MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 23 2019, 7:01 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




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Brian A. Karle                                          Curtis T. Hill, Jr.
Ball Eggleston, PC                                      Attorney General of Indiana
Lafayette, Indiana
                                                        Jesse R. Drum
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Johnny Jones,                                           December 23, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1190
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Shatrese M.
Appellee-Plaintiff.                                     Flowers, Judge
                                                        Trial Court Cause No.
                                                        49G02-1509-MR-31503



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019               Page 1 of 12
                                           Statement of the Case
[1]   Johnny Jones appeals his convictions for murder, a felony, and rape, as a Class

      A felony, following a jury trial. Jones raises one issue for our review, namely,

      whether the trial court abused its discretion when it admitted evidence that his

      DNA had been found on swabs taken from the victim during an autopsy.


[2]   We affirm.


                                     Facts and Procedural History
[3]   On November 5, 1998, officers with the Indianapolis Police Department

      responded to a call regarding a house fire at the home of Kenya Edwards.

      When officers arrived, they observed that a window to a bedroom “had been

      broken out.” Tr. Vol. II at 117. Once inside, officers saw “obvious signs of a

      struggle.” Id. at 138. Officers then located Edwards’ body in the basement, and

      they saw that “the majority of the upper part” of her body had been “burned

      off.” Id. at 150. The officers also observed that Edwards was not wearing any

      pants and that she had electrical cords tied around her ankles.


[4]   The next day, the coroner performed an autopsy on Edwards. Doctor Thomas

      Sozio, a forensic pathologist, reviewed the coroner’s report. 1 Dr. Sozio noted

      that Edwards “displayed areas of burns to the outside of her body” and that

      “[t]here was black soot that was present within the nose, mouth, [and] in the




      1
          During the pendency of the case, the coroner suffered a stroke and is no longer able to communicate.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019                 Page 2 of 12
      larynx,” which told him “that she was alive when the fire was starting.” Tr.

      Vol. III at 14, 16. He also noticed that “there were some ligatures around the

      ankles and wrist areas” where electrical cords “had been cut and tied.” Id.

      Based on the injuries to Edwards’ body, Dr. Sozio concluded that her death

      was a homicide.


[5]   David Willoughby, the liaison between the Marion County Forensic Service

      Agency (“Crime Lab”), the police department, and the coroner, attended

      Edwards’ autopsy. While there, Willoughby collected swabs from Edwards’

      mouth, vagina, and anus. Willoughby then packaged the swabs in envelopes

      and put his initials over the seals “to ensure that what [he] collected from the

      autopsy [wa]s what [wa]s contained inside the envelopes[.]” Id. at 2.

      Willoughby labeled the oral swabs as item M3, the vaginal swabs as item M5,

      and the anal swabs as item M7. Willoughby then placed all of the evidence that

      he had collected into the “property room,” which is a sealed facility. Id.


[6]   Sangeete Joshi, a serologist with the Crime Lab, then took those envelopes

      from the property room for analysis. The envelopes were “sealed” and “did not

      show any signs of tampering.” Id. at 124. When she opened the envelopes,

      Joshi saw that each envelope contained four swabs, which she tested for semen.

      Joshi did not find semen on the oral swabs, but she found semen on the vaginal

      and anal swabs. Accordingly, Joshi prepared the samples to be analyzed by a

      DNA analyst. However, because there was no sample from a suspect for

      comparison, Joshi placed the samples into cold storage.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019   Page 3 of 12
[7]   In 2009, Tonya Fishburn, a forensic scientist with the Crime Lab, took the

      vaginal and anal swabs that Joshi had prepared out of storage. Fishburn then

      extracted the DNA from the samples and separated it into epithelial fractions

      and sperm fractions. For the vaginal swabs, Fishburn was able to determine

      that the epithelial fraction matched the DNA profile for Edwards. She was also

      able to determine that the DNA for the sperm fraction was a mixture of a major

      contributor and a minor contributor. Fishburn concluded that the major

      contributor came from Unknown Male A and the minor contributor came from

      Edwards. Fishburn was also able to determine that the epithelial fraction of the

      DNA from the anal swabs matched Edwards’ DNA profile and that the DNA

      from the sperm fraction was a mixture of a major and minor contributor. For

      that sample, the DNA profile of the major contributor matched that of

      Edwards, and the DNA profile of the minor contributor was from Unknown

      Male A. Fishburn then placed the DNA sample of Unknown Male A into a

      nationwide database.


