                                                                             FILED
                                                                        May 04 2018, 9:51 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Frederick Vaiana                                          Curtis T. Hill, Jr.
Voyles Vaiana Lukemeyer Baldwin &                         Attorney General of Indiana
Webb
Indianapolis, Indiana                                     Caroline G. Templeton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andre Taylor, a/k/a                                       May 4, 2018
Robert Davidson,                                          Court of Appeals Case No.
Appellant-Defendant,                                      49A04-1708-CR-1930
                                                          Appeal from the Marion Superior
        v.                                                Court
                                                          The Honorable James Osborn,
State of Indiana,                                         Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          49G02-1501-F2-1210



Barnes, Judge.




Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018                            Page 1 of 15
                                                 Case Summary
[1]   Andre Taylor, a/k/a Robert Davidson,1 appeals his convictions for Level 2

      felony burglary, Level 3 felony armed robbery, two counts of Level 3 felony

      criminal confinement, and the finding that he is an habitual offender. We

      affirm in part, reverse in part, and remand.


                                                         Issues
[2]   The issues before us are:


               I.       whether the trial court properly admitted evidence
                        recovered from Taylor’s cell phone; and


               II.      whether his multiple convictions violate double jeopardy
                        principles.


                                                         Facts
[3]   In the early morning hours of January 10, 2015, Victor Villalobos was at his

      home in Indianapolis packing items to send to his family in Mexico.

      Villalobos’s housemate Julian Altatenco also was there. Villalobos and

      Altatenco heard loud banging on the front and back doors. Villalobos looked

      through a window onto his front porch and saw a man with a gun. At that




      1
        When arrested, the appellant told police his name was “Robert Davidson,” but police soon learned that his
      true name is Andre Taylor. He does not dispute this fact, although most of the filings in this case at trial and
      on appeal, including the CCS and appellate docket, have listed the appellant’s primary name as “Robert
      Davidson.” However, two weeks after the initial charging in this case, the trial court granted the State’s
      motion to amend the charging information to list the name as Andre Taylor a/k/a Robert Davidson. In this
      opinion, we will use Taylor’s undisputed legal name throughout.

      Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018                               Page 2 of 15
      point Villalobos attempted to call 911 but was unable to complete the call

      before two men broke in through the back door, two men broke in through the

      front door, and one of them took his cell phone. At least two of the men were

      armed with guns, and they all were wearing masks. Two of the men forced

      Villalobos into a bedroom, and the other two men forced Altatenco into

      another room. The men attempted to tie Villalobos’s and Altatenco’s hands

      with zip ties, repeatedly punched them both, and demanded money from

      Villalobos. At first, Villalobos said he had no money. However, after one of

      the men pointed a gun at Villalobos’s head and threatened to kill him,

      Villalobos told them there was $150 on a table, which one of the men took.


[4]   One of Villalobos’s neighbors called 911 and reported several men breaking into

      his residence. Indianapolis Metropolitan Police Officers Kevin Larussa,

      Michael Beatty, and Shiela McNeal responded to the call. When arriving on

      the scene, Officer Larussa saw a masked man dressed in black looking at him

      from the front window of Villalobos’s house. The officers then heard someone

      yell “police,” followed by running in the house. Officers Larussa and Beatty

      ran into the front of the house and saw two black men, one dressed in gray and

      the other in black, running out the back door. The man in black managed to

      scale a fence and run away. After that, a shot was fired toward Officer Larussa.

      Officer Larussa turned toward where the shot came from and saw the man in

      gray pointing a gun at him. Officer Larussa returned fire multiple times and hit

      the man in the leg. When the officers arrested the man, he gave his name as

      Robert Davidson rather than his actual name, Andre Taylor. The other three


      Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018    Page 3 of 15
      men involved in the burglary and robbery were Donte Jones, Dariel Dodd, and

      Quincy Stamps.


[5]   Later that same day while searching the scene, officers found a cell phone in

      Villalobos’s backyard, which was determined to belong to Jones. When Taylor

      was taken to the hospital for treatment of his gunshot wound, police seized his

      phone. A technician was able to determine that between January 8-10, 2015,

      there were thirty-six calls and six texts between these two phones. However,

      because there was a passcode lock on Taylor’s phone, the technician was

      unable to access the content of any texts or data on the phone.


