MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                            Jun 17 2020, 10:00 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                                   ATTORNEY FOR APPELLEE
James Harper                                             Ian McLean
Deputy Public Defender                                   Supervising Deputy Attorney
Harper & Harper, LLC                                     General
Valparaiso, Indiana                                      Indianapolis, Indiana



                                           IN THE

    COURT OF APPEALS OF INDIANA

Brian Taylor,                                            June 17, 2020
Appellant/Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2086
        v.                                               Appeal from the LaPorte Circuit
                                                         Court
State of Indiana,                                        The Hon. Thomas Alevizos,
                                                         Judge
Appellee/Plaintiff.
                                                         Trial Court Cause No.
                                                         46C01-1403-MR-110



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020                   Page 1 of 28
                                          Case Summary
[1]   On the morning of March 14, 2014, Brian Taylor was at the Michigan City

      home of his girlfriend Simone Bush when the two began to argue. They

      struggled; Taylor shot Bush once in the neck, killing her; and Taylor fled.

      Police began an investigation when Taylor and his grandfather arrived soon

      thereafter at a Michigan City police station. Officers found Bush dead at her

      house and obtained search warrants for the house, Taylor’s vehicle, and

      Taylor’s person, all of which were executed that day. Taylor was arrested at

      3:20 p.m.

[2]   At 4:12 p.m., Taylor met with his attorney in an interview room at the police

      station, and police officers in an adjacent room were able to eavesdrop on their

      conversation and illegally did so. The conversation included discussion about

      Taylor disposing of a firearm, which led to the recovery of a firearm from an

      apartment complex. On March 16, 2014, the State charged Taylor with

      murder.

[3]   After the State informed Taylor that the conversation with his attorney had

      been overheard, he moved to suppress all evidence collected after 4:12 p.m.,

      and, after a hearing, the trial court ruled, inter alia, that evidence related to the

      handgun recovered from the apartment complex was to be suppressed. The

      Indiana Supreme Court affirmed the suppression of the handgun but concluded

      that evidence collected after 4:12 p.m. that could be shown to have come from a

      source independent of the overheard conversation was admissible.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 2 of 28
[4]   After a mistrial was declared in Taylor’s first jury trial, he was tried a second

      time in June of 2018. Over Taylor’s objections of witness taint, Detective

      Patrick Cicero was allowed to testify regarding his analysis of blood patterns at

      the scene and on Taylor’s clothing, and forensic pathologist Dr. Joseph

      Prahlow was allowed to testify that Bush’s manner of death was homicide. The

      jury found Taylor guilty as charged, and the trial court sentenced him to sixty

      years of incarceration. As reordered, Taylor contends that (1) the trial court

      abused its discretion in allowing Detective Cicero and Dr. Prahlow to testify

      and in admitting evidence related to certain messages on Facebook and Dr.

      Prahlow’s testimony that the manner of Bush’s death was homicide; (2) the

      State produced insufficient evidence to sustain his murder conviction; and (3)

      his sentence is inappropriately harsh. Because we disagree with all of Taylor’s

      contentions, we affirm.


                            Facts and Procedural History
                        Facts of Bush’s Death and the Police Investigation
[5]   On the evening of March 13, 2014, Taylor spent the night with Bush in the

      house she shared with her grandmother Louise Kelly, her step-grandfather

      Darrell Kelly, Sr., and Chanel Turner, among others. Early the next morning,

      Turner, who lived in the basement with her children, heard wrestling in Bush’s

      bedroom above her followed by what sounded like a gunshot. Darrell heard a

      “thump, like something being knocked over” at around 6 a.m. and saw Taylor

      quickly drive away shortly thereafter. Tr. Vol. IV p. 19. At approximately 7:35

      a.m., Taylor arrived at a Michigan City police station with his grandfather, who


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 3 of 28
      gave Taylor’s driver’s license to the police, told them that “something had gone

      on,” and advised Taylor not to say a word until his attorney arrived. Tr. Vol. II

      p. 55. Taylor had Bush’s blood on his shirt, pants, and hands.

[6]   At 8:20 a.m., Detective Francisco Rodriguez of the Michigan City Police

      Department (“MCPD”) searched Facebook and found an account under

      Taylor’s name which included a photograph of him. Another officer had

      learned that Taylor had a girlfriend who was possibly named Simone, so

      Detective Rodriguez searched the Facebook account and found that Taylor had

      a Facebook friend named Simone Bush. The Facebook page showed several

      messages from around 5:00 a.m. that morning, including “I’m dat n[****] with

      the fat heat keep you runnin like a track meet” and “How you don’t think you

      dont gotta please yo man … Goofy[.]” State’s Ex. 7. After Detective

      Rodriguez learned Bush’s address, several police officers went to investigate.

[7]   When police arrived, they asked to check Bush’s bedroom, and MCPD

      Detective Matthew Barr forced her bedroom door open far enough to see her

      behind the door; she was dead, her eyes were open, her face was bloody, and

      she was lying in a large pool of blood. Officers also noticed a hole in the wall

      outside the bedroom, a mark in the ceiling of an adjacent room, and what was

      later determined to be the fatal bullet on a couch underneath the mark in the

      ceiling. There were footprints in the snow leading from Bush’s bedroom

      window to the driveway, the bedroom window was partially open, and the

      windowsill bore what appeared to be bloodstains.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 4 of 28
[8]   A search warrant for the house was issued at approximately 11:00 a.m., and

      officers who executed the warrant included Detective Cicero of the LaPorte

      County Sheriff’s Department and Detective David Cooney of the MCPD.

