MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Dec 04 2019, 8:28 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jaquan Davis,                                            December 4, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-333
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc Rothenberg,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Shatrese Flowers,
                                                         Judge
                                                         Trial Court Cause No.
                                                         49G02-1509-F3-32940



Tavitas, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019                   Page 1 of 12
                                             Case Summary
[1]   Jaquan Davis appeals his convictions for armed robbery, a Level 3 felony, and

      battery by means of a deadly weapon, a Level 5 felony. We affirm.


                                                     Issue
[2]   Davis raises three issues on appeal, which we consolidate and restate as

      whether the trial court properly admitted a fingerprint examiner’s opinion that

      Davis was the source of a latent palm print recovered from the crime scene.


                                                     Facts
[3]   On September 5, 2015, as cashier Carmen Hernandez-Saucedo worked in

      Obadiah’s Smoke Shop (“the store”) in Indianapolis, a tall, African-American

      man in a blue shirt approached the cash register to make his second purchase of

      the day. Hernandez-Saucedo went behind the counter to collect payment, and

      the man repeatedly struck Hernandez-Saucedo’s face, took the contents of the

      cash register, and pointed a gun at Hernandez-Saucedo. When Hernandez-

      Saucedo attempted to flee, the man shot her in the thigh and fled the store.

      After the robbery, Hernandez-Saucedo saw the man drive away in a green

      vehicle with gold hubcaps.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019   Page 2 of 12
[4]   Video surveillance footage 1 revealed that the man carried what appeared to be a

      .380 caliber handgun, wore black Jordan 13 sneakers with red soles, and

      touched the cash register and the inside surface of the front door of the store.

      Indianapolis Metropolitan Police Department Detective Jerry Townsend

      obtained descriptions of the man and the green car from Hernandez-Saucedo;

      and still photographs from the surveillance footage yielded a license plate

      number for the green car. The license plate number was associated with a green

      1994 Pontiac Bonneville that was registered to Demetrius Muhammad. 2


[5]   Officer David Waterman, an evidence technician for IMPD, lifted four latent

      prints 3 from the store and delivered them to IMPD latent fingerprint examiner,

      Rochella O’Neil. Of two palm prints that were recovered from the door of the

      store, only one was usable. The usable palm print (“the palm print”) was

      comprised mostly of friction ridge skin and was an “excellent quality print”

      because of its size and “the amount of minutiae that was available.” Tr. Vol.




      1
        Surveillance cameras outside the store captured the following: (1) a green vehicle with gold hubcaps drove
      past the store before the robbery and traveled from the left to the right side of the camera frame; (2) a man
      soon entered the camera frame from the right side of the camera frame; and (3) after the robbery, the man ran
      out of the store toward the right side of the camera frame. Surveillance footage from a different angle also
      captured: (1) the green vehicle before the robbery; (2) the man’s exit from the green vehicle before he entered
      the store; and (3) the man as he ran from the store, entered the car, and drove away.

      2
       The vehicle owner’s name is spelled differently throughout the record; we will employ “Muhammad” here.
      During the underlying investigation, IMPD eliminated Muhammad as a suspect in the robbery. See Conf.
      App. Vol. II pp. 23-24.
      3
        “A latent print is a reproduction of friction ridge skin that’s left on something that has been touched”; “[i]t’s
      not usually visible to the naked eye”; and [i]t needs to be enhanced with the use of print powders or other
      latent chemicals.” Tr. Vol. II p. 21.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019                       Page 3 of 12
      III p. 32. O’Neil processed the palm print through the Automated Fingerprint

      Identification System (“AFIS”) 4 database on September 8, 2015. Although

      Davis’ prints were in the AFIS database at the time, Davis was not—to

      O’Neil’s knowledge—among the candidates generated by AFIS as potential

      sources of the palm print.


[6]   On September 11, 2015, as Detective Townsend drove in the vicinity of

      Muhammad’s address, Detective Townsend observed a green Pontiac

      Bonneville with gold hubcaps. Detective Townsend watched as the driver—

      Davis—exited the car and entered an apartment. Davis wore black Jordan 13

      sneakers with red soles. IMPD surveilled the apartment, and Davis eventually

      emerged and drove away in the green Bonneville. The police initiated a lawful

      traffic stop when Davis failed to use his turn signal. On or about September 12,

      2015, the police obtained a search warrant for the apartment. The search

      yielded a pair of red-soled black Jordan 13 sneakers, ammunition for a .380

      caliber handgun, and a blue shirt that resembled the shirt worn by the robber.

