The opinion
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.
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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
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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.
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[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.
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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
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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
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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
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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
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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
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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
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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
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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).
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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
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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.
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