      Bloodstains on the wall behind Bush’s body bore arcing characteristics of

      arterial gush or spurt, while other stains on the wall had the characteristics of

      transfer stains. Bush had died from a gunshot wound to her neck at contact

      range. The direction of the gunshot was from her left to right, front to back,

      and upwards. The bullet had travelled through the base of Bush’s brain,

      severing her spinal cord, fracturing her skull, and severing her carotid artery,

      causing her circulatory system to pump blood out of the wound for a short

      while until blood loss caused unconsciousness and death.

[9]   Officers determined that the fatal bullet had come from a gun fired in Bush’s

      bedroom, striking her and passing through the wall at a height of approximately

      five feet at an upward angle before hitting the ceiling in the next room and

      falling to the couch. Although officers did not find any firearms at the scene,

      they did find a shipping invoice addressed to Taylor for an SGM tactical Glock

      magazine for .40 caliber ammunition and several spent casings for .40 caliber

      rounds in Bush’s room. Bush was also known to have a mobile telephone, but

      it was not found at the scene. Officers later attempted to recover both Taylor’s

      and Bush’s mobile telephones, with no success. Officers finished processing the

      scene between 3:00 p.m. and 4:00 p.m. A search of Taylor’s vehicle yielded,

      inter alia, a backpack that contained empty boxes for two Glock handguns, one

      model 22 and one model 23, both of which take .40 caliber ammunition.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 5 of 28
[10]   Taylor was arrested at 3:20 p.m., and attorney David Payne arrived at the

       police station while officers were executing a search warrant for Taylor’s

       person, which revealed several scratches on his chest and arms. At 4:12 p.m.,

       MCPD Detective Stephen Westphal and LaPorte County Chief Deputy

       Prosecuting Attorney Robert Neary showed Payne into an interview room,

       where Taylor was waiting. Detective Westphal told Payne to flip a toggle

       switch to prevent anyone outside the room from hearing his conversation with

       Taylor, and Payne did so. An adjacent room, referred to as the “war room,”

       was used by officers to work on cases. As it happened, the switch Payne had

       activated in the interview room did not prevent persons in the war room from

       hearing conversations in the interview room.

               For the next thirty to forty minutes, the War Room group listened
               in as Taylor and his attorney discussed “all aspects” of the case,
               including location of evidence and defense trial strategy.
               According to Chief Deputy Prosecutor Neary, the officers cut off
               the audio feed immediately after Taylor revealed the location of a
               handgun.
       State v. Taylor, 49 N.E.3d 1019, 1021 (Ind. 2016) (“Taylor I”).

[11]   Detective Cooney was among those present in the war room and overheard at

       least some of the conversation between Payne and Taylor, which included

       discussion of the disposal of a firearm. Despite Neary’s instruction not to

       search for the firearm, some officers did, which led to the recovery of a Glock

       22 whose serial number matched the serial number on one of two Glock

       containers found in Taylor’s vehicle. Officers followed up on the other Glock

       container found in Taylor’s backpack and determined that the Glock 23 with


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 6 of 28
       the matching serial number had been purchased by Bush. The Glock 23 was

       later recovered by Chicago police and examined by South Bend Police Officer

       Ray Wolfenbarger. Officer Wolfenbarger determined that the Glock 23 was

       fully operational and could have fired the bullet that killed Bush.

[12]   Detective Cooney, in addition to assisting at the scene, also helped execute the

       search warrant on Taylor’s vehicle and helped Detective Cicero move Taylor’s

       clothing to the basement. Detective Cicero examined Taylor’s clothing

       beginning shortly after 4:40 p.m. on March 14, 2014. Detective Cicero could

       not specifically remember sharing his opinions and thoughts when processing

       Taylor’s clothes but testified later that his examination was consistent with his

       normal practices and that he may have spoken with Detective Cooney.

       Detective Cicero, who had already examined bloodstains at the scene,

       documented bloodstains found on Taylor’s clothing and later prepared initial

       and supplemental bloodstain pattern analysis reports detailing his findings. On

       April 15, 2014, Detective Cicero further examined the interior of Taylor’s

       clothing, including a microscopic examination.

