MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before                                      Jul 29 2019, 8:42 am
any court except for the purpose of                                             CLERK
establishing the defense of res judicata,                                   Indiana Supreme Court
                                                                               Court of Appeals
collateral estoppel, or the law of the                                           and Tax Court

case.


ATTORNEY FOR APPELLANT                                ATTORNEYS FOR APPELLEE
Mark K. Leeman                                        Curtis T. Hill, Jr.
Leeman Law Office and                                 Attorney General of Indiana
Pulaski County Public Defender                        Jesse R. Drum
Logansport, Indiana                                   Supervising Deputy Attorney General
                                                      Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Brown,                                        July 29, 2019
Appellant-Defendant,                                  Court of Appeals Case No.
                                                      18A-CR-2545
        v.                                            Appeal from the Pulaski Circuit
                                                      Court
State of Indiana,                                     The Honorable Michael A. Shurn,
Appellee-Plaintiff.                                   Judge
                                                      Trial Court Cause No.
                                                      66C01-1610-F4-8



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2545 | July 29, 2019                       Page 1 of 11
[1]   Richard Brown appeals his convictions for dealing in a narcotic drug as level 4

      felonies. He raises one issue which we revise and restate as whether the trial

      court abused its discretion in admitting certain evidence. We affirm.

                                      Facts and Procedural History

[2]   On two days in 2016, April 29th and May 27th, Brown sold Oxymorphone to

      D.R. (the “CI”), who was working as a confidential informant for the Indiana

      State Police. The CI used a “key fob for audio and video” to record the

      transactions. Transcript Volume 2 at 185.


[3]   On October 27, 2016, the State charged Brown with two counts of dealing in a

      narcotic drug as level 4 felonies and two counts of possession of a narcotic drug

      as level 6 felonies. At Brown’s jury trial, the State presented the testimony of

      the CI, law enforcement who worked with the CI, and Indiana State Police

      Sergeant Jeremy Chapman, who was an audio-visual technician in the

      cybercrime unit. Following the presentation of the CI’s testimony and a recess,

      the court noted that the State wished to introduce an audio recording and the

      testimony of the officer who attempted to enhance the sound on that recording.

      Brown’s counsel indicated the State had produced an exhibit that was the result

      of the application of a filter to an audio recording and argued that the process of

      applying the filter was an unreliable process, not peer reviewed, and not based

      on sound scientific principles and that the witness cannot explain the scientific

      principles upon which the procedure was based. The prosecutor stated that, in

      addition to scientific knowledge, a person can qualify as an expert based upon

      technical skills or specialized knowledge. He argued that the individual had

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2545 | July 29, 2019   Page 2 of 11
      been working with video and audio enhancements for the last five years, that

      this is a technical application of regularly accepted software used in the

      industry, and that, like with a breathalyzer, he did not have to understand the

      scientific principles behind how it works but did have to understand how to

      perform and use it which is what his testimony would establish.

[4]   Sergeant Chapman testified as to his training and work in digital forensics and

      audio-visual enhancement. He testified that he used Adobe Audition and filters

      purchased separately from Salient Sciences as a plug-in for the software. When

      asked what steps he took to become familiar with the software, he testified that

      he attended a vendor-based forty-hour class covering how to employ the filters.

      When asked how the filters work in general, he testified “[y]ou insert the - you

      import the original video file, and then you can apply the filters to compensate

      for - to employ them against noises or outline things in - within the audio to try

      and reduce things to make what you’re after sound better,” and when asked

      “[a]nd sounding better is judged,” he said “[s]ubjectively by whether or not you

      can hear it or not hear it.” Transcript Volume III at 57. He testified the

      software allowed him “to reduce specific frequencies around other frequencies.”

      Id. at 58. When asked “you’re not taking words out,” he replied “[r]ight.” Id.

      at 59. He stated “[s]o if I’m editing this file it’s going to be changed, but

      hopefully I’m eliminating it in a way that changes it so it’s better to be heard . . .

