OPINION
STATEMENT OF THE CASE
Daryl Burnett, Jr., appeals his convictions, following a jury trial, for Kidnapping, a Class A felony, and Robbery, as a Class B felony. Burnett presents two issues for review:
1. Whether the trial court abused its discretion under Indiana Evidence Rule 702 when it allowed the State's fingerprint expert to testify as an expert at trial.
2. Whether the State presented sufficient evidence to sustain Burnett's convictions.
We affirm.
FACTS AND PROCEDURAL HISTORY
On May 6, 2003, an African American male approached Vicki Quilhot as she was getting out of her vehicle in the parking lot of the Glenbrook Mall in Fort Wayne. The perpetrator ordered Quilhot to get back into her car and showed her his gun. He then sat in the back seat directly behind Quilhot and adjusted the rear-view mirror so that she could not see him. The man told Quilhot that he wanted $500 and went through her purse. He took $250 in cash out of the purse and then told Quilhot that he would kill her if she did not give him more money.
Next, the man gave Quilhot her checkbook and had hеr write two checks, one for $250 and another for $500. He then ordered her to drive to Bank One and cash the $500 check. At some point, the man moved into the front passenger seat. En route to the bank, the man reclined the front seat and ordered Quilhot to drive in the drive-through lane farthest from the building. After she cashed the check at the drive-through window, Quilhot drove back to the mall parking lot, where the man searched her trunk and then ordered her to walk toward the J.C. Penney store. Quilhot complied and asked the first person she saw to call the police.
Quilhot described the perpetrator as a small, young, African American male with no facial hair who had a small black gun. A Fort Wayne police officer prepared a six-person photograph array, but Quilhot could not make a positive identification. She did point to one man whom she thought "might be" the perpetrator, Transcript at 190, but that mаn was not Burnett. 1
During their investigation, police officers lifted a partial latent fingerprint from the rear-view mirror of Quilhot's vehicle. At trial, Eric Black, a latent fingerprint examiner with the Fort Wayne Police Department, testified, over Burnett's objection,
DISCUSSION AND DECISION
Issue One: Fingerprint Evidence
Burnett asserts that the trial court abused its discretion when it allowed Black to give his opinion that Burnett's fingerprint matched the partial latent print that police found on Quilhot's rear-view mirror. Specifically, Burnett contends, "Not only did Black lack the credentials and experience to be deemed an expert, but there was a complete failure to establish the reliability of the methоdology used to properly compare known and unknown fingerprints." Brief of Appellant at 7 (footnote omitted). We address those arguments in turn.
A trial court has broad discretion in ruling on the admissibility of evidence, and absent an abuse of discretion, we will not disturb the trial court's decision. Schmid v. State,
A. Qualified Expert under Rule 702(a)
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opiniоn or otherwise." Ind. Evid. R. 702(a). Our supreme court has stated, "Under this rule, a witness may be qualified as an expert by virtue of 'knowledge, skill, experience, training, or education'" Kubsch v. State,
Here, Black testified that he was currently employed with the Fort Wayne Police Department in the Police Laboratory as a full-time latent fingerprint examiner. Black stated that he had held that position for "a little over two years." Transcript at 266. In response to the State's question regarding what has prepared him for his current position as a latent fingerprint examiner, Black stated in relevant part:
Prior to coming to the laboratory in 2001, I was a commissioned police office[r] for the Fort Wayne Police Department for twenty years. The last six years of that I spent as a crime seene manager, as a Sergeant in the crime scene management division. I was certified as a senior crime scene analyst. I'm certified as a medical death investigator for the State of Indiana.... The other training I had when I cаme into the laboratory was such that it was a two[-lyear training program. For the first year I dealt with classification and the filing of fingerprints. I looked at a lot of fingerprints, studied them, ridge detail, forscopy (phonetic), things like that. I studied powdering and lifting of fingerprints[,] [elhemical methods of developing fingerprints[,] and then in thesecond year I went into a supervised probation of my work, working in the laboratory with two ... latent print examiners.
Id. at 266-67. In addition, Black testified that he hаs attended various schools and conferences regarding fingerprints, including the following: three annual conferences of the International Association for Identification ("IAI"); a course in basic fingerprint identification through the Bureau of Criminal Identification in Ohio; a course in chemical processing of fingerprints through the Public Ageney Training Council; and a course in Advanced Latent Fingerprint Procedures through IAI in Battlecreek, Michigan. Black also stаted that he has testified in court as an expert in fingerprint comparison on one previous occasion.