[13]   Detective Cicero determined that bloodstains found on the front of Taylor’s

       undershorts displayed small-diameter stains, indicating that Bush’s blood had

       been dispersed into individualized droplets. Stains on the left rear side

       displayed a different type of pattern, indicating that the shorts had come into

       contact with the source of the bloodstains. Stains on the inside front waistband

       of Taylor’s blue jeans near the fastening button, the lower outside left leg near

       the cuff, the rear outside waist area, and on the outside front left pocket of the



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 7 of 28
       jeans were all made leaving a contact pattern, consistent with a bloody hand

       making contact with the undershorts. The outside of Taylor’s shirt displayed

       similar contact stains, although one area might have been made by pattern

       transfer, which is left when a patterned object with blood on it presses into the

       surface leaving a mark. As for the scene, the bloodstain on the heater vent

       under Bush’s bedroom window displayed the characteristics of a gravity stain,

       made by blood falling onto a surface. Detective Cicero’s written reports also

       relied on DNA analysis showing that Taylor’s skin was found under Bush’s

       fingernails. Detective Cicero’s supplemental report included the following

       conclusion:

               At the time of the bloodletting event it is believed the suspect was
               in contact and/or close proximity to the decedent only wearing the
               aforementioned polyester shorts and ankle length socks. The
               suspect subsequently dressed while the bloodstains on his being
               were still wet which created the bloodstain patterns consistent with
               being contact transfer on the interior and exterior sides of his
               clothing.
       Supp. App. p. 57.

[14]   Neither of Detective Cicero’s reports concluded that Taylor had been the

       shooter or that there had been a physical conflict immediately before the

       shooting. Detective Cicero’s work on the case followed standard procedures

       and relied on his inspection of physical evidence. Detective Cicero was never

       in the war room on March 14, 2014, and did not hear any of the conversation

       between Taylor and Payne, only learning about it “a considerable time” later

       from another person. Tr. Vol. III p. 116. Detective Cicero could not recall who



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 8 of 28
       this person was, but recalled that the person had said “something to do with a

       firearm.” Tr. Vol. III p. 103.

[15]   On March 17, 2014, Bush’s autopsy was performed by Dr. Prahlow and was

       attended by Detective Cooney and LaPorte County Deputy Coroner Mark

       Huffman. Detective Cooney recalled speaking with Dr. Prahlow and

       explaining a “scenario that [Bush] had received a gunshot wound” and “the

       circumstances surrounding the scene itself. How she was found. Where she

       was in the room. The extent of what we knew of the injuries.” Tr. Vol. II pp.

       101, 145–46. At some point, Detective Cooney shared with Dr. Prahlow his

       theory that a struggle or some kind of confrontation had occurred between Bush

       and Taylor. Detective Cooney’s hypothesis was based on the presence of blood

       on Taylor’s hands and the “directionality of the bullet that was discovered

       showed that she was up against a wall, that the round entered through the left

       side of her neck[.]” Tr. Vol. III p. 68. Detective Cooney’s theory was also

       based on the scratches found on Taylor’s chest and arm. Detective Cooney

       later testified that his opinions were not influenced by anything Taylor and

       Payne had said to one other in the interview room.

[16]   Dr. Prahlow’s report was issued on April 22, 2014, and, inter alia, noted under

       the heading “circumstantial history” that “the decedent was reportedly shot in

       the neck by her boyfriend during an altercation.” Supp. Ex. Vol. p. 60. Dr.

       Prahlow could not recall who had told him about a struggle or altercation

       between Bush and Taylor: “Again, I don’t have the specific person. It would

       either be the deputy corner in attendance, Mr. Mark Huffman, or perhaps a



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 9 of 28
       police officer in attendance, Officer David Cooney. I also have [Detective]

       Cicero listed on my intake form as well.” Tr. Vol III p. 162.


                                               Procedural Facts
[17]   Meanwhile, on March 16, 2014, the State had charged Taylor with Bush’s

       murder. On June 10, 2014, Taylor filed a motion to suppress after the State

       notified Payne that officers had overheard their conversation in the interview

       room. On June 16 and 17, 2014, the trial court held a suppression hearing at

       which Taylor argued that all evidence obtained after 4:12 p.m. on March 14,

       2014, should be suppressed. On June 17, 2014, the trial court ruled that

       evidence related to the Glock 22 recovered by police in Michigan City should

       be suppressed, that numerous other pieces of physical evidence did not need to

       be suppressed, and deferred ruling on the admissibility of certain other items.

       The trial court also ruled that several police witnesses who had asserted the

       privilege against self-incrimination at the suppression hearing were barred from

       testifying as the case progressed. On June 19, 2014, the trial court later clarified

       its order to allow the admission of evidence collected before 4:12 p.m. on

       March 14, 2014, and reiterated that the burden was on the State to establish that

       evidence collected after 4:12 p.m. was admissible at trial.

[18]   The State appealed, and while the Indiana Supreme Court ultimately affirmed

       the trial court’s rulings regarding the admissibility of physical evidence, it

       concluded that the trial court’s blanket suppression of witness testimony was an

       inappropriate remedy. See Taylor I, 49 N.E.3d 1026–28. The Taylor I Court

       determined that the appropriate remedy was to remand for the trial court to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 10 of 28
       determine “as to each presumptively tainted witness whether the State has

       proven beyond a reasonable doubt an independent source for that witness’s

       testimony[.]” Id. at 1029 (emphasis in Taylor I). The Taylor I Court did not

       address Taylor’s prosecutorial misconduct claim because the impact of

       prosecutorial misconduct is measured by its probable persuasive effect on the

       jury’s decision and no trial had yet occurred. Id.

[19]   On August 28 and 29, 2017, the trial court held a second suppression hearing.