[8]   Thereafter, in January 2015, Detective David Ellison with the Indianapolis

      Metropolitan Police Department received information “that there was a

      potential hit” on the DNA of Unknown Male A. Id. at 46. On February 3,

      Detective Ellison learned that the DNA of Unknown Male A matched Jones’

      DNA. Accordingly, Detective Ellison interviewed Jones. Jones denied

      knowing Edwards, and Detective Ellison was unable “to find any connection”

      between Jones and Edwards. Id. However, Detective Ellison discovered that

      Jones lived “less than a mile and a half” from Edwards at the time of the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019   Page 4 of 12
       murder. Id. at 63. And, after he spoke with Jones, Detective Ellison obtained a

       DNA sample in order to perform a “confirmation swab.” Id. at 47. Thereafter,

       Fishburn tested the DNA sample that Detective Ellison had obtained and

       confirmed that the DNA profile of Unknown Male A matched Jones’ DNA

       profile.


[9]    The State charged Jones with murder, a felony (Count 1); felony murder; a

       felony (Count 2); burglary, as a Class A felony (Count 3); and rape, as a Class

       A felony (Count 4). The trial court held a jury trial on April 1 through April 3,

       2019. Prior to the start of the first day of the trial, the State moved to dismiss

       Count 3, which motion the trial court granted.


[10]   At Jones’ trial, the State called Willoughby as a witness. During his testimony,

       the State moved to admit the oral, vaginal, and anal swabs as evidence. The

       swabs were in their envelopes, which contained Willoughby’s “handwriting on

       the front, where it came from, the date and the . . . autopsy number,” and his

       initials on the seals. Id. Jones stated that he had “[n]o objection” to the

       admission of that evidence. Id. at 3.


[11]   On cross-examination, Jones asked Willoughby if, in this particular autopsy, he

       had taken “three swabs.” Id. at 4. Willoughby responded: “Yes[.]” Id. Jones

       then asked Willoughby if item M3 “was one oral swab,” if item M5 “was one

       vaginal swab,” and if item M7 was “one anal swab.” Id. at 6, 7. Willoughby

       responded affirmatively to all three questions. Jones then asked if “the oral

       swab, anal swab, and vaginal swab” were “the only three swabs [he] took.” Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019   Page 5 of 12
       at 8. Willoughby responded that they were. At that point, Jones had admitted

       as evidence a copy of Willoughby’s laboratory report that detailed the items

       that Willoughby had collected from Edwards’ autopsy. That report identified

       item M3 as “one (1) oral swab,” item M5 as “one (1) vaginal swab,” and item

       M7 as “one (1) anal swab.” Ex. at 115.


[12]   Joshi also testified at Jones’ trial. When she began to testify about her analysis

       of the swabs, Jones interjected and asked if the envelope that contained the oral

       swabs was “sealed shut” when she received it. Tr. Vol. III at 95. Joshi stated

       that it was. Jones also asked if, on the outside of the envelope, “it said oral

       swab” with “no s.” Id. at 96. Joshi responded that the envelope was “only

       marked oral swab.” Id. Jones then asked if there were four swabs inside of the

       envelope, to which Joshi responded that there were.


[13]   At that point, Jones objected “to any . . . testimony about any testing or

       analysis of these swabs” because there was an “inaccurate chain of custody” as

       “it’s only been laid a foundation that there was one swab taken, and now we

       have four swabs in the envelope.” Id. In response, the State asserted that

       “those exhibits are sealed with David Willoughby’s initials and they are sealed

       again with Dr. Joshi’s initials. There’s no indication that those seals have been

       broken or tampered with, or that anyone else has gotten in those. So as far as

       the chain of custody, that’s been established.” Id. The trial court overruled

       Jones’ objection.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019   Page 6 of 12
[14]   The State then proceeded to question Joshi about the swabs. Specifically, the

       State asked Joshi if she had tested the swabs for seminal material. Joshi

       testified that she did not identify any semen on the oral swabs but that she

       found semen on the vaginal and anal swabs. On cross-examination, Jones

       again questioned Joshi about the evidences she had received from the property

       room. Jones asked if the envelope that contained the vaginal swabs was labeled

       as “one vaginal swab.” Id. at 146. Joshi responded that it was “marked as

       vaginal swab. They didn’t mark how many vaginal swab [sic]. They didn’t

       mark the one vaginal swab, but they marked as vaginal swab.” Id. When Jones

       asked if the envelope listed one vaginal swab as the quantity, Joshi responded

       that “[o]ne means . . . only the one envelope.” Id. at 147.


