent print examiner for thirteen and a half years

      and had received training in basic latent print identification, complex latent

      print identification, and analysis of distortion in latent prints. To identify the

      fingerprints, she used the ACE-V method (analysis, comparison, evaluation,

      and verification). Pursuant to that method, she searched for comparable

      fingerprints in the Marion County Automatic Fingerprint Identification System

      (AFIS), but the search did not yield any matches. She then searched Indiana’s

      database and found what she perceived to be a match. She requested a hard

      copy of the fingerprints (“the Database Fingerprints”) from the State so that she

      could perform a manual comparison. Based on her evaluation, she concluded

      that fingerprints on Exhibits 10 and 11 matched the Database Fingerprints. The

      Database Fingerprint card provided the name, date of birth, race, sex, height,

      weight, and state identification number of the individual who was fingerprinted

      and identified the fingerprints as those of K.K. The Database Fingerprint card

      did not contain any other information.


[5]   On March 16, 2017, the State filed, and the trial court subsequently approved, a

      delinquency petition alleging that sixteen-year-old K.K. committed acts that

      Court of Appeals of Indiana | Opinion 49A02-1710-JV-2274 | April 9, 2018   Page 3 of 10
      would constitute level 4 felony burglary and level 6 felony theft if committed by

      an adult. On May 9, 2017, the State filed a motion to require K.K. to submit to

      fingerprinting, which the trial court granted.


[6]   On August 15, 2017, a denial hearing was held. That morning, O’Neil

      fingerprinted K.K., who was now seventeen years old, and this fingerprint card

      was subsequently identified as State’s Exhibit 12. Officer Wills testified at the

      hearing, and the trial court admitted Exhibits 10 and 11. O’Neil also testified at

      the hearing. When the State began to question O’Neil about Exhibit 12, the

      trial court permitted K.K.’s counsel to question her as to whether she knew

      anything about the circumstances surrounding the creation of the Database

      Fingerprints. O’Neil testified that she had “absolutely no knowledge of what

      happened when [K.K.] was printed or why he was printed.” Tr. Vol. 2 at 27.

      K.K. then objected to the admission of Exhibit 12 and moved to suppress any

      testimony based on it. In support, K.K. argued that the Database Fingerprints

      were illegally obtained and retained “as far as we know” because the State had

      not demonstrated that they complied with the applicable statutes, and thus any

      evidence obtained from using the Database Fingerprints was the “fruit of the

      poisonous tree.” Id. at 30-31. The trial court overruled K.K.’s objection and

      denied his motion to suppress and allowed O’Neil to testify over K.K.’s

      continuing objection. O’Neil testified that based on her experience as an expert

      in the field, three fingerprints on Exhibit 10 matched K.K.’s left thumb print on

      Exhibit 12, and one of the fingerprints on Exhibit 11 matched K.K.’s right




      Court of Appeals of Indiana | Opinion 49A02-1710-JV-2274 | April 9, 2018   Page 4 of 10
      thumbprint on Exhibit 12. Id. at 39. The State did not seek to admit the

      Database Fingerprints.


[7]   After the State rested, K.K. moved for involuntary dismissal of both counts.

      The trial court denied his motion and entered true findings on both counts.

      K.K. now appeals.


                                      Discussion and Decision
[8]   K.K. argues that the trial court abused its discretion in admitting the State’s

      fingerprint evidence. We review a trial court’s decision on the admission of

      evidence for an abuse of discretion. Burnett v. State, 815 N.E.2d 201, 204 (Ind.

      Ct. App. 2004). A trial court abuses its discretion where its decision is clearly

      against the logic and effect of the facts and circumstances before it. Id. In

      determining whether the trial court has abused its discretion, we do not reweigh

      the evidence, and we consider only evidence favorable to the ruling or

      unrefuted evidence favorable to the respondent. Beasley v. State, 46 N.E.3d

      1232, 1235 (Ind. 2016). “[A] claim of error in the admission or exclusion of

      evidence will not prevail on appeal unless a substantial right of the party is

      affected.” Burnett, 815 N.E.2d at 204.


