Court of Appeals of Indiana | Opinion 49A02

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A TTORNEY FOR A PPELLANT Deborah Markisohn Marion County Public Defender Agency Appellate Division Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General Lyubov Gore Deputy Attorney General Indianapolis, Indiana


### I N T H E 

# COURT OF APPEALS OF INDIAN A

K.K. , Appellant

- Respondent

, v. 

### State of Indiana , Appellee

- P etitioner April 9, 2018 Court of Appeals Ca se No. 49A02

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- 2274 Appe al from the Marion Superior Court The Honorable Marilyn A. Moores , Judge The Honorable Geoffrey A. Gaither, Magis trate Trial Co urt Cause No. 49D09

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- JD

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Crone , Judge .Court of Appeals of Indiana | Opinion 49A02

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### Case Summary
[1] K.K. appeals h is adjudication as a juvenile delinquent for committing acts that would constitute level 4 felony burglary and level 6 felony theft if committed by an adult

. He argu es that the trial court abused its discretion in admitting fingerprint evidence. Finding no abuse of discretion , we affirm

.



### Facts and Procedural History
[2] In November 2016, Jes us Morales returned to his home and found it in disarray; some of his possessions h ad been moved and opened shoe boxes were scattered in the hallway. He discovered that jewelry, a television, electronic game systems, and electronic games had been stolen

. It appeared that someone might have entered the home through t he rear bedroom wi ndow because it was unlocked and the blinds were raised

.
[3] Indianapolis Police Officer Brian Wills photographed the crime s cene and inspected it for fingerprints. H e recovered three fingerprints from a television in the master bedroom using fingerprint ta pe and attached the tape to a latent print card , subsequently identified at K.K.’s denial hearing as State’s Exhibit 10. Officer Wills also recovered t wo fingerprints from the outside sill of the window believed to be the point of entry and created anothe r latent print card , subsequently identified as State’s Ex hibit 11. Officer Wills logged Exhibits 10 and 11 in the l atent print database 1 with the case information (when, where,

1 The record does not otherwise identify the database in which Officer Wills logged Exhibits 10 and 11.Court of Appeals of Indiana | Opinion 49A02

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and by whom the latent prints were recovered) . The database generated a late nt print number for each card, which he recorded on the back of the cards. He placed the cards in a locked box used to store latent print cards , which was kept in a secure room

.
[4] Rochella O’Neil, an Indianapolis Police Department latent print examiner , was assigned to examine the latent fingerprints on Exhibits 10 and 11 for identification. She ha d been a latent print examiner for thirteen and a half years and ha d received training in basic latent print identification, complex latent print identific ation , and analysis of distortion in latent prints. To identify the fingerprints, s he used the ACE

- V method (analysis, comparison, evaluation, and verification). Pursuant to that method, she searched for comparable fingerprints in the Marion County Automatic Fi ngerprint I dentification System (AFIS) , but the search did not yield any matches. She then searched Indiana’s database and found what she perceived to be a match. She requested a hard copy of the fingerprints (“ the Database Fingerprints ”) from the State so that she could perform a manual comparison. Based on her evaluation , she concluded that fingerprints on Exhibits 10 and 11 matched the Database Fingerprints

. The Database Fingerprint card provided the name, date of birth, race, sex, height, weight, an d state identification number of the individual who was fingerprinted and identified the fingerprints as those of K.K. The Database Fingerprint card did not contain any other information

.
[5] On March 16, 2017, the State filed, and the trial court subsequentl y approved, a delinquency petition alleging that sixteen

- year - old K.K. committed acts thatCourt of Appeals of Indiana | Opinion 49A02

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would constitute level 4 felony burglary and level 6 felony theft if committed by an adult. On May 9, 2017, the S tate filed a motion to require K.K. to submit to f i ngerprinting , which t he trial court granted.

[6] On August 15, 2017 , a denial hearing was held. That morning, O’Neil fingerprinted K.K. , who was now seventeen years old, and this fingerprint card was subsequently identified as State’s Exhibit 12. Officer Wil ls testified at the hearing , and the trial court admitted Exhibits 10 and 11. O’Neil also testified at the hearing. When the State began to question O’Neil about Exhibit 12, the trial court permitted K.K

. ’s counsel to question her as to whether she knew anything about the circumstances surrounding the creation of the Database Fingerprints

. O’Neil testified that she had “ absolutely no knowledge of what happened when [ K.K. ] was printed or why he was printed. ” Tr. Vol. 2 at 27. K.K. then objected to the a dmission of Exhibit 12 and moved to suppress any testimony based on it