[6]   A different technician, Detective Grant Melton, had received training in a

      method of acquiring data from a phone with a passcode that cannot be

      decoded. The technique, called “Chip-Off,” involves first 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

      loosens. A technician can then place the memory chip into a standalone

      memory chip reader and retrieve the data from the chip. After performing the

      “Chip-Off” procedure on Taylor’s phone, Detective Melton was able to read six

      text messages sent between Taylor and Jones between 9:55 and 10:05 p.m. on

      January 9, 2015. The texts were not highly revealing. Taylor first texted Jones,

      “You good bro,” to which Jones responded, “Yup coming out n a min.” Ex.

      155. Taylor then wrote, “I think the boys out here,” and Jones wrote, “Here I

      come.” Id. Taylor replied, “K,” followed several minutes later by “B***h

      come on.” Id.

      Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018   Page 4 of 15
[7]   The State charged Taylor with Level 2 felony burglary, Level 3 felony armed

      robbery, two counts of Level 3 felony criminal confinement, Level 4 felony

      unlawful possession of a firearm by a serious violent felon, and Level 5 felony

      attempted battery with a deadly weapon. The State also alleged that Taylor was

      an habitual offender. Before trial, Taylor filed a motion in limine to exclude

      evidence related to Detective Melton’s examination of his cell phone, asserting

      that the “Chip-Off” investigation method was not established as reliable. The

      trial court denied this motion.


[8]   A bifurcated jury trial was held on June 26-28, 2017. At the conclusion of the

      first part of trial, the jury found Taylor guilty of Level 2 felony burglary, Level 3

      felony armed robbery, and two counts of Level 3 felony criminal confinement,

      but found him not guilty of attempted battery with a deadly weapon. Taylor

      then pled guilty to the habitual offender enhancement and, in exchange, the

      State dismissed the serious violent felon charge. The trial court entered

      judgments of convictions and sentences for all of the guilty findings and

      imposed an habitual offender sentence enhancement. Taylor now appeals.


                                                   Analysis
                                         I. Admission of Evidence

[9]   Taylor first contends the trial court erred in allowing Detective Melton to testify

      as to what he was able to recover from Taylor’s phone by using the “Chip-Off”

      forensic technique. We will reverse a conviction based on an evidentiary ruling

      only if there has been an abuse of discretion resulting in prejudicial error.


      Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018      Page 5 of 15
       Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). “A trial court abuses its

       discretion when its ruling is either clearly against the logic and effect of the facts

       and circumstances before the court, or when the court misinterprets the law.”

       Id.


[10]   Taylor specifically argues that Detective Melton failed to meet the standard for

       the admission of expert scientific testimony under Indiana Evidence Rule 702.

       That rule 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 this rule, our supreme court did not intend to interpose an

       unnecessarily burdensome procedure or methodology for trial courts to apply

       when considering the admissibility of expert testimony. 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.


[11]   The proponent of expert scientific testimony bears the burden of establishing

       the foundation and reliability of the scientific principles underpinning such


       Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018        Page 6 of 15
       testimony pursuant to Evidence Rule 702(b). Sciaraffa v. State, 28 N.E.3d 351,

       357 (Ind. Ct. App. 2015), trans. denied. Reliability may be established by

       judicial notice or by sufficient foundation to convince the court that the relevant

       scientific principles are reliable. Id. In determining reliability, courts may

       consider the following nonexclusive factors: (1) whether the technique has been

       or can be empirically tested; (2) whether the technique has been subjected to

       peer review and publication; (3) the known or potential rate of error as well as

       the existence and maintenance of standards controlling the technique’s

       operation; and (4) general acceptance within the relevant scientific community.

       Barnhart v. State, 15 N.E.3d 138, 144 (Ind. Ct. App. 2014).


[12]   Here, Detective Melton testified regarding his extensive training in the field of

       cell phone forensics, which included 700 hours generally and forty hours

       specifically with respect to the “Chip-Off” technique. That technique has been

       in common use in the forensics community since 2014 or 2015 and has been the

       subject of empirical studies and peer review. The National Institute of

       Standards and Technology—part of the United States Department of

       Commerce—has established guidelines regarding use of the technique and other

       cell phone data recovery methods, as has an organization called the Scientific

       Working Group on Digital Evidence. Detective Melton has personally

       recovered data from approximately 800 cell phones and has used the “Chip-

       Off” method seventy-one times. He successfully recovered data on sixty-one of

       those occasions; the reasons he was not able to in the other ten cases were

       because the data was encrypted and “Chip-Off” cannot decrypt data or because


       Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018      Page 7 of 15
       the chip was damaged during the process of de-soldering and removal from the

       phone. Detective Melton was unaware of any case in which “Chip-Off” could

       result in the alteration of data on a phone memory chip as opposed to damaging

       or deleting such data.