[15]   Because of the “issue” that had come up regarding the number of swabs that

       Willoughby had taken during the autopsy, the State recalled Willoughby as a

       witness. Id. at 165. Willoughby testified that he did not have an independent

       recollection of having taken the swabs. However, he testified that, “[d]ue to the

       identification and the correct procedures of the label on it with [his] initials and

       case number, the date and [his] initials with the evidence seal,” he was able to

       determine that the envelope that contained the four vaginal swabs contained

       “what [he] collected . . . at the autopsy.” Id. at 165. Willoughby further

       testified that the envelope that contained four anal swabs was “in the condition

       [in] which [he] sealed it with [his] initials, the case number, the date, [and] the

       autopsy number[.]” Id. at 167.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019   Page 7 of 12
[16]   Jones again cross-examined Willoughby and asked about the number of swabs

       he had taken and the fact that each envelope listed only one oral swab, one

       vaginal swab, and one anal swab. Willoughby stated that the label “probably

       should have . . . had an s, swabs.” Id. at 171. Willoughby further testified that

       it is “standard operating procedure” to comingle all swabs taken from one area

       in the same envelope “regardless of how many swabs you used” as long as they

       are not comingled with the swabs of another area. Id. at 172. In addition, he

       testified that “the swabs identification on there means that a swabbing was

       done” and that, “no matter how many swabs per orifice, it’s counted as a

       swabbing.” Id. at 172, 174.


[17]   The State also presented Fishburn’s testimony as evidence. Fishburn testified

       that the major contributor to the sperm fraction of the DNA from the vaginal

       swab matched the DNA profile of Jones “and is estimated to occur once in

       more than 330 billion unrelated individuals,” which is the “upper threshold” for

       their statistics. Id. at 192. Fishburn also testified that the minor contributor to

       the sperm fraction of the anal swab matched Jones’ DNA profile.


[18]   At the conclusion of the trial, the jury found Jones guilty of Counts 1 and 4, but

       not guilty of Count 2. The court entered judgment of conviction accordingly

       and sentenced Jones to an aggregate sentence of 110 years executed in the

       Department of Correction. This appeal ensued.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019   Page 8 of 12
                                       Discussion and Decision
[19]   Jones contends that the trial court abused its discretion when it admitted certain

       evidence. As our Supreme Court has stated:


               Generally, a trial court’s ruling on the admission of evidence is
               accorded “a great deal of deference” on appeal. Tynes v. State.
               650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best
               able to weigh the evidence and assess witness credibility, we
               review its rulings on admissibility for abuse of discretion” and
               only reverse “if a ruling is ‘clearly against the logic and effect of
               the facts and circumstances and the error affects a party’s
               substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
               2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).


       Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015). On appeal, Jones contends that

       the trial court abused its discretion when it admitted as evidence the swabs and

       the subsequent testimony regarding the analysis of those swabs because the

       State had failed to establish an adequate chain of custody for that evidence. 2


[20]   It is well settled that the State “bears a higher burden to establish the chain of

       custody of ‘fungible’ evidence, such as blood and hair samples, whose

       appearance is indistinguishable to the naked eye.” Troxell v. State, 778 N.E.2d

       811, 814 (Ind. 2002). But an “adequate foundation establishing a continuous




       2
         The State contends that Jones has waived his argument for our review because he affirmatively stated that
       he had no objection to the admission of the swabs as evidence. The State is correct that Jones had no
       objection when the State moved to admit the swabs. However, after Joshi first testified that each envelope
       contained four swabs instead of one, Jones objected. We assume for the sake of argument that Jones’
       objection at the time the discrepancy between the number of swabs became apparent was timely and that he
       preserved the issue for our review.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019               Page 9 of 12
       chain of custody is established if the State accounts for the evidence at each

       stage from its acquisition, to its testing, and to its introduction at trial.”