. In support, K.K. argued that the Database F ingerprints
were illegally obtained and retained “as far as we know” because the State had not demonstrated that they complied with the appl icable statutes , and thus any evidence obtained from using the D atabase Fingerprints was the “fruit of the poisonous tree.” Id . at 3 0

- 31. The trial court overruled K.K.’s objection and denied his motion to suppress and allowed O’Neil to testify over K.K. ’s continuing objection . O’Neil testified t hat based on her experience as an expert in the field , th ree finger

prints on Exhibit 10 matched K.K.’s left thumb print on Exhibit 12, and one of the fingerprints on Exhibit 11 matched K.K.’s rightCourt of Appeals of Indiana | Opinion 49A02

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thumbprint on Exhibit 12. Id . at 39. The State did not seek to admit the Database F ingerprints

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[7] After the State rested, K.K. moved for involuntary dismissal of both counts. The trial court denied his motion and entered true findings on both counts. K.K. now appeal s . 

### Discussion and Decision
[8] K.K. argues that the trial court abused its discretion in admitting the State’s fingerprint evidence

. We review a trial court’s decision on the admission of evidence for an abuse of discretion. Burnett v. State , 815 N.E.2d 201, 204 (Ind. Ct. App. 2004) . A trial court abuses its discretion where its decision is clearly against the logic and effect of the facts and circumstances before it. Id

. In determining whether the trial court has abused its discretion , we do not reweigh t he evidence, and we consider only evidence favorable to the ruling or unrefuted evidence favorable to the respondent

. Beasley v. State , 46 N.E.3d 1232, 1235 (Ind. 2016)

. “ [A] claim of error in the admission or exclusion of evidence will not prevail on ap peal unless a substantial right of the party is affected.” Burnett , 815 N.E.2d at 204

.
[9] Specifically, K.K. asserts that Exhibit 12 and O’Neil’s testimony based thereon

w ere inadmissible because the State was unable to establish that the Database Fingerprin ts were taken in compliance with Indiana Code S ections 31

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- 1(a),

- 3,

- 4, and

- 5 (“the Juvenile Fingerprinting Statutes”)

. Indiana Code Section 31

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- 1 (a) permits law enforcement to take and file the fingerprints orCourt of Appeals of Indiana | Opinion 49A02

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photographs of a child if “ (1) the child is taken into custody for an act that would be a felony if committed by an adult; and (2) the child was at least fourteen (14) years of age when the act was allegedly committed. ” Section 31

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- 3 states that if “ (1) latent fingerprints are found d uring the investigation of an offense; and (2) a law enforcement officer has probable cause to believe that the latent fingerprints belong to a certain child; the officer may fingerprint that child and compar e the child’ s fingerprints with the latent finge rprints. ” Section 31

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- 4 (a) provides that upon written request , the law enforcement agency shall destroy or deliver to the child the child’s fingerprints or photographs if “ (1) the child was taken i nto custody and no petition was filed against the chil d; (2) the petition was dismissed because of mistaken identity; (3) the petition was dismissed because no delinquent act was actually committed; or (4) the petition was dismissed for lack of probable cause. ” Under Section 31

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- 4(b), the law enforcement agency does not have to destroy the child’s fingerprints or photographs if the child has a record of prior arrests or has another charge pending. And Section 31

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- 5 requires law enforcement agencies to provide written notice to the child and the child ’s parent or guardian at the time the child’s fingerprints or photographs are taken of the child’ s right under S ection 31

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- 4 and to “comply with any request for destruction or surrender of the records not later than sixty (60) days of the request. ”

[10] A t t he denial hearing , O’Neil testified that she had “absolutely no knowledge of what happened when [K.K.] was printed or why.” Tr. Vol. 2 at 27. K.K. is correct that the State did not present evidence to establish that the DatabaseCourt of Appeals of Indiana | Opinion 49A02

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Fingerprints were taken i n compliance with the Juvenile Fingerprinting Statutes

. However, K.K. does not dispute that the fingerprints in Exhibit 12 were taken in accordance with the Juvenile Fingerprinting Statutes

. A lso, O’Neil’s testimony was based on a comparison of the finge rprints on Exhibit 12 with those on Exhibits 10 and 11, and K.K. does not dispute the admissibility of Exhibits 10 and 11.