At that point, the State moved the trial court to certify Black as an expert in fingerprints and fingerprint identification. Burnett's counsel sought and received permission to ask preliminary questions of Black, during which he established in relevant part that: (1) Black was not certified as a latent fingerprint examiner because he had not read certain books necessary to take the examination, nor had he been in the field for the requisite period of time to sit for the examination; and (2) during the previous trial in which he testified as a fingerprint expert, he testified that there were no fingerprints on a weapon.
Additionally, as we discuss more fully in subsection B, infrg, Burnett's counsel asked Black questions about the methodology he used to identify the fingerprint in this case, namely, the ACE-V method, which is an acronym for "analysis, compar-39 ison, evaluate, and verify." Transcript at 304. Specifically, Black stated that he learned the ACE-V method during the courses he took from the Bureau of Criminal Identification in Ohio and the Advanced Latent Fingerprint Procedures course in Michigan. But Black did not know whether the Federal Bureau of Investigation utilizes the ACE-V method, nor did he know the error rate for the ACE-V method. Burnett argued that Black was not a qualified expert, and the trial court disagreed. In pаrticular, the trial court certified Black as an expert and explained its ruling as follows:
Alright. T'll find that based upon his extensive experience and broad based training, including two specialized trainings on identification of fingerprints, together with a number of other educational programs that would supplement that effort to identify fingerprints, that is ... his training and experience in collecting fingerprints, classifying fingerprints all tend to supplement the ultimate issue of identification, in spite of great efforts that counsel made during eross[-examination] of the witress to discount those are all necessary supplements to his training and experience such that he is entitled to testify as an expert.
Transcript at 306-07.
To support his assertion that the trial court abused its discretion when it certified Black as an expert, Burnett focuses primarily on testimony he elicited from Black while his attorney asked preliminary questions at trial. For example, hе claims the trial court erred when it certified Black as an expert because: (1) Black is not a certified latent fingerprint examiner; (2) when Black previously testified as a fingerprint expert, he was not required to identify or compare prints; and (3) Black could not answer certain questions about the ACE-V methodology. But the trial court heard all of that evidence and determined that based on his experience and training, Black was a qualified expert in fingerprint identification. Again, we will
B. Reliability of Black's Methodology
Under Rule 702(b), "[elxpert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable." When determining whether scientific evidence is admissible under Rule 702(b), we consider the factors discussed in Daubert v. Merrell Dow Pharm., Inc.,
Our suprеme court has determined that "the concerns driving Daubert coincide with the express requirement of Indiana Rule of Evidence 702(b) that the trial court be satisfied of the reliability of the scientific principles involved." Steward v. State,
Rule 702(b) requires thаt the court be "satisfied" of the reliability of the underlying scientific principles. The trial court determines preliminary questions with respect to the admissibility of expert testimony under Rule 104(a), which imposes a burden of proof by a preponderance of the evidence. Accordingly, for expert scientific testimony to be admitted under Rule 702(b), the proponent of the testimony must persuade the trial court that it is more likely than not that the scientific princiрles upon which the testimony rests are reliable. ©
Initially, although the State does not argue waiver, our review of the transcript shows that Burnett failed to preserve his challenge to the reliability of the ACE-V methodology under Rule 702(b) because he did not raise a specific objection under Rule 702(b) at trial. See Burge v. Teter,
As we have explained, Black testified at trial regarding his background, training, and experience. The State then asked the trial court to certify him as an expert in fingerprint identification. Thereafter, Burnett's counsel asked a series of preliminary questions regarding Black's training, experience, and the ACE-V methodology Black uses when he identifies fingerprints. After additional questions regarding, among other things, Black's knowledge of the ACE-V method, the trial court asked the State whether it had further questions on redirect "on the area of [Black's] expertise." Transcript at 288. The State asked a few more questions, and Burnett's counsel followed up with more preliminary questions. At the conclusion of preliminary questions, Burnett's counsel argued to the trial court in relevant part as follows:
Judge, ... I believe they are going to ask him opinions in regards to latent prints and known rolled prints and ask if they are a match or not. I'm going to object to that and I object to it now. He is not qualified, he does not have the scientific training and background as an expert. [If] you look at what he has said, the methodology that he used, he doesn't know if that's accepted throughout the [clоuntry. He only knows that's the method that he was taught. If he doesn't know if that method is acceptable, it doesn't pass the Frye test. I understand Frye is not there, but if he doesn't know if it's acceptable, it also doesn't pass the [Dawbert ] test dealing with whether or not that methodology is the methodology that results in a true and accurate opinion.... For the [Dau-bert ], you've got to have a methodology so you can test the truth or falseness of something. You can't test the truth or falseness from his situation when he can't even tell me the different methodology and can't tell me if somethingthat's known methodology such as the FBI uses the same methodology that he is using and that he's been taught. He claims as an expert a person by the name of Ashbaugh who talks about rid-geology then he tells me ridgeology is not the same as ACE-V but it's somehow related.... His college course from anything he has said and I didn't ask him, doesn't deal with fingerprint identification. He's attended а few seminars and works in the lab. He worked in the lab with in[-lhouse training prior to, three or four months before he ever attended any class, and then he attended. various classes and he can't tell me the methodology and therefore, I'd say he doesn't qualify as an expert, [and] he should not be able to give an opinion under 702 and 708 and there we have it.
