Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                            Feb 27 2014, 9:39 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

CHRIS P. FRAZIER                                 GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 JOSEPH Y. HO
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVID BURROUGHS,                                 )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )    No. 49A04-1307-CR-360
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Kurt M. Eisgruber, Judge
                            Cause No. 49G01-1304-FC-27916


                                      February 27, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                          Case Summary

        David Burroughs appeals his conviction for Class C felony burglary. We affirm.

                                                Issue

        The sole issue is whether the trial court properly admitted DNA evidence from blood

samples retrieved at the crime scene over Burroughs’s chain of custody objection.

                                                Facts

        In the morning of December 2, 2012, the Indianapolis Metropolitan Police

Department (“IMPD”) responded to a reported break-in at a cell phone store. The front

door’s glass was shattered, as was a glass display case, and there were apparent blood stains

at both locations. Officer Damon King, an evidence technician, collected the apparent

blood stains with two separate swabs. Sarah Klaussen of the Indianapolis-Marion County

Forensic Services Agency (“FSA”) later retrieved the swabs, tested them to confirm that

they in fact contained human blood, and then submitted them for further DNA testing.

IMPD Detective Brian Hofmeister subsequently obtained a warrant for a buccal swab from

Burroughs to collect DNA.1 FSA DNA analyst Shelley Crispin then compared the DNA

from the blood stains collected at the crime scene with Burroughs’s DNA and determined

that the three samples matched. Crispin found no evidence of any other person’s DNA in

the crime scene blood samples. There was no other evidence placing Burroughs at the

crime scene.




1
 It is unclear from the trial transcript what led Detective Hofmeister to obtain a warrant to collect
Burroughs’s DNA, but the probable cause affidavit indicates that the blood samples preliminarily matched
DNA previously collected from Burroughs through the FBI and the Department of Correction.
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       The State charged Burroughs with Class C felony burglary and Class D felony theft.

During trial, Officer King testified that, after collecting the blood samples on the swabs, he

placed a plastic cap over them, placed each of the swabs into two separate small envelopes,

marked each small envelope with the location where the evidence was collected, and then

placed the small envelopes into a larger envelope, which he then sealed and initialed.

Klaussen, however, testified that when she retrieved the samples to test for the presence of

human blood, the two swabs were together within one single smaller envelope, not two

separate envelopes, placed inside of the larger envelope. The plastic caps were still on the

swabs. Based on the discrepancy between Officer King’s and Klaussen’s testimony

regarding how the swabs were packaged, Burroughs objected to admission of the DNA test

results because of an alleged break in the chain of custody of the blood samples. The trial

court overruled the objection. The jury subsequently found Burroughs guilty of burglary

and acquitted him of theft. Before sentencing, Burroughs asked the trial court to reconsider

admission of the DNA test results, but it refused to do so. Burroughs now appeals.

                                          Analysis

       On appeal, Burroughs renews his challenge to the admissibility of the DNA test

results. We review trial court rulings on the admission or exclusion of evidence only for

an abuse of discretion. Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012).

“An abuse of discretion occurs when the trial court’s decision is clearly against the logic

and effect of the facts and circumstances before the court or it misinterprets the law.” Id.

       Regarding chain of custody for “fungible” evidence, including blood samples, the

State bears the burden of giving reasonable assurances that the evidence remained in an

                                              3
undisturbed condition as it passed through various hands. Troxell v. State, 778 N.E.2d

811, 814 (Ind. 2002). The State need not establish a perfect chain of custody, and once the

State strongly suggests the exact whereabouts of the evidence, any gaps go to the weight

of the evidence and not to its admissibility. Id. There also is a presumption of regularity

in the handling of evidence by officers and that officers exercise due care in performing

their duties. Id. To exclude evidence based on an inadequate chain of custody, a defendant

must present evidence that does more than raise a mere possibility that the evidence may

have been tampered with. Id.

       Here, there was admittedly a discrepancy between the testimony of Officer King

and Klaussen regarding precisely how the crime scene blood sample swabs were packaged.

Burroughs argues that this discrepancy points to “a high likelihood the samples were

contaminated or otherwise tampered with.” Appellant’s Br. p. 7. We disagree. As

suggested by the trial court, the discrepancy in the testimony could just as easily be

explained by faulty memory on the part of either Officer King or Klaussen regarding

precisely how the swabs were packaged. The large envelope into which the swabs had

been placed was still sealed when Klaussen retrieved it. The swabs also still had the plastic

caps on them, to protect against possible cross-contamination. Additionally, there was no

evidence of any DNA in the blood samples other than from Burroughs, indicating that the

samples were not contaminated by any other material.

       Burroughs’s argument invites speculation that someone in the IMPD or FSA lab

somehow replaced the samples Officer King collected at the scene with samples of

Burroughs’s blood before Klaussen retrieved the evidence envelope.            We conclude,

                                             4
however, that such speculation is far from enough evidence to overcome the presumption

that officers carry out their duties properly and do not tamper with evidence. The

discrepancy in testimony between Officer King and Klaussen regarding the packaging of

the blood samples at best only raises a “mere possibility” of tampering that goes to the

weight of the DNA evidence, and it does not represent a fatal break in the chain of custody.

                                       Conclusion

       The trial court did not abuse its discretion in admitting the DNA results from the

crime scene blood swabs into evidence. We affirm Burroughs’s conviction.

       Affirmed.

ROBB, J., and BROWN, J., concur.




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