[13]   Despite this evidence, Taylor claims Detective Melton’s foundational testimony

       was too vague and conclusory with respect to the degree of scientific acceptance

       of the “Chip-Off” method and that he likewise could not provide details on peer

       review and publication regarding the method. However, Taylor’s argument

       presupposes that Detective Melton was presenting “scientific” evidence. The

       “specialized knowledge” mentioned in Evidence Rule 702(a) includes more

       than just scientific knowledge, and if knowledge is not “scientific,” it need not

       be proven reliable by means of “scientific principles” under Evidence Rule

       702(b). 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 Turner v. State, 953 N.E.2d 1039,

       1050 (Ind. 2011)).


[14]   We agree with the State that Detective Melton’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

       Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018     Page 8 of 15
       N.E.3d 635, 643 (Ind. Ct. App. 2015), trans. denied. The processes by which

       Detective Melton can recover data from cell phones is more akin to engineering

       than science. Detective Melton was not testifying about the quantum physics

       principles behind smartphone technology.


[15]   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, 128 A.3d 883, 891-92 (Vt. 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 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




       Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018      Page 9 of 15
       Detective Melton’s testimony. The trial court did not abuse its discretion in

       admitting this evidence.


[16]   Furthermore, even if the evidence Detective Melton presented related to the

       “Chip-Off” method was erroneously admitted, any such error was harmless. In

       assessing whether an evidentiary error prejudiced a defendant, we consider the

       probable impact of the evidence on the jury in light of all the other properly-

       presented evidence. Williams, 43 N.E.3d at 581. “If the conviction is properly

       supported by other independent evidence of guilt, the error is harmless.” Id.


[17]   The most compelling evidence against Taylor was his apprehension in

       Villalobos’s backyard immediately after the burglary and robbery, when he was

       shot by Officer Larussa after first shooting at the officer. The fact that there was

       ongoing, frequent communication between Taylor’s phone and Jones’s phone

       was established by evidence other than that acquired by the “Chip-Off”

       method. The “Chip-Off” method did reveal the contents of several texts

       between Taylor and Jones a few hours before the burglary, but there is no

       mention of any criminal activity in those texts. In sum, the additional evidence

       Detective Melton said he recovered from Taylor’s phone was not very impactful

       in light of all the other evidence in this case and would have been harmless if it

       were erroneously admitted.


                                             II. Double Jeopardy

[18]   Taylor also contends that his convictions for Level 3 felony armed robbery and

       two counts of Level 3 felony criminal confinement must be vacated because of


       Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018    Page 10 of 15
       double jeopardy concerns and that only his conviction for Level 2 felony

       burglary may stand. Article 1, Section 14 of the Indiana Constitution provides,

       “No person shall be put in jeopardy twice for the same offense.” Two or more

       offenses are the “same offense” in violation of the Indiana Double Jeopardy

       Clause if, “‘with respect to either the statutory elements of the challenged

       crimes or the actual evidence used to convict, the essential elements of one

       challenged offense also establish the essential elements of another challenged

       offense.’” Sistrunk v. State, 36 N.E.3d 1051, 1053 (Ind. 2015) (quoting

       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). The Richardson “actual

       evidence” test is not violated if the evidentiary facts used to establish the

       essential elements of one offense establish only one or even several, but not all,

       of the essential elements of a second offense. Spivey v. State, 761 N.E.2d 831,

       833 (Ind. 2002).


[19]   In addition to the constitutional test prescribed by Richardson, Indiana courts

       adhere to rules of statutory construction and common law that prohibit multiple

       convictions, as delineated in Justice Sullivan’s concurring opinion in

       Richardson. Sistrunk, 36 N.E.3d at 1053-54. One of those rules prohibits

       “[c]onviction and punishment for a crime which consists of the very same act as

       an element of another crime for which the defendant has been convicted and

       punished.” Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring). An

       example of that rule’s application is Wethington v. State, 560 N.E.2d 496, 508

       (Ind. 1990), in which our supreme court vacated a confinement conviction




       Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018      Page 11 of 15
       because the confinement was coextensive with the behavior or harm necessary

       to establish an element of the defendant’s robbery conviction. Id.