Transcript at 302-08 (emphases added). Later during the bench conference regarding the admissibility of Black's testimony, Burnett's counsel again suggested that, based on Black's testimony, the ACE-V methodology cannot be tested for truthfulness. But when the trial court ruled on Burnett's objection, it determined only that Black was qualified to give expert testimony based on his experience and training. The court did not address whether the ACE-V methodology was reliable under Rule 702(b). After the ruling, Burnett's counsel did not ask for clarification, nor did he ask the court to rule specifically whether the State had estаblished the reliability of the ACE-V methodology under Rule 702(b). ‘
Based on our review of the relevant portions of the transcript, it is clear that the trial court understood that Burnett was objecting to Black's testimony on the grounds that Black was not a qualified expert, and we agree with that interpretation of Burnett's objections and arguments. Although Burnett's counsel discussed certain aspects of the requirements in Daubert, counsel's objections and arguments, in the end, repеatedly focused on Black's lack of knowledge and/or experience. Because Burnett did fot expressly challenge Black's testimony under Rule 702(b), he has waived that argument for purposes of his appeal.
Waiver notwithstanding, we agree with the State that Black's testimony sufficiently established the reliability of the ACE-V methodology for purposes of Rule 702(b). Although not controlling, Black's testimony touches on at least one of the Daubert factors: whethеr the theory has been generally accepted within the relevant field of study. See Kubsch,
A: Yes I do.
Q: Can you give me a name of a few?
A: There is a gentleman associated with the Royal Canadian Mounted Police [whose] name is David Ash-baugh. John Vanderkolk with the Indiana State Police, who is also an expert in terms of fingerprints and fingerprint comparison. He is their lab manager. David Green who is the Illinois State Police Laboratory manager. He is their instructor and their chief examiner. There are several.
Transeript at 286-87. Black later explained that Ashbaugh was the author of a textbook entitled Qualitative and Quantitative Analysis. -
Further, although the reliability of the ACE-V methodology has not been established in Indiana state courts, the federal courts in our state have determined that the methodology is reliable under Federal Rule of Evidence 702. See United States v. Havvard,
Issue Two: Sufficiency of the Evidence
Burnett also asserts that the State presented insufficient evidence to support his convictions for kidnapping and robbery. In reviewing a sufficiency of the evidence claim, we neither reweigh the evidence nor assess the credibility of the witnesses. Love v. State,
A person who knowingly or intentionally confines another person while hijacking a vehicle commits kidnapping, a Class A felony. See Ind.Code § 35-42-3-2(@)@). A person who knowingly or intentionally takes property from another person or from the presence of another person by using or threatening the use of force on any person commits robbery, as a Class B felony. See Ind.Code § 85-42-5-1(1).
Burnett argues that without Black's testimony regarding the fingerprint evidence, the State could not prove his identity as the perpetrator. Accordingly, Burnett's sufficiency argument hinges upon the success of his claim that the trial court erred when it admitted Black's testimony. We have already determined that the court did not abuse its discretion in that regard.
Additionally, Quilhot's testimony established all of the еlements necessary to convict Burnett except his identity. In particular, she testified that a man confined her in her car, took money from her purse, forced her to write two checks, and then made her drive to a bank and cash those checks. Throughout these events, the man was pointing a gun at Quilhot, and he threatened to kill her if she did not comply. Finally, Black's testimony that the partial fingerprint lifted from Quilhot's rear-view mirror matched Burnett's fingerprint was sufficiеnt to establish Burnett as the perpetrator. We conclude that the
Affirmed.
Notes
. At that point, the detective who had prepared the photo array pointed to Burnett's photo, told Quilhot that that man was a suspect in other cases, and asked Quilhot if he looked familiar. Quilhot responded "no." Transcript at 177. At trial, Burnett successfully moved to suppress Quilhot's in-court identification of him based on what the trial court described as the detective's "improper" actions during the photo array. Id. at 181.