      [o]r certain portions are better to be heard.” Id. He testified that, within

      Audition, he used a dropdown menu to apply two filters, a high-pass filter

      designed primarily to reduce low frequencies such as a rumble, an engine noise,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2545 | July 29, 2019   Page 3 of 11
      or other low, non-conversational sound, and an inverse filter addressing sounds

      outside of the loudest portions such as a conversation. He indicated that, by

      applying the filters, words become clearer because other noise is removed. He

      indicated that he had not gone to school to learn the scientific principles behind

      the equipment and that his job was to learn the software which is used in the

      industry and to apply and use it correctly to enhance quality. The State

      introduced exhibits of recordings related to the April 29th buy.

[5]   On cross-examination, when asked if he was familiar with the scientific

      principles behind the filter process, Sergeant Chapman testified “I’m not

      familiar,” “I understand how and what the software is doing,” and “I don’t

      know the algorithms and stuff used to develop, and the means behind the

      software development.” Id. at 70. When asked in how many cases he had

      applied filters to audio, he replied “[s]ix to a dozen” but did not have a count,

      and he indicated he had not previously testified in court regarding the use of the

      filters. Id. at 71. When asked “although you listened to the first one you didn’t

      actually listen all the way through to the second one after you applied the

      filters,” he replied “I’ve listened to both of them in different lengths and

      different variations” and “I didn’t need to know the whole conversation, I just

      wanted to make it sound better.” Id. at 73. When asked “the problem is that

      when you cut into some, that you might cut into the conversation,” he replied

      “[t]here’s the potential, yes” and testified “[w]herever that - where the sounds

      lays in the frequency. If you dip into that frequency you’re going to remove the

      sound from the vowels and consonants of the conversation, perhaps.” Id.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2545 | July 29, 2019   Page 4 of 11
      When asked “[y]ou can’t say for sure, and how much of the conversation that’s

      on this audio was affected by the filters that you applied,” he answered

      “[e]xactly, yeah.” Id. at 74. On redirect, when asked “[c]an you say that even

      applying the filters you do not remove, or add any of the words that are in the

      conversations,” Sergeant Chapman answered “[c]orrect,” and when asked “the

      whole purposes of applying this, is to assist the people who have to listen to it,

      so that they can hear it better,” he again replied affirmatively. Id. at 83. On

      recross-examination, when asked “you didn’t alter the words and replace one

      with the other, but you took out the sounds that formed the words, sometimes,”

      Sergeant Chapman replied “[t]he potential is always there. But . . . I try to

      reduce it so that the application falls below the range of auditory. Because you

      don’t want to remove auditory, because that just makes it sound worse” and “I

      want to make it sound better, so I stayed - I tried to stay away from dipping

      into the consonants and the vowels.” Id. at 84-85. When asked “[b]ut you may

      have dipped into the consonants and the vowels,” he replied “[i]t may have, but

      not enough to change the work.” Id. at 85.

[6]   In the presence of the jury, the prosecutor elicited testimony from Sergeant

      Chapman regarding his work as an audio-visual technician, the process of

      applying filters to audio recordings and the software he used, and the audio

      recording to which he applied two filters. Brown asked to approach, and the

      court stated in part “[h]e is a technician,” “he is not an expert on sound,”

      “[h]e’s simply qualified as the person who knows how to run it,” and “he’s

      certainly qualified to run the machine and deal with the spectrums of sound.”


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2545 | July 29, 2019   Page 5 of 11
      Id. at 109. The State later moved to admit the recording to which the filters had

      been applied, and Brown objected and argued that “the scientific procedure that

      was used to enhance those is not a valid procedure under Indiana law.” Id. at

      192. The court admitted the recording. The jury found Brown guilty as

      charged. The court vacated the possession counts and sentenced him to

      concurrent sentences of seven years including two years on home detention on

      his dealing convictions.

                                                   Discussion

[7]   The admission of evidence falls within the sound discretion of the trial court.

      Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion

      occurs when the trial court’s ruling is clearly against the logic, facts, and

      circumstances presented. Oatts v. State, 899 N.E.2d 714, 719 (Ind. Ct. App.

      2009). We will not reverse an error in the admission of evidence if the error

      was harmless. Turner v. State, 953 N.E.2d 1039, 1058 (Ind. 2011).


[8]   Brown argues that the process used by Sergeant Chapman is unreliable and

      cites Ind. Evidence Rule 702(b). He argues that Sergeant Chapman had used

      the process only six to twelve times, admitted the process could affect some of

      the conversational portions of the recording, and did not review the entire

      recording following application of the filters. He asserts that Sergeant

      Chapman’s “process was pseudoscience conjecture.” Appellant’s Brief at 14.

      He argues Sergeant Chapman could not explain the scientific process behind

      the filters. The State maintains that the court did not abuse its discretion in

      admitting the recording and that Evidence Rule 702(b) is inapplicable. It argues

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2545 | July 29, 2019   Page 6 of 11
       that, similar to the detective in Taylor v. State, 101 N.E.3d 865 (Ind. Ct. App.

       2018), reh’g denied, Sergeant Chapman applied technical expertise and training

       and did not apply scientific principles. It further argues that any error in

       admitting the challenged recording was harmless. In reply, Brown argues that

       the detective in Taylor merely extracted data whereas Sergeant Chapman used a

       complex system to alter an audio recording. He also argues that an average

       juror would likely be swayed by the recording.


[9]    Ind. 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.

       In adopting the rule, the Indiana Supreme Court did not intend to interpose an

       unnecessarily burdensome procedure for trial courts to apply when considering

       the admissibility of expert testimony. Taylor, 101 N.E.3d at 870 (citing Sears

       Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind. 2001)). “Rather, the rule

       was meant ‘to liberalize, rather than to constrict, the admission of reliable

       scientific evidence.’” Id. (citing Sears Roebuck, 742 N.E.2d at 460).


[10]   In Taylor, we observed that the “specialized knowledge” mentioned in Evidence

       Rule 702(a) includes more than just scientific knowledge, and if knowledge is


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2545 | July 29, 2019   Page 7 of 11
       not “scientific,” it need not be proven reliable by means of “scientific

       principles” under Evidence Rule 702(b). Id. at 871 (citing Lyons v. State, 976

       N.E.2d 137, 142 (Ind. Ct. App. 2012) (citing Malinski v. State, 794 N.E.2d 1071,

       1084 (Ind. 2003))). “Rather, such evidence is governed only by the

       requirements of Rule 702(a), and any weaknesses or problems in the testimony

       go only to the weight of the testimony, not to its admissibility, and should be

       exposed through cross-examination and the presentation of contrary evidence.”

       Id. (citing Lyons, 976 N.E.2d at 142 (citing Turner v. State, 953 N.E.2d 1039,

       1050 (Ind. 2011))).


[11]   The detective in Taylor testified regarding his training in cell phone forensics

       which included forty hours with respect to a “Chip-Off” technique, a cell phone

       data recovery method which had been in common use since 2014 or 2015, had

       been the subject of empirical studies and peer review, and for which guidelines

       had been established by a part of the Department of Commerce. Id. at 870.

       The technique involved de-soldering and removing a phone’s memory chip

       from the phone’s circuit board, primarily by heating the board until the solder

       and epoxy connecting the chip to the board loosened, and then placing the

       memory chip into a standalone memory chip reader and retrieving the data

       from the chip. Id. at 869. The detective had used the method seventy-one

       times and successfully recovered data on sixty-one of those occasions, and he

       was unaware of any case in which the method could result in the alteration of

       data as opposed to damaging or deleting the data. Id. at 870-871.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2545 | July 29, 2019   Page 8 of 11
[12]   Taylor argued that the detective’s testimony was too vague and conclusory with

       respect to the degree of scientific acceptance of the method and that he could

       not provide details on peer review and publication regarding the method. Id. at

       871. We observed that Taylor’s argument presupposed that the detective was

       presenting “scientific” evidence. Id. We held:


               We agree with the State that [the detective’s] expertise and
               testimony was not “scientific” in nature. Rather, it would more
               correctly be called “technical” or “specialized” knowledge. This
               court has identified mechanical engineering as “technical,” not
               “scientific,” knowledge. O’Banion v. Ford Motor Co., 43 N.E.3d
               635, 643 (Ind. Ct. App. 2015), trans. denied. The processes by
               which [the detective] can recover data from cell phones is more
               akin to engineering than science. [The detective] was not
               testifying about the quantum physics principles behind
               smartphone technology.