[9]   Specifically, K.K. asserts that Exhibit 12 and O’Neil’s testimony based thereon

      were inadmissible because the State was unable to establish that the Database

      Fingerprints were taken in compliance with Indiana Code Sections 31-39-5-

      1(a), -3, -4, and -5 (“the Juvenile Fingerprinting Statutes”). Indiana Code

      Section 31-39-5-1(a) permits law enforcement to take and file the fingerprints or

      Court of Appeals of Indiana | Opinion 49A02-1710-JV-2274 | April 9, 2018   Page 5 of 10
       photographs of a child if “(1) the child is taken into custody for an act that

       would be a felony if committed by an adult; and (2) the child was at least

       fourteen (14) years of age when the act was allegedly committed.” Section 31-

       39-5-3 states that if “(1) latent fingerprints are found during the investigation of

       an offense; and (2) a law enforcement officer has probable cause to believe that

       the latent fingerprints belong to a certain child; the officer may fingerprint that

       child and compare the child’s fingerprints with the latent fingerprints.” Section

       31-39-5-4(a) provides that upon written request, the law enforcement agency

       shall destroy or deliver to the child the child’s fingerprints or photographs if “(1)

       the child was taken into custody and no petition was filed against the child; (2)

       the petition was dismissed because of mistaken identity; (3) the petition was

       dismissed because no delinquent act was actually committed; or (4) the petition

       was dismissed for lack of probable cause.” Under Section 31-39-5-4(b), the law

       enforcement agency does not have to destroy the child’s fingerprints or

       photographs if the child has a record of prior arrests or has another charge

       pending. And Section 31-39-5-5 requires law enforcement agencies to provide

       written notice to the child and the child’s parent or guardian at the time the

       child’s fingerprints or photographs are taken of the child’s right under Section

       31-9-5-4 and to “comply with any request for destruction or surrender of the

       records not later than sixty (60) days of the request.”


[10]   At the denial hearing, O’Neil testified that she had “absolutely no knowledge of

       what happened when [K.K.] was printed or why.” Tr. Vol. 2 at 27. K.K. is

       correct that the State did not present evidence to establish that the Database


       Court of Appeals of Indiana | Opinion 49A02-1710-JV-2274 | April 9, 2018   Page 6 of 10
       Fingerprints were taken in compliance with the Juvenile Fingerprinting

       Statutes. However, K.K. does not dispute that the fingerprints in Exhibit 12

       were taken in accordance with the Juvenile Fingerprinting Statutes. Also,

       O’Neil’s testimony was based on a comparison of the fingerprints on Exhibit 12

       with those on Exhibits 10 and 11, and K.K. does not dispute the admissibility of

       Exhibits 10 and 11.


[11]   K.K.’s sole challenge to the admissibility of Exhibit 12 and O’Neil’s testimony

       is based on the Database Fingerprints. The Database Fingerprints were

       instrumental in establishing probable cause to charge him. His argument that

       Exhibit 12 and O’Neil’s testimony are inadmissible conflates the admissibility

       of evidence at trial with evidence of probable cause. We reject his unsupported

       assumption that the use of the Database Fingerprints to establish probable cause

       requires, as a matter of law, that the State present evidence to prove that they

       were taken in compliance with the Juvenile Fingerprinting Statutes as a

       prerequisite for the admissibility for Exhibit 12 and testimony based on it

       (which in all other respects constitute admissible fingerprint evidence).


[12]   There may be circumstances that would require the State to prove that

       fingerprints used to establish probable cause were taken and stored in

       compliance with the Juvenile Fingerprinting Statutes, for example, if the

       juvenile came forward with some evidence that raised a question regarding

       whether the fingerprints were obtained and stored in compliance with them.

       Although our courts have rarely had occasion to address these Statutes, in J.B.

       v. State, 868 N.E.2d 1197 (Ind. Ct. App. 2007), trans. denied, another panel of

       Court of Appeals of Indiana | Opinion 49A02-1710-JV-2274 | April 9, 2018    Page 7 of 10
       this court addressed a juvenile’s specific challenge to the State’s compliance

       with Section 31-39-5-2.2


[13]   The facts in J.B. are similar to ours, although the case is procedurally different.