[20]   Taylor first argues that he cannot be convicted of both burglary and robbery, the

       underlying felony he intended to commit when he broke and entered into

       Villalobos’s home. However, Indiana courts have consistently held that double

       jeopardy principles do not prohibit convictions for both burglary and the felony

       the defendant intended to commit when breaking and entering. “[T]he criminal

       transgression of burglary is committed by a person intending to commit an

       underlying felony at the moment the building or structure is broken into and

       entered. The person’s culpability is established at the point of entry regardless

       of whether the underlying intended felony is ever completed.” Swaynie v. State,

       762 N.E.2d 112, 114 (Ind. 2002). See also Lee v. State, 892 N.E.2d 1231, 1236-37

       (Ind. 2008) (holding convictions for both burglary and attempted armed robbery

       did not constitute double jeopardy); Pierce v. State, 761 N.E.2d 826, 830 (Ind.

       2002) (“The taking of money supports the robbery and the breaking and

       entering supports the burglary, but neither is an element of the other crime.”);

       Bunch v. State, 937 N.E.2d 839, 846 (Ind. Ct. App. 2010) (affirming convictions

       for both burglary and robbery “[b]ecause the burglary was complete before the

       robbery began”), trans. denied. Under this clear precedent, we find no double




       Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018    Page 12 of 15
       jeopardy concern with Taylor’s convictions for both Level 2 felony burglary and

       Level 3 felony armed robbery.2


[21]   With respect to Taylor’s convictions for criminal confinement, we do agree that

       they must be vacated. As noted, a confinement conviction may not stand if a

       defendant was convicted of a second offense that inherently required

       confinement of the victim and the confinement was no more extensive than

       necessary to carry out the other offense. Wethington, 560 N.E.2d at 508. See

       also Vanzandt v. State, 731 N.E.2d 450, 455 (Ind. Ct. App. 2000) (vacating

       confinement conviction where defendant also was convicted of robbery, which

       was effected by ordering victims to lie on floor and pointing a gun at them

       while taking money and obtaining access to getaway vehicle), trans. denied.

       Convictions for both confinement and a second offense, such as robbery, may

       both stand if there is evidence that confinement of a victim continued after a

       robbery was completed. See Merriweather v. State, 778 N.E.2d 449, 455-56 (Ind.

       Ct. App. 2002) (affirming convictions for both robbery and confinement where

       defendant ordered victim to empty cash registers, then continued holding her at

       gunpoint and ordered her to go to store manager’s office).


[22]   Here, we see no reasonable basis upon which to conclude that the confinement

       of Villalobos and Altatenco was any more extensive than necessary to carry out




       2
        We also note that the elevation of both Taylor’s burglary and robbery convictions to higher levels of felonies
       based on the use of the same weapon presents no double jeopardy problem. See Miller v. State, 790 N.E.2d
       437, 439 (Ind. 2003).

       Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018                            Page 13 of 15
       the robbery. As testified to by Villalobos and Altatenco, immediately after

       Taylor and his cohorts broke into the house, they forced them into separate

       rooms at gunpoint, put zip ties around their wrists, and then began beating

       them up. It was while Villalobos was being beaten that one of the men

       demanded money from him. When Villalobos at first said he had no money,

       one of the men pointed a gun at his head and threatened to kill him if he had no

       money. Villalobos then told them about the $150, which one of them took.

       Villalobos could not recall how long the incident took because “[e]verything

       happened so fast.” Tr. Vol. II p. 116. He also said that the beating and

       confinement in the bedroom only ended when police arrived on the scene.


[23]   Given this evidence, it is apparent that the confinement of both Villalobos and

       Altatenco was part and parcel of how Taylor and his cohorts accomplished the

       robbery. There was no evidence of any separate or significant length of

       confinement after the robbery was completed. And, this was not a protracted

       incident. As such, we conclude that Taylor’s two convictions for Level 3 felony

       confinement must be vacated.


                                                  Conclusion
[24]   The trial court properly allowed Detective Melton to testify about evidence he

       recovered from Taylor’s phone by using the “Chip-Off” forensic technique; in

       any event, that evidence would have been harmless if it was erroneously

       admitted. Although Taylor’s convictions for Level 2 felony burglary and Level

       3 felony robbery do not violate double jeopardy principles, those principles


       Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018   Page 14 of 15
       require that we reverse and remand for the trial court to vacate his convictions

       for Level 3 felony confinement.


[25]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1708-CR-1930| May 4, 2018   Page 15 of 15