      On September 16, 2015, the State charged Davis with armed robbery, a Level 3

      felony; battery by means of a deadly weapon, a Level 5 felony; and carrying a

      handgun without a license, a Class A misdemeanor.




      4
       “AFIS is basically a computerized database that is full of fingerprints and palm[print]s. And [ ] it is a tool.
      We utilize it when we don’t have any other means of performing comparisons.” Tr. Vol. II pp. 27-28. AFIS
      “look[s] for the minutiae that [examiners] set [ ] when [ ] looking at the fingerprints” and generates “a list of
      candidates that we have to manually look at ourselves.” Id. at 29.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019                      Page 4 of 12
[7]   Three years later, the State filed a motion to fingerprint Davis on October 27,

      2018 and notified counsel for Davis that the State intended to analyze the palm

      print. The State requested that O’Neil compare the palm print to Davis’ prints

      from the AFIS database. O’Neil compared the palm print to Davis’ prints and

      concluded that, “in [her] opinion[,]” the palm print from the store “did belong

      to Jaquan Davis.” Tr. Vol. III p. 36. O’Neil did not compare the palm print to

      any other offenders’ prints because she “[di]d not expect to find th[e] [same]

      level of corresponding detail in another source[,]” because of the size and

      detailed minutiae present on the palm print, and because, based on her training

      and experience, no two people present identical friction ridge detail on their

      hands. Id. at 37.


[8]   On October 29, 2018, Davis filed a motion in limine, wherein Davis asserted

      that “the methodology and techniques used in latent print analysis” are not

      “based on reliable scientific principles[.]” Conf. App. Vol. II p. 177. In

      addition to arguing that latent print analysis was unreliable, Davis also argued

      that any opinion, “even if based on reliable principles,” would violate Evidence

      Rule 403. Id. at 178.


[9]   On November 21, 2018, the trial court conducted a hearing regarding, among

      other things, the admissibility of the palm print. Counsel for Davis objected to

      the palm print evidence on the ground that the State analyzed the palm print

      and identified it as Davis’ palm print three years after the palm print was

      collected and one week before Davis’ jury trial. See Tr. Vol. II p. 13. Defense



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019   Page 5 of 12
       counsel also advised the trial court that a scheduled deposition of O’Neil was

       cancelled due to defense counsel’s illness.


[10]   The State countered that “once the State became aware that there was a print

       that had not been compared to Mr. Davis’ prints, [the State] immediately

       notified Defense counsel, immediately requested that [the palm print] be

       examined by Ms. O’Neil, and then promptly turned over the identification

       report[.]” Id. at 14. Counsel for the State added that, although defense counsel

       was unable to conduct O’Neil’s deposition, defense counsel was

       “able to email Ms. O’Neil questions and receive responses [.]” Id. Over Davis’

       objection, the trial court found that the palm print was admissible, and that

       defense counsel had sufficient time to review the evidence.


[11]   Davis was tried by a jury on November 29, 2018. That morning, O’Neil took

       an inked palm print, comprised of mostly friction ridge skin, from Davis.

       During its case in chief, the State called O’Neil to testify. O’Neil testified at

       length regarding her training and her twenty-two years of experience with

       IMPD’s fingerprint identification unit and fourteen and one-half years of

       experience with the latent print unit. O’Neil testified further that IMPD’s latent

       print examiners each have a minimum of fourteen years of professional

       experience and follow the ACE-V 5 methodology—which is endorsed by the

       International Association for Identification as the accepted standard




       5
           “ACE-V” stands for “Analysis, Comparison, Evaluation, and Verification.” Tr. Vol. III p. 21.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019                    Page 6 of 12
       methodology for performing fingerprint comparisons. O’Neil testified that, in

       her role as a latent print examiner, she “perform[s] . . . analysis, comparison,

       evaluation and verification on any friction ridge detail that [comes] to [IMPD]

       on latent cards or digital photographs that are recovered from crime scene[s.]”

       Id. at 18.