       On January 23, 2018, the court ruled that (1) all physical evidence collected and

       testimony regarding officers’ observations made prior to 4:12 p.m. on March

       14, 2014, was admissible; (2) evidence related to the Glock 22 recovered by

       officers in Michigan City was inadmissible; and (3) evidence related to the

       Glock 23 recovered by police in Chicago was inadmissible, although the

       question could be revisited in further proceedings. The trial court also found

       that to the extent that an officer or officers had told Dr. Prahlow about an

       altercation, it had been the result of what the officers had already believed or

       known before 4:12 p.m. on March 14, 2014, namely, their belief that Taylor

       had shot Bush and their knowledge of the scratch marks on Taylor’s body and

       that Taylor had appeared at MCPD with bloodstains on his clothing and hands.

[20]   On February 26, 2018, Taylor was tried before a jury, after which a mistrial was

       declared when the jury could not reach a verdict. On June 18 through 20, 2018,

       Taylor was tried a second time before a jury. The Facebook messages from

       5:00 a.m. on March 14, 2014, were admitted over Taylor’s objection that they

       could not be attributed to him. Detective Cicero testified, over objection of



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 11 of 28
       taint, regarding his analysis of bloodstains at the scene and on Taylor’s

       clothing. Detective Cicero was not asked, and did not opine on, whether the

       bloodstains found on the scene or Taylor’s clothing indicated that an alteration

       had occurred between Taylor and Bush before her death. Neither of Detective

       Cicero’s written reports were offered into evidence.

[21]   Dr. Prahlow testified, over objection, that “homicide” was the manner of

       Bush’s death, meaning “death at the hands of another individual.” Tr. Vol. IV

       p. 182. Dr. Prahlow testified that the gunshot was at contact range due to the

       presence of soot and stippling at the entrance wound, meaning that there was

       “either no space or little space” between her and the handgun when it fired. Tr.

       Vol. IV p. 200. While acknowledging that he could not exclude suicide as the

       manner of Bush’s death, Dr. Prahlow testified that he had relied on information

       he had received and his own judgment to conclude that her death had, in fact,

       not been a suicide. Specifically, Dr. Prahlow emphasized that the location of

       the gunshot wound in the neck was quite unusual for a suicide, the “classic

       locations” being the chest, forehead, temple, mouth, or underneath the chin.

       Tr. Vol. IV p. 197. As for the possibility of an accidental shooting, Dr. Prahlow

       acknowledged on cross-examination that he could not exclude the possibility

       that the gun had been discharged while Taylor and Bush were wrestling over its

       possession. Dr. Prahlow’s autopsy report, as admitted into evidence, did not

       include the circumstantial history that he had been told that Bush had

       reportedly been shot by her boyfriend.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 12 of 28
[22]   During closing, Taylor argued that the evidence was consistent with Taylor and

       Bush arguing, Bush picking up a handgun, and an accidental discharge

       occurring during a struggle for the handgun, possibly due to a malfunction.

       The jury found Taylor guilty as charged. On July 31, 2018, the trial court

       sentenced Taylor to sixty years of incarceration.


                                  Discussion and Decision
                                   I. Admission of Evidence
[23]   Taylor contends that the trial court abused its discretion in allowing Detective

       Cicero and Dr. Prahlow to testify, admitting certain Facebook messages from

       Taylor’s account, and allowing Dr. Prahlow to opine that Bush’s manner of

       death was homicide. A trial court’s ruling on the admission or exclusion of

       evidence is reviewed for an abuse of discretion that results in prejudicial error.

       Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). A trial court’s evidentiary

       decision will be reversed for an abuse of discretion only where the court’s

       decision is clearly against the logic and effect of the facts and circumstances, or

       when the court misinterprets the law. Id.


               A. Detective Cicero’s and Dr. Prahlow’s Testimony
[24]   Taylor contends that the testimony of Detective Cicero and Dr. Prahlow was

       tainted by the eavesdropping on his conversation with Payne and that the State

       failed to establish beyond a reasonable doubt that they had a source

       independent of the eavesdropping for their testimony. Here, it was for the trial

       court to determine whether the State’s burden had been met. Generally, a trial

       court determines factual questions regarding admissibility by a preponderance

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 13 of 28
       of the evidence, Ind. Evidence Rule 103(f), but the Indiana Supreme Court has

       determined, at least under the circumstances of this case, that the State’s burden

       of proof was to be beyond a reasonable doubt. See Taylor I, 49 N.E.3d at 1029.


                                              1. Detective Cicero
[25]   Taylor contends that the State failed to establish beyond a reasonable doubt that

       Detective Cicero’s testimony regarding bloodstain patterns had a source

       independent of the eavesdropping of Taylor’s conversation with Payne. Taylor

       seems to argue that Detective Cicero’s reports and testimony must have been

       affected by hearing that Taylor and Bush had been involved in some sort of

       altercation before her shooting, giving rise to a presumption of taint that the

       State failed to rebut. We disagree.