[11] K.K.’s sole c hallenge to the admissibility of Exhibit 12 and O’Neil’s testimony is based on the Database Fingerprints . The Database Fingerprints were instrumental in establishing probable cause to charge him. His argument that Exhibit 12 and O’Neil’s testimony are inadmissible conflates the admissibility of evidence at trial with evidence of probable cause

. W e reject his unsupported assumption that the use of the Database Fingerprints to establish probable cause requires, as a matter of law, that the State present evidence to prove that t hey were taken in compliance with the Juvenile Fingerprinting Statutes as a prerequisite for the admissibility for Exhib it 12 and testimony based on it ( which in all other respects constitute admissible fingerprint evidence )

.
[12] Th ere may be circumstances that would require the State to prove that fingerprints used to establish probable cause were take n and stored in compliance with the Juvenile Fingerprinting Statutes , f or example, if the juvenile came forward with some evidence that raised a question regarding whether the fingerprints were obtained and stored in compliance with them

. Although our cou rts have rarely had occasion to address the se Statutes , in J.B. v. State , 868 N.E.2d 1197 (Ind. Ct. App. 2007), trans. denied , another panel ofCourt of Appeals of Indiana | Opinion 49A02

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this court addressed a juvenile’s specific challenge to the State’s compliance with Section 31

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[13] The fa cts in J.B. are similar to ours, although the case is procedurally different

. A house was burglarized and the police recovered latent fingerprints. O’Neil examined the latent fingerprints and found a match ing set of prints on AFIS, which belonged to J.B. The State then filed a delinquency petition alleging that J.B. had committed an act that would constitute burglary if committed by an adult. The State filed a motion seeking permission to fingerprint J.B. , who moved to suppress any fingerprint evidence. After a hearing, the trial court denied his motion and granted the State permission to fingerprint him

. J.B. sought and obtained the trial court’s certification of the order for interlocutory appeal.

[14] On appeal, J.B. argued that the State failed to adher e to the requirement of Section 31

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- 2 that f

ingerprint and photograph files of children be

“ separated ” from those of adults. The J.B. court concluded that “ juvenile records must be stored such that persons authorized to access adult records but not ju venile records will not be able to access the latter while accessing the former.” 868 N.E.2d at 1200. T he J.B. court then concluded that there was no evidence in the record that the State maintained AFIS, which held both juvenile and adult fingerprints, so that juvenile records were accessible only to

2 The other case involving the Juvenile Fingerprinting Statutes is Turner v. State , 508 N.E.2d 541 (Ind. 1987), but that case did not involve the use of juvenile fingerprints that were already in a database.Court of Appeals of Indiana | Opinion 49A02

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authorized persons, and therefore the State failed to prove that it had stored J.B.’s fingerprints in compliance with Section 31

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- 2. Id . at 1201. Ultimately, the J.B. court determined that the State’s non compliance did not require reversal because O’Neil was authorized to access juvenile records and would have discovered the fingerprints anyway

. Id . at 1201

- 02. J.B. also argued on appeal that the State failed to comply with Section 31

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- 1, but the J.B. court found that argument waived because it was not presented to the trial court. Id . at 1202.

[15] Significantly, in J.B. , the State stored juvenile and adult records together on the AFIS database , raising the potential that the juvenile records were not stored in compliance with Section 31

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- 2. It was then incumbent upon the State to prove that unauthorized persons would not be able to access the juvenile records , and the State had not produced that evidence

. Here , K.K. has not come forward with any evidence that the State actually violated the Juvenile Fingerprinting Statutes in some respect and there are no circumstances that call into question the State’s compliance with the Statutes

. 3 Accordingly, we cannot say that the trial court abused its di scretion in admitting Exhibit 12 and

3 We observe that K.K . has a history of ju venile arrests and adjudications beginning when he was thirteen years old

. Appellant’s App. Vol. 2 at 37

- 38. When he was fifteen, K.K. was arrested for committing acts that would have been level 6 felony th eft and level 4 felony burglary if committed by an adult. Because he was taken into custody for acts that would have been felonies and had committed those acts when he was at least fourteen years old , the State would have had the authority under Section 31

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- 1(a) to take and file his fingerprints. Because K.K. had a history of prior arrests, the State would not have been required to destroy his fingerprints pursuant to Section 31

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- 4(b).Court of Appeals of Indiana | Opinion 49A02

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O’Neil’s fingerprint testimony. 4 Therefore, we affirm the true findings for burglary and theft.

[16] Affirmed.
Bailey, J., and Brown, J., concur.

4 K.K. raises a sufficiency of the evidence argument based solely on the inadmissibility of the fingerprint e vidence. Because we have found the fingerprint evidence admissible, we need not address t his argument.