[12]   Regarding the ACE-V methodology, O’Neil testified further:


               Q: Okay. Now, let’s talk about the process in comparing that
               latent print to known prints or exemplars. What is the procedure
               that you follow?


               A: We follow the ACE-V Methodology. ACE-V stands for
               Analysis, Comparison, Evaluation, and Verification.


               Basically during the Analysis part, [ ] we [ ] receive the evidence
               and we examine it to determine whether or not there’s any
               friction ridge detail present on that evidence. We’re also looking
               at the quality to try to make a determination as to whether or not
               we can make a comparison. If we believe we can make a
               comparison, then we move to the comparison stage and we place
               the unknown latent print next to a known exemplar under
               magnification and we look at the unique identification
               characteristics as well as the unit relationship between those
               characteristics.


               While we’re doing that, we move to the evaluation stage which is
               where we form an opinion as to whether or not we believe there
               were dissimilarities which would invoke an exclusion or if we
               found enough [ ] correspondence between the minutiae to make
               an identification.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019   Page 7 of 12
                                                        *****


                A. And then we move to the verification stage. Once we form
                our opinions as to whether or not we believe there was an
                identification or an exclusion, then we move to the verification
                stage. And that’s where we hand our entire case over to another
                co-worker or a supervisor who re-works it to make sure they
                come to the same conclusion.


       See Tr. Vol. II pp. 21-22. O’Neil testified further that, in Davis’ case, she: (1)

       received a request from the prosecutor to compare the palm print to Davis’

       prints; (2) conducted the analysis “with ACE-V”; and (3) concluded that the

       latent palm print matched Davis’ prints because of “an overwhelming amount

       of minutiae [ ] that [O’Neil] would not expect to find repeated in another

       source.” 6 Id. at 49.


[13]   When the State asked O’Neil to opine on the source of the palm print, after

       O’Neil compared the palm print to Davis’ prints, defense counsel objected as

       follows: “Judge, at this point I’m going to object to this witness testifying to the

       print matching my client under Rule 702 and [based upon] the prior hearing




       6
         O’Neil testified further that AFIS likely did not identify Davis as a potential source of the palm print
       because the palm print from the crime scene included more friction ridge skin than Davis’ AFIS palm print,
       which included “more of the smooth skin [of his palm].” Id. at 53. During O’Neil’s testimony, counsel for
       Davis moved to exclude anticipated State’s Exhibit 2 and stated, “So we would just like to note for the record
       that this document which will be admitted during the hearing, this is the very first time Defense has seen it.”
       Tr. Vol. II p. 54. Counsel for the State replied that State’s Exhibit 2 was generated “in preparation for [the]
       hearing[,]” the State and O’Neil generated State’s Exhibit 2 to answer [ ] why perhaps Mr. Davis’ print did
       not appear [ ] as an AFIS candidate.” Id. The trial court admitted Exhibit 2 over defense counsel’s
       objections.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019                   Page 8 of 12
       that we had on this matter.” Tr. Vol. II p. 33. The trial court overruled the

       objection and incorporated its earlier findings. O’Neil then testified, “In my

       opinion, the latent print that was left on [ ] the entry door inside was made by

       Mr. Jaquan Davis, specifically[,] his writer’s palm.” 7 Id. at 34.


[14]   At the close of the evidence, the jury convicted Davis on all counts. At Davis’

       sentencing hearing on January 11, 2019, the trial court sentenced him to eleven

       years for armed robbery, a Level 3 felony, and three years for battery by means

       of a deadly weapon, a Level 5 felony, with the sentences to be served

       concurrently. 8 Davis now appeals.


                                                        Analysis
[15]   Davis argues that the trial court abused its discretion in admitting O’Neil’s

       identification because O’Neil failed to: (1) “explain[ ] the basis for her

       conclusions”; and (2) “show[ ] if or how the ACE-V method was reliably

       applied[.]” Davis’ Br. p. 27. The State counters that this issue is waived

       because Davis is making a different argument on appeal than he made at trial.