[26]   At the first suppression hearing on June 16, 2014, Detective Cicero testified that

       he had not photographed Taylor’s clothing as a result of any overheard

       conversation between Taylor and Payne, he had not been provided with any

       information that there may have been a struggle or altercation between Taylor

       and Bush, and his reports had not been prepared as a result of the conversation

       between Taylor and Payne. Detective Cicero also testified that his reports were

       prepared as part of a normal course of action when investigating a crime scene.

       Moreover, at the second suppression hearing on August 28, 2017, Detective

       Cicero testified that he had not overheard any of the conversation between

       Taylor and Payne on March 14, 2014, and had not heard anything about the

       conversation from anyone that had influenced his reports. It was within the

       trial court’s discretion to credit Detective Cicero’s testimony that his


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 14 of 28
       investigation and conclusions were based on an independent source, and it did.

       Taylor’s argument is, essentially, that Detective Cicero’s analysis and testimony

       must have been tainted by whatever it is that he heard about the conversation

       between Taylor and Payne. This is nothing more than an invitation to reweigh

       the evidence, which we will not do. 1


                                                 2. Dr. Prahlow
[27]   Taylor also contends that the State failed to establish that Dr. Prahlow’s

       testimony had a source independent of the eavesdropping. Dr. Prahlow was

       not present in the war room at any time on March 14, 2014, so the Taylor I

       presumption of taint does not apply directly to him. Taylor, however, argues

       that Dr. Prahlow’s conclusions are tainted because Detective Cooney’s theory

       that a struggle occurred, which he relayed to Dr. Prahlow, was tainted. The

       record does reflect that Detective Cooney was in the war room after 4:12 p.m.

       on March 14, 2014, and did, in fact, later relate to Dr. Prahlow his theory that

       Taylor and Bush had struggled before she was shot. We conclude, however,

       that the State has produced evidence sufficient to establish that Detective

       Cooney’s theory of a struggle was based on evidence independent of any

       eavesdropping that may have occurred.




       1
         Taylor argues that Detective Cicero’s conclusions were tainted without ever actually identifying those
       conclusions. As it happens, the only conclusion of consequence drawn in either report was that Taylor was
       standing near to Bush when she was shot, something that Taylor does not dispute. Neither of Detective
       Cicero’s reports concluded that Taylor was the shooter (much less that he shot intentionally) or that a
       struggle preceded Bush’s death. In any event, the reports were not offered into evidence at trial.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020                 Page 15 of 28
[28]   Even if we assume that Detective Cooney overhead some—or even all—of the

       conversation between Taylor and Payne from the war room, he testified at the

       second suppression hearing that he had already concluded before 4:12 p.m. that

       there had been a “scuffle or a fight or a confrontation […] from the totality of

       everything that we collected from the residence, and then the suspect himself

       coming to the station that had blood on his hands; the scratch marks,

       everything, lead me to believe -- my hypothesis was that some kind of conflict

       happened.” Tr. Vol. III p. 76. As with Detective Cicero’s testimony, the trial

       court was entitled to credit Detective Cooney’s testimony that his theory that a

       struggle occurred was drawn from a source independent of Taylor and Payne’s

       conversation, and it did. We again decline Taylor’s invitation to reweigh the

       evidence.


                                        3. Prosecutorial Misconduct
[29]   Taylor also argues that Detective Cicero’s and Dr. Prahlow’s testimony should

       have been excluded “because it was a fruit of prosecutorial misconduct.”

       Appellant’s Br. p. 26. As the Taylor I Court emphasized, a successful claim of

       prosecutorial misconduct consists of two components:

               First, there must be misconduct; and second, the misconduct must
               have placed the defendant in a position of grave peril. Ryan v.
               State, 9 N.E.3d 663, 667 (Ind. 2014). “The gravity of the peril is
               measured by the probable persuasive effect of the misconduct on the
               jury’s decision rather than the degree of impropriety of the
               conduct.” Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 16 of 28
       49 N.E.3d at 1029 (emphasis in Taylor I). Put another way, even the most

       egregious official misconduct does not entitle a defendant to relief unless it can

       be shown to have likely affected the jury’s decision.

[30]   While we certainly agree that the official misconduct here was “flagrant[,]

       unconscionabl[e, and] shameful[,]” id. at 1023–24, Taylor simply has not

       established that it ultimately had any probable persuasive effect on the jury’s

       decision. As mentioned, all evidence regarding the Glock 22 handgun found in

       Michigan City was suppressed, and, as we have already determined, the State

       sufficiently overcame the presumption of taint with regard to the testimony of

       Detective Cicero and Dr. Prahlow. If the jury did conclude that a struggle

       occurred before Bush’s death, it was not because it heard any witness testify

       that such a struggle occurred or saw any exhibit that contained such a

       conclusion because no such evidence was admitted. In fact, the jury may very

       well have concluded that a struggle occurred because Taylor himself urged it to

       by arguing that Bush was shot accidentally during a struggle. However

       egregious the official misconduct was in this case, Taylor has failed to establish

       that it placed him in any peril at all, much less grave peril.

                                       B. Facebook Messages
[31]   Taylor contends that the trial court abused its discretion in admitting Facebook

       messages that he argues were insufficiently authenticated.