       A house was burglarized and the police recovered latent fingerprints. O’Neil

       examined the latent fingerprints and found a matching set of prints on AFIS,

       which belonged to J.B. The State then filed a delinquency petition alleging that

       J.B. had committed an act that would constitute burglary if committed by an

       adult. The State filed a motion seeking permission to fingerprint J.B., who

       moved to suppress any fingerprint evidence. After a hearing, the trial court

       denied his motion and granted the State permission to fingerprint him. J.B.

       sought and obtained the trial court’s certification of the order for interlocutory

       appeal.


[14]   On appeal, J.B. argued that the State failed to adhere to the requirement of

       Section 31-39-5-2 that fingerprint and photograph files of children be

       “separated” from those of adults. The J.B. court concluded that “juvenile

       records must be stored such that persons authorized to access adult records but

       not juvenile records will not be able to access the latter while accessing the

       former.” 868 N.E.2d at 1200. The J.B. court then concluded that there was no

       evidence in the record that the State maintained AFIS, which held both juvenile

       and adult fingerprints, so that juvenile records were accessible only to



       2
         The other case involving the Juvenile Fingerprinting Statutes is Turner v. State, 508 N.E.2d 541 (Ind. 1987),
       but that case did not involve the use of juvenile fingerprints that were already in a database.

       Court of Appeals of Indiana | Opinion 49A02-1710-JV-2274 | April 9, 2018                           Page 8 of 10
       authorized persons, and therefore the State failed to prove that it had stored

       J.B.’s fingerprints in compliance with Section 31-39-5-2. Id. at 1201.

       Ultimately, the J.B. court determined that the State’s noncompliance did not

       require reversal because O’Neil was authorized to access juvenile records and

       would have discovered the fingerprints anyway. Id. at 1201-02. J.B. also

       argued on appeal that the State failed to comply with Section 31-39-5-1, but the

       J.B. court found that argument waived because it was not presented to the trial

       court. Id. at 1202.


[15]   Significantly, in J.B., the State stored juvenile and adult records together on the

       AFIS database, raising the potential that the juvenile records were not stored in

       compliance with Section 31-39-5-2. It was then incumbent upon the State to

       prove that unauthorized persons would not be able to access the juvenile

       records, and the State had not produced that evidence. Here, K.K. has not

       come forward with any evidence that the State actually violated the Juvenile

       Fingerprinting Statutes in some respect and there are no circumstances that call

       into question the State’s compliance with the Statutes.3 Accordingly, we cannot

       say that the trial court abused its discretion in admitting Exhibit 12 and




       3
         We observe that K.K. has a history of juvenile arrests and adjudications beginning when he was thirteen
       years old. Appellant’s App. Vol. 2 at 37-38. When he was fifteen, K.K. was arrested for committing acts that
       would have been level 6 felony theft and level 4 felony burglary if committed by an adult. Because he was
       taken into custody for acts that would have been felonies and had committed those acts when he was at least
       fourteen years old, the State would have had the authority under Section 31-39-5-1(a) to take and file his
       fingerprints. Because K.K. had a history of prior arrests, the State would not have been required to destroy
       his fingerprints pursuant to Section 31-39-5-4(b).

       Court of Appeals of Indiana | Opinion 49A02-1710-JV-2274 | April 9, 2018                       Page 9 of 10
       O’Neil’s fingerprint testimony.4 Therefore, we affirm the true findings for

       burglary and theft.


[16]   Affirmed.


       Bailey, J., and Brown, J., concur.




       4
         K.K. raises a sufficiency of the evidence argument based solely on the inadmissibility of the fingerprint
       evidence. Because we have found the fingerprint evidence admissible, we need not address this argument.

       Court of Appeals of Indiana | Opinion 49A02-1710-JV-2274 | April 9, 2018                        Page 10 of 10
