FILED
Apr 09 2018, 5:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General
Appellate Division
Indianapolis, Indiana Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
K.K., April 9, 2018
Appellant-Respondent, Court of Appeals Case No.
49A02-1710-JV-2274
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marilyn A. Moores,
Appellee-Petitioner Judge
The Honorable Geoffrey A. Gaither,
Magistrate
Trial Court Cause No.
49D09-1703-JD-395
Crone, Judge.
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Case Summary
[1] K.K. appeals his 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 argues 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, Jesus Morales returned to his home and found it in
disarray; some of his possessions had 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 the rear bedroom window because it was
unlocked and the blinds were raised.
[3] Indianapolis Police Officer Brian Wills photographed the crime scene and
inspected it for fingerprints. He recovered three fingerprints from a television in
the master bedroom using fingerprint tape 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 two fingerprints from the outside sill of the window
believed to be the point of entry and created another latent print card,
subsequently identified as State’s Exhibit 11. Officer Wills logged Exhibits 10
and 11 in the latent print database1 with the case information (when, where,
1
The record does not otherwise identify the database in which Officer Wills logged Exhibits 10 and 11.
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and by whom the latent prints were recovered). The database generated a latent
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 had been a latent print examiner for thirteen and a half years
and had received training in basic latent print identification, complex latent
print identification, and analysis of distortion in latent prints. To identify the
fingerprints, she used the ACE-V method (analysis, comparison, evaluation,
and verification). Pursuant to that method, she searched for comparable
fingerprints in the Marion County Automatic Fingerprint Identification 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, and 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 subsequently approved, a
delinquency petition alleging that sixteen-year-old K.K. committed acts that
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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 State filed a motion to require K.K. to submit to
fingerprinting, which the 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 Wills 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 admission of Exhibit 12 and moved to suppress any
testimony based on it. In support, K.K. argued that the Database Fingerprints
were illegally obtained and retained “as far as we know” because the State had
not demonstrated that they complied with the applicable statutes, and thus any
evidence obtained from using the Database Fingerprints was the “fruit of the
poisonous tree.” Id. at 30-31. 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 that based on her experience as an expert
in the field, three fingerprints 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 right
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thumbprint on Exhibit 12. Id. at 39. The State did not seek to admit the
Database Fingerprints.
[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 appeals.
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
the 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 appeal 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
were inadmissible because the State was unable to establish that the Database
Fingerprints were taken in compliance with Indiana Code Sections 31-39-5-
1(a), -3, -4, and -5 (“the Juvenile Fingerprinting Statutes”). Indiana Code
Section 31-39-5-1(a) permits law enforcement to take and file the fingerprints or
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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-
39-5-3 states that if “(1) latent fingerprints are found during 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 compare the child’s fingerprints with the latent fingerprints.” Section
31-39-5-4(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 into custody and no petition was filed against the child; (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 31-39-5-4(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 31-39-5-5 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 Section
31-9-5-4 and to “comply with any request for destruction or surrender of the
records not later than sixty (60) days of the request.”
[10] At the 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 Database
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Fingerprints were taken in 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. Also,
O’Neil’s testimony was based on a comparison of the fingerprints 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 challenge 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. We 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 they
were taken in compliance with the Juvenile Fingerprinting Statutes as a
prerequisite for the admissibility for Exhibit 12 and testimony based on it
(which in all other respects constitute admissible fingerprint evidence).
[12] There may be circumstances that would require the State to prove that
fingerprints used to establish probable cause were taken and stored in
compliance with the Juvenile Fingerprinting Statutes, for 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 courts have rarely had occasion to address these Statutes, in J.B.
v. State, 868 N.E.2d 1197 (Ind. Ct. App. 2007), trans. denied, another panel of
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this court addressed a juvenile’s specific challenge to the State’s compliance
with Section 31-39-5-2.2
[13] The facts 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 matching 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 adhere to the requirement of
Section 31-39-5-2 that fingerprint 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 juvenile records will not be able to access the latter while accessing the
former.” 868 N.E.2d at 1200. The 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.
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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 31-39-5-2. Id. at 1201.
Ultimately, the J.B. court determined that the State’s noncompliance 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 31-39-5-1, 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 31-39-5-2. 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 discretion in admitting Exhibit 12 and
3
We observe that K.K. has a history of juvenile 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 theft 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 31-39-5-1(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 31-39-5-4(b).
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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
evidence. Because we have found the fingerprint evidence admissible, we need not address this argument.
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