               “To lay a foundation for the admission of evidence, the proponent
               of the evidence must show that it has been authenticated.” Hape v.
               State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans. denied.
               Indiana Rule of Evidence 901(a) provides that “[t]o satisfy the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 17 of 28
               requirement of authenticating or identifying an item of evidence,
               the proponent must produce evidence sufficient to support a
               finding that the item is what the proponent claims it is.” Absolute
               proof of authenticity is not required. M.T.V. v. State, 66 N.E.3d
               960, 963 (Ind. Ct. App. 2016), trans. denied. Rather, the proponent
               of the evidence must establish only a reasonable probability that
               the evidence is what it is claimed to be, and may use direct or
               circumstantial evidence to do so. Pavlovich v. State, 6 N.E.3d 969,
               976 (Ind. Ct. App. 2014), trans. denied. Once this reasonable
               probability is shown, any inconclusiveness of the evidence’s
               connection with the events at issue goes to evidential weight, not
               admissibility. Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App.
               2008), trans. denied.
               “Letters and words set down by electronic recording and other
               forms of data compilation are included within Rule 901(a).”
               Wilson v. State, 30 N.E.3d 1264, 1268 (Ind. Ct. App. 2015), trans.
               denied.
       Richardson v. State, 79 N.E.3d 958, 962–63 (Ind. Ct. App. 2017) (paragraph

       numbers omitted), trans. denied. An adequate foundation may also be provided

       by circumstantial evidence “peculiar to the facts of the particular case” that

       “establish at least a prima facie showing of authentication.” Pavlovich, 6 N.E.3d

       at 977 (quotation omitted). This foundation need not be based on evidence that

       is itself admissible. Evid. R. 101(d). Moreover, facts establishing a foundation

       do not have to be established solely by witnesses testifying at a trial as opposed

       to an earlier hearing. Jeter v. State, 888 N.E.2d 1257, 1267 (Ind. 2008); McFall v.

       State, 71 N.E.3d 383, 388–89 (Ind. Ct. App. 2017).

[32]   The record contains ample evidence known to the trial court which

       authenticates Taylor’s Facebook page and messages. First, the page in question

       was found by searching for Taylor’s name on March 14, 2014, and the page


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 18 of 28
       displays a photograph of Taylor. Moreover, Detective Barr found Taylor’s

       Facebook identification and a link to his Facebook account on a computer in

       Bush’s house. Accessing the Facebook page would have required the account

       owner’s email address and password, and the trial court heard evidence that

       Taylor had used a computer in Bush’s house the night before her death.

[33]   Moreover, circumstances also tend to show that the messages in question were

       made by Taylor. “How you don’t think you don’t gotta please yo man ...

       Goofy” was posted shortly before Bush was killed and indicates that the poster

       was displeased with how he was being treated by a paramour, and it is

       undisputed that Taylor and Bush were romantically involved. State’s Ex. 7.

       Taylor’s Facebook page also contains a message indicating that the poster had

       “fat heat[,]” which is a slang term for a firearm. State’s Ex. 7. Because the

       evidence identifies Taylor as the owner of the Facebook account and the

       Facebook page contains messages whose content can be explained by the

       circumstances of Bush’s death shortly after they were made, it is sufficient to

       support a finding of authenticity. See Wilson v. State, 30 N.E.3d 1264, 1269

       (Ind. Ct. App. 2015) (concluding that testimony identifying a Twitter account

       as belonging to the defendant and evidence of content posted on the account

       corresponding to events developed in the investigation were “more than

       sufficient to authenticate the Twitter posts as being authored by Wilson”), trans.

       denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 19 of 28
                           C. Dr. Prahlow’s Opinion Regarding
                                Bush’s Manner of Death
[34]   Taylor contends that the trial court abused its discretion in allowing Dr.

       Prahlow to testify regarding his conclusion that the manner of Bush’s death was

       homicide, claiming that this was equivalent to opining that Taylor was guilty of

       murdering Bush. It is true that Indiana Evidence Rule 704(b) provides that

       “[w]itnesses may not testify to opinions concerning intent, guilt, or innocence

       in a criminal case[.]” Dr. Prahlow did not, however, opine that Taylor was

       guilty of murder, only that her death was a homicide; he merely offered

       testimony that supports an inference of guilt, which is unquestionably

       admissible. For one thing, Taylor’s argument ignores Evidence Rule 704(a),

       which provides that “[t]estimony in the form of an opinion or inference

       otherwise admissible is not objectionable just because it embraces an ultimate

       issue.” While evidence that Bush’s manner of death was homicide and that

       Taylor was the only other person in the room at the time may be damning, Dr.

       Prahlow simply did not testify that he believed Taylor to be guilty of murder.

       Essentially, Taylor would have us hold that evidence that allows an inference of

       guilt—all prejudicial evidence, in other words—is somehow equivalent to

       opinion testimony that a criminal defendant is guilty and therefore inadmissible

       in a criminal case. We will not consider adopting this clearly overbroad

       proposition. Taylor has failed to establish that the trial court abused its

       discretion in admitting Dr. Prahlow’s testimony regarding Bush’s manner of

       death.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 20 of 28
                                  II. Sufficiency of Evidence
[35]   Taylor contends that the State produced insufficient evidence to support his

       murder conviction. When a defendant challenges the sufficiency of the

       evidence used to convict him of a crime, we consider only the probative

       evidence and reasonable inferences arising therefrom supporting the conviction.

       Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm a conviction

       unless no reasonable factfinder could find the elements of the crime proven

       beyond a reasonable doubt. Young v. State, 973 N.E.2d 1225, 1226 (Ind. Ct.

       App. 2012). Put another way, reversal of a defendant’s conviction “is

       appropriate only when a reasonable trier of fact would not be able to form

       inferences as to each material element of the offense.” Purvis v. State, 87 N.E.3d

       1119, 1124 (Ind. Ct. App. 2017), aff’d on reh’g, 96 N.E.3d 123 (Ind. Ct. App.

       2018). This standard of review does not permit us to reweigh the evidence or

       allow us to judge the credibility of the witnesses. McCallister v. State, 91 N.E.3d

       554, 558 (Ind. 2018). Where there is conflicting evidence in the record, we

       consider the evidence in the light most favorable to the judgment. Drane, 867

       N.E.2d at 146.

[36]   Pursuant to Indiana Code section 35-42-1-1(1), the State was required in this

       case to establish that Taylor knowingly or intentionally killed Bush. It is not

       disputed that Taylor was in Bush’s bedroom when she was killed by a single

       gunshot fired from contact range, and blood-splatter evidence establishes that

       Taylor was in close proximity to Bush at the time. There is also ample evidence

       that Taylor and Bush were involved in a confrontation that became physical



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 21 of 28
       before she was shot. At 5:00 a.m. on March 14, 2014, Taylor posted a

       Facebook message indicating that he was upset with Bush for not pleasing him.

       Turner, who was in the room below Bush’s bedroom, heard “wrestling”

       followed by a gunshot. Taylor’s chest bore scratches when he was examined

       later in the day, and his DNA was found under Bush’s fingernails.

[37]   The State also produced evidence of Taylor’s flight and destruction and/or

       attempted concealment of evidence, which supports an inference of guilt. An

       eyewitness, physical evidence, and later recovery of the Glock 23 tend to show

       that, after Bush was shot, Taylor dressed, climbed out of her bedroom window,

       and quickly drove off, taking evidence with him. The State also produced some

       evidence that Taylor took Bush’s mobile telephone with him when he left and

       later disposed of it together with his own. This evidence further supports an

       inference of guilt. See, e.g., Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)

       (“Flight and related conduct may be considered by a jury in determining a

       defendant’s guilt.”); Stone v. State, 555 N.E.2d 475, 477 (Ind. 1990) (concluding

       that attempts to conceal evidence may be considered as proving consciousness

       of guilt).

[38]   As for the question of whether the handgun that killed Bush was fired

       deliberately , the State produced evidence that the Glock 23 handgun, which

       could have fired the fatal shot, functioned normally, requiring a deliberate pull

       of the trigger to fire in addition to the prior action of deliberately pulling the

       slide rearwards to chamber a round. This evidence tends to show deliberate

       action. See, e.g., Pierce v. State, 705 N.E.2d 173, 175 (Ind. 1998) (“As for proof



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 22 of 28
       that Pierce killed knowingly, an expert witness testified that the Lorcin pistol in

       question could only be fired by pulling the trigger; thus, other types of

       mishandling could not have caused the gun to discharge as Pierce claims.”).

[39]   The jury also heard evidence tending to show that Bush was not the person who

       fired the fatal shot. Dr. Prahlow, a board-certified forensic pathologist who had

       worked exclusively as a medical examiner and forensic pathologist for over

       twenty years, testified that a typical suicide involved a gunshot “to center chest,

       center forehead, temple, intraoral, or also underneath the chin[.]” Tr. Vol. IV.

       p. 197. Bush, however, was shot on the left side of her neck. In order for the

       right-handed Bush to shoot herself in the neck with her dominant hand, she

       would have had to have reached far underneath her chin and across her chest to

       angle the gun back to her neck. Taylor is also right-handed, though, and in

       order to put a gun to Bush’s neck and pull the trigger, all that would have been

       required was a much more natural reaching motion with his dominant hand.

       In summary, the State produced evidence that Taylor was present when Bush

       died, he was in close proximity when she was shot, he fled and concealed

       evidence afterwards, the fatal gunshot was fired deliberately, and Bush was not

       the person who fired the handgun. We conclude that this is more than

       sufficient to sustain a finding that Taylor murdered Bush.

[40]   Taylor relies on Willis v. State, 27 N.E.3d 1065, 1067 (Ind. 2015), for the

       proposition that his flight is not probative of his guilt. Willis, in which the

       defendant was convicted of criminal trespass solely on evidence that officers

       responding to a building saw him running in a field 100 yards away, is easily



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 23 of 28
       distinguished. Id. The Willis Court concluded that the simple act of running

       through a field was not probative of whether Willis “interfered with the

       possession or use of the property of the Watkins Family Recreational Center.”

       Id. Here, however, there is no dispute that Taylor was in the same room with

       Bush when she was shot, and the State produced evidence that he dressed

       himself, snuck out the window, and drove away from the house with such haste

       that he almost struck a wall. To the extent that Willis stands for the proposition

       that the mere act of running in the general vicinity of an alleged crime scene is

       insufficient to support a criminal conviction, it has no applicability to this case.