               As another court has put it:

                        Forensic investigation increasingly requires the use of
                        computer software or other technological devices for the
                        extraction of data. While an investigator must have
                        specialized knowledge in the use of the particular software
                        or device, it is not required—nor is it practical—for an
                        investigator to have expertise in or knowledge about the
                        underlying programming, mathematical formulas, or other
                        innerworkings of the software.

               State v. Pratt, 200 Vt. 64, 128 A.3d 883, 891-892 (2015). In Pratt,
               similar to here, the defendant had challenged the admissibility of
               a forensic technician’s recovery of data from the defendant’s cell
               phone on the basis that the technician’s testimony regarding the
               scientific reliability of the recovery method was too conclusory
               and that he lacked knowledge of such things as the error rate of
               the program he used to recover the data. The Pratt court rejected

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2545 | July 29, 2019   Page 9 of 11
               this argument, noting in part, “The forensic expert’s testimony is
               not about basic scientific principles, and he is not drawing
               inferences from the facts. He merely is explaining how he
               extracted the data from the cell phone and how he read that
               data—specialized knowledge that he acquired through his
               training and experience.” Id. at 893. We reach the same
               conclusion here regarding [the detective’s] testimony. The trial
               court did not abuse its discretion in admitting this evidence.

       Id.

[13]   Sergeant Chapman testified regarding his training in audio forensics, his

       familiarity with the software he used, and the steps he took to apply two filters

       to reduce noise or sounds so that the recorded conversation was easier to hear.

       He testified that he did not eliminate any words from the recordings. He also

       stated that, although he had not learned the scientific principles behind the

       equipment and did not “know the algorithms . . . used to develop . . . the

       software,” he understood “what the software is doing” and that his job was to

       understand the software used in his industry and to use it correctly. Transcript

       Volume III at 70. Sergeant Chapman’s expertise and testimony may be

       characterized as technical or specialized knowledge. While he may not have

       had knowledge of the underlying programming or innerworkings of the

       software, he had been trained and knew how to use the software. He did not

       draw inferences from facts, but used his specialized knowledge acquired

       through his training and experience to use software to filter noise and other

       sounds from an audio recording so that the voices could be heard more clearly.

       We find that any error in admission of the challenged evidence is harmless.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2545 | July 29, 2019   Page 10 of 11
[14]   Errors in the admission of evidence are to be disregarded as harmless error

       unless they affect the substantial rights of the party. Lewis v. State, 34 N.E.3d

       240, 248 (Ind. 2015). To determine whether an error in the introduction of

       evidence affected the party’s substantial rights, we assess the probable impact of

       that evidence upon the jury. Id. The jury in this case heard extensive testimony

       from the CI and law enforcement who assisted with the controlled buys. The

       jury heard testimony from a number of officers regarding their participation in

       monitoring the controlled buys including providing and recording the buy

       money, searching the CI to ensure that he did not have any illegal substances

       prior to the buys, setting up surveillance to follow the CI, and retrieving

       purchased pills from the CI. We cannot say that the introduction of the

       challenged evidence affected Brown’s substantial rights. See Johnson v. State,

       699 N.E.2d 746, 749 (Ind. Ct. App. 1998) (holding that the error in admitting a

       recording was harmless as it was cumulative of prior testimony).


[15]   For the foregoing reasons, we affirm Brown’s convictions.


[16]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2545 | July 29, 2019   Page 11 of 11