[16]   Davis objected below to O’Neil’s identification on the ground that the ACE-V

       methodology is not based on reliable scientific principles. On appeal, Davis

       implicitly accepts the validity of ACE-V and asserts that O’Neil failed to “show

       [ ] if or how the ACE-V method was reliably applied[.]” Davis’ Br. p. 27. We



       7
           The “writer’s palm” is the side of the hand that makes contact with paper when a writer writes.
       8
           Davis’ conviction for carrying a handgun without a license was vacated on double jeopardy grounds.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019                       Page 9 of 12
       agree with the State that this issue is waived. See Pigg v. State, 929 N.E.2d 799,

       803 (Ind. Ct. App 2010) (claims are generally waived if raised for the first time

       on appeal), trans. denied.


[17]   Waiver notwithstanding, we address the merits of Davis’ argument that the trial

       court abused its discretion when it admitted O’Neil’s identification of Davis as

       the source of the palm print. Absent an abuse of discretion, we will not disturb

       a trial court’s determination that a witness is qualified to testify as an expert and

       render an expert opinion. Ross v. State, 665 N.E.2d 599 (Ind. Ct. App. 1996).

       An abuse of discretion occurs if the trial court’s decision is clearly against the

       logic and effect of the facts and circumstances before the court, or the

       reasonable, probable, and actual deductions to be drawn therefrom. Id.


[18]   Indiana Evidence Rule 702 provides:


               (a) A witness who is qualified as an expert by knowledge, skill,
               experience, training, or education may testify in the form of an
               opinion or otherwise if the expert’s scientific, technical, or other
               specialized knowledge will help the trier of fact to understand the
               evidence or to determine a fact in issue.


               (b) Expert scientific testimony is admissible only if the court is
               satisfied that the expert testimony rests upon reliable scientific
               principles.


[19]   In Burnett v. State, 815 N.E.2d 201, 209 (Ind. Ct. App. 2004), we held:


               ACE-V methodology is generally accepted by the [International
               Association for Identification], an international organization in
               the field. [[ ] [Fingerprint experts in several different states,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019   Page 10 of 12
               including Indiana, Ohio, Illinois, and Michigan, use the ACE-V
               method for fingerprint identification. Thus, the State established
               that the ACE-V methodology is generally accepted within [the
               latent fingerprint examiner-expert]’s relevant field of study and
               that it is more likely than not that the scientific principles upon
               which the testimony rests are reliable.


       Burnett v. State, 815 N.E.2d 201, 209 (Ind. Ct. App. 2004). Thus, Davis’ claim

       that ACE-V methodology is not based on reliable scientific principles fails.


[20]   Moreover, O’Neil testified regarding: (1) her extensive professional training and

       experience; (2) IMPD’s policy of training its print examiners to employ the

       ACE-V methodology; (3) the detailed steps of the ACE-V analytical process;

       and (4) O’Neil’s utilization of the ACE-V methodology when she identified

       Davis as the source of the palm print. Based on the foregoing, the trial court

       did not abuse its discretion by admitting O’Neil’s expert testimony pursuant to

       Rule 702. See Bond v. State, 925 N.E.2d 773, 781-82 (Ind. Ct. App. 2010)

       (“[Examiner] explained the steps involved in the ACE-V methodology and

       testified that she used ACE-V[.] [ ] In light of [examiner’s] testimony—along

       with the established reliability of the ACE-V protocol and [examiner’s]

       qualifications as an expert witness—we cannot say that the trial court erred by

       finding that the ACE-V method was applied and that [examiner’s] opinion was

       admissible under Rule 702.”).


[21]   Moreover, the State presented extensive evidence regarding O’Neil’s

       application of ACE-V methodology and techniques. Counsel for Davis cross-

       examined O’Neil at length. Indiana does not require a specific “‘test’ or set of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019   Page 11 of 12
       ‘prongs’ which must be considered in order to satisfy Indiana Evidence Rule

       702(b).” See Alcantar v. State, 70 N.E.3d 353, 359 (Ind. Ct. App. 2016) (quoting

       McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997)). We, thus, find the dispute

       here goes to the weight attributed to the ACE-V methodology and the

       conclusions that O’Neil reached in reliance on ACE-V, and not to the

       admissibility of O’Neil’s testimony as to ACE-V. See Alcantar, 70 N.E.3d at

       359.


                                                 Conclusion
[22]   The trial court did not abuse its discretion in admitting O’Neil’s identification

       of Davis as the source of the palm print pursuant to Indiana Evidence Rule 702.

       We affirm.


[23]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-333 | December 4, 2019   Page 12 of 12