[41]   Taylor also contends that the State failed to establish that he intended to kill

       Bush, relying on Landress v. State, 600 N.E.2d 938 (Ind. 1992). Landress is also

       easily distinguished. First, in Landress the State was required to prove that

       Landress intentionally killed the victim in order to impose the death penalty.

       Id. at 940. Here, however, the State was only required to prove that Taylor

       knowingly killed Bush, and “[a] person engages in conduct ‘knowingly’ if,

       when he engages in the conduct, he is aware of a high probability that he is

       doing so.” Ind. Code § 35-41-2-2(b); see also Ind. Code § 35-2-42-1-1(1) (“A

       person who […] knowingly or intentionally kills another human being […]

       commits murder, a felony.”).

[42]   Landress is also factually distinguishable. In that case, the evidence established

       only that (1) Landress participated in a robbery during which her accomplice

       fatally stabbed the victim multiple times and (2) of the two knives at the scene—

       one Landress brought to the robbery and one Landress took from the kitchen—


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 24 of 28
       the victim’s blood was found on the knife Landress took from the kitchen. Id.

       at 941–42. The Landress Court rejected the State’s argument that because the

       victim had been stabbed with the knife Landress had taken from the kitchen,

       the jury could infer that Landress had stabbed the victim and that she had

       intended the victim to die. Id. at 942. In contrast, the evidence in this case does

       not establish that Taylor’s connection to the fatal shot was simply giving the

       pistol to Bush in the midst of a physical altercation. As discussed above, the

       State produced evidence that the gun was fired by Taylor and not Bush.

       Taylor’s reliance on Landress is unavailing. In the end, Taylor’s claim is

       nothing more than an invitation to reweigh the evidence, which we will not do.

       See Drane, 867 N.E.2d at 146.

                             III. Appropriateness of Sentence
[43]   Taylor contends that his sixty-year sentence for murder is inappropriately

       harsh. We “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences

       must give due consideration to the trial court’s sentence because of the special

       expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B)

       is an authorization to revise sentences when certain broad conditions are

       satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans.

       denied (citations and quotation marks omitted). “[W]hether we regard a

       sentence as appropriate at the end of the day turns on our sense of the



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 25 of 28
       culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other factors that come to light in a given case.” Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the “due

       consideration” we are required to give to the trial court’s sentencing decision,

       “we understand and recognize the unique perspective a trial court brings to its

       sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

       2007). Taylor has the burden to show his sentence is inappropriate in light of

       both the nature of the offense and his character. Gil v. State, 988 N.E.2d 1231,

       1237 (Ind. Ct. App. 2013). This can only be done with “compelling evidence

       portraying in a positive light the nature of the offense […] and the defendant’s

       character.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[44]   The nature of Taylor’s offense contains nothing that puts it in “a positive light.”

       Id. Taylor shot and killed his girlfriend when he was a guest in her home,

       apparently (at least in part) because she would not “please” him. State’s Ex. 7.

       Taylor argues that the severity of this crime is lessened by evidence that Bush

       scratched the skin of his chest and arm before he killed her. If scratching Taylor

       was the act that got Bush killed, this, if anything, underscores the senselessness

       of Bush’s killing. Instead of deescalating the situation and disengaging from the

       struggle, Taylor put a loaded handgun against Bush’s neck and fired, killing her.

       Taylor did not summon help but, rather, dressed himself and fled, taking

       evidence with him. Taylor has failed to establish that the nature of his offense

       warrants a more lenient sentence.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 26 of 28
[45]   As for Taylor’s character, it is worth noting that while on pretrial release in this

       case, he picked up additional charges of attempted murder, criminal

       recklessness, and criminal recklessness by discharging a firearm into a building.

       That case was disposed of in the same court as this case, and the trial court

       observed that another person died as a result of Taylor’s conduct in that case.

       Taylor had served the sentence for that other case by the time he was sentenced

       in this one, but the fact that he committed that act after killing Bush does not

       reflect well on his character, to say the least. Moreover, he murdered Bush

       when her family and Turner’s children were asleep in their beds. As the trial

       court noted, this, at the very least, indicates that Taylor had no qualms about

       discharging a firearm when others in the home could have been struck by the

       bullet after it passed though the wall of the bedroom. Taylor has not

       established that his moderately-aggravated sixty-year sentence is inappropriate

       in light of the nature of his offense and his character.


                                               Conclusion
[46]   We conclude that the trial court did not abuse its discretion in allowing

       Detective Cicero and Dr. Prahlow to testify or in admitting evidence related to

       Taylor’s messages on Facebook and Dr. Prahlow’s testimony that the manner

       of Bush’s death was homicide. Moreover, we conclude that the State produced

       sufficient evidence to sustain Taylor’s murder conviction. Finally, we conclude

       that Taylor has failed to establish that his sixty-year sentence is inappropriately

       harsh.


[47]   We affirm the judgment of the trial court.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 27 of 28
Baker, J., and Pyle, concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2086 |June 17, 2020   Page 28 of 28