       Espinoza v. State, 859 N.E.2d 375, 382 (Ind. Ct. App. 2006). “To establish a

       proper chain of custody, the State must give reasonable assurances that the

       evidence remained in an undisturbed condition.” Id.


[21]   Jones specifically asserts that the State failed to establish an adequate chain of

       custody for the vaginal and anal 3 swabs because Willoughby testified that he

       had collected only one swab from each location on Edwards’ body but that

       Joshi testified that she had received four swabs to test. In essence, Jones

       contends that the State failed to account for three of the four swabs in each

       envelope from their acquisition by Willoughby until their testing by Joshi. 4 We

       cannot agree.


[22]   The State readily established a proper chain of custody over the swabs. The

       record demonstrates that Willoughby took swabs of Edwards’ mouth, vagina,




       3
         Jones also contends that the State failed to establish an adequate chain of custody for the oral swabs.
       However, Joshi did not find any semen on those swabs. Accordingly, there was no evidence obtained from
       those swabs that was harmful to Jones’ defense and we need not address his argument regarding the oral
       swabs.
       4
         To the extent that Jones’ argument is premised on the label on the envelopes, which used “swab” in the
       singular, as an identifier of the number of swabs within an envelope, that argument is without merit.
       Willoughby testified that “the swabs identification” on the envelope “means that a swabbing was done.” Tr.
       Vol. III at 172. He further testified that the envelope “should have . . . had an s, swabs.” Id. at 171. In
       addition, when asked if the quantity on an envelope listed one swab, Joshi testified that the “[o]ne
       means . . . only the one envelope.” Id. at 147. And Joshi testified that, even though one of the envelopes was
       labeled “vaginal swab,” that was not an indication of “how many vaginal swab [sic].” Id. at 147.
       Accordingly, it is clear that the singular use of “swab” on the envelope’s label did not denote the number of
       swabs used but, rather, simply identified that a swabbing of that area had been done.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019               Page 10 of 12
       and anus during her autopsy. He then packaged those swabs in envelopes and

       wrote his initials over the seals “to ensure that what [he] collected from the

       autopsy [wa]s what [wa]s contained inside the envelope.” Tr. Vol. III at 2.

       Willoughby then placed the envelopes into the property room, which is a

       “sealed facility” that can only be accessed by authorized personnel. Id.

       Thereafter, Joshi took the envelopes from the property room and observed that

       they were “sealed” and “did not show any signs of tampering.” Id. at 124.

       When she opened the envelopes, there were four swabs in each envelope.


[23]   Further, Willoughby testified that he was able to determine that the envelope

       with the four vaginal swabs contained “what [he] collected . . . at the autopsy.”

       Id. at 165. Additionally, Willoughby testified that the envelope that contained

       the anal swabs was “in the condition [in] which [he] sealed it with [his] initials,

       the case number, the date, [and] the autopsy number[.]” Id. at 167. And

       Willoughby testified that it is “standard operating procedure” to comingle all

       swabs taken from one area “regardless of how many swabs you used” in the

       same envelope as long as they are not comingled with swabs from another area.

       Id. at 172. Accordingly, despite Jones’ assertions, it is clear that the envelopes

       that Joshi received for testing, which each contained four swabs, were in the

       same condition that they had been in when Willoughby sealed them.


[24]   Any apparent discrepancy between the number of swabs taken was dispelled by

       Willoughby’s testimony, which we have already noted, that “no matter how

       many swabs per orifice, it’s counted as a swabbing.” Id. at 174. And the

       number of swabs packaged in each envelope does not affect the ultimate finding

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019   Page 11 of 12
       that the evidence collected matched Jones’ DNA profile. The evidence

       supports the conclusion that the protocols for collecting, preserving, and testing

       the swabs were followed. And there is no question that Willoughby collected

       and secured the evidence, which was intact when Joshi received it for testing.

       The chain of custody was uninterrupted.


[25]   The State gave reasonable assurances that the swabs remained in an

       undisturbed condition from their acquisition to their testing. As such, the State

       established a proper chain of custody for the swabs, and the trial court did not

       abuse its discretion when it admitted as evidence the swabs or the testimony

       regarding the analysis of the swabs. We therefore affirm Jones’ convictions.


[26]   Affirmed.


       Vaidik, C.J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1190 | December 23, 2019   Page 12 of 12
