IN THE
Court of Appeals of Indiana Benjamin C. Taylor, FILED Appellant-Defendant Jun 05 2024, 10:20 am
CLERK Indiana Supreme Court v. Court of Appeals and Tax Court
State of Indiana, Appellee-Plaintiff
June 5, 2024 Court of Appeals Case No. 23A-CR-1625 Appeal from the Jackson Circuit Court The Honorable Chris D. Monroe, Senior Judge Trial Court Cause No. 36C01-2007-F2-000020 36C01-2101-F6-000028
Opinion by Judge Felix Chief Judge Altice and Judge Bradford concur.
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 1 of 26 Felix, Judge.
Statement of the Case [1] The day before Thanksgiving 2019, Benjamin Taylor stole Josefina Gonzalez-
Quintana’s vehicle from her driveway. The next day, he drove the stolen car to
an apartment complex near Dustin and Brooklyn Reynolds’s newly purchased
home. There, Taylor broke and entered the home through a doggy-door, and
prepared to steal several items and did steal other items. The State charged
Taylor for these crimes under two separate cause numbers, which were later
joined for trial. A jury convicted Taylor of two out of three charges, and the
trial court sentenced him to a total of 45 years in the Indiana Department of
Correction. Taylor now appeals and presents four issues for our review, which
we revise and restate as the following three issues:
1. Whether the trial court abused its discretion by refusing to sever the two separate causes; 2. Whether the trial court abused its discretion in admitting certain evidence at trial; and 3. Whether the trial court erred in denying Taylor’s motion to set aside the verdict.
[2] We affirm.
Facts and Procedural History [3] On the morning of November 27, 2019, in Seymour, Indiana, Gonzalez-
Quintana started up her grey Chevrolet Malibu so it would be warm when she
left for work. After starting the car, she went back inside her home. When
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 2 of 26 Gonzalez-Quintana came back outside, her car was missing; she did not see
who took it. Gonzalez-Quintana reported the Malibu stolen that morning.
[4] The next day, November 28, 2019, Brooklyn and Dustin Reynolds left their
recently purchased home in Seymour, Indiana early that morning and returned
at approximately 11:00 or 11:30 a.m. After pulling into their driveway, Dustin
opened the garage door using an automatic opener. As the garage door was
going up, the Reynoldses noticed that the back door of the garage appeared to
have been kicked open while they were away. The Reynoldses then got out of
their truck, and as they were shutting the truck doors, a man walked out of their
house and into their garage. Approximately three seconds after the Reynoldses
first saw the man, he covered his face with a mask. With a foot-long
screwdriver in one hand, he approached the driver side of the Reynoldses’ truck
where Dustin was standing and held the screwdriver in a “stabbing manner,”
Tr. Vol. III at 148, but did not strike Dustin. The man then walked away on
foot. Brooklyn called 911.
[5] Once officers arrived and cleared the house, the Reynoldses began walking
through their property with the officers. When they entered the house, they
discovered a rug was rolled up in the middle of the living room with Brooklyn’s
laptop and a cord inside it. Brooklyn’s keys were missing from their usual spot
on the kitchen table. Some of the Reynoldses’ moving boxes in the living room
were also open and the contents of other containers were in disarray, but
nothing else appeared to be missing.
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 3 of 26 [6] Outside of the back door to the garage, they discovered a black puffy jacket and
car keys on a lanyard, none of which belonged to the Reynoldses. The car keys
had a Chevrolet emblem. Seymour Police Department (“SPD”) Officer Gilbert
Carpenter collected the jacket and placed it in an evidence bag along with a pair
of safety glasses and a lighter that had been on top of the jacket. At that time,
Officer Carpenter did not feel any hard items within the jacket, so he did not go
through the jacket’s pockets.
[7] Officer Carpenter also collected the car keys, but instead of placing those in an
evidence bag, he handed them to SPD Sergeant Ryan Huddleston. Sergeant
Huddleston then had SPD Officer Derek Shelley drive around the area while
pressing the alarm button on the key fob to locate the vehicle. While searching
about two to three blocks away from the Reynoldses’ house, a person
approached Officer Shelley and asked if he was looking for a Chevrolet Malibu
that was parked at an apartment complex. Officer Shelley learned the
Chevrolet Malibu had been reported stolen and belonged to Gonzalez-
Quintana. Officer Shelley was able to unlock the Malibu’s driver side door with
the car keys recovered from the Reynoldses’ house. Officer Shelley did not
enter the Malibu. Instead, he had it towed to the SPD for further investigation.
[8] Approximately 20 minutes after officers left the Reynoldses’ house, the
Reynoldses discovered that Dustin’s work boots were missing and a pair of
Puma tennis shoes had been left in the living room. Brooklyn called law
enforcement, and Officer Carpenter returned and collected the shoes.
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 4 of 26 [9] Officer Carpenter relied on his body camera to video his investigation; he did
not take any photographs with a separate camera. Due to an issue with SPD’s
computer server, Officer Carpenter’s body camera video from his investigation
of the incident at the Reynoldses’ home was irretrievable.
[10] As part of the investigation, the jacket, safety glasses, Puma shoes, and swabs
from the Malibu were sent to the Indiana State Police Laboratory (the “ISP
Lab”) for testing. In March 2020, the ISP Lab notified SPD Lieutenant C.J.
Foster that DNA recovered from one of those items matched Taylor’s DNA.
Consequently, on May 19, 2020, Lieutenant Foster met with the Reynoldses at
the SPD to show them photo arrays that included Taylor’s picture. Brooklyn
identified Taylor as the person she saw exiting her home and approaching
Dustin on November 28, 2019. Dustin did not definitively identify Taylor but
did state he looked familiar.
[11] On July 10, 2020, the State charged Taylor with burglary as a Level 2 felony1
and armed robbery as a Level 3 felony2 (the “Burglary Cause”) in connection
with the November 28, 2019, events at the Reynoldses’ home. Ten days later,
Lieutenant Foster obtained DNA from Taylor pursuant to a warrant, and he
submitted that DNA to the ISP Lab for analysis and comparison to DNA
present on the submitted items. Julie Mauer, a forensic DNA analyst with the
1 Ind. Code §§ 35-43-2-1, 35-43-2-1(3)(A). 2 Id. § 35-42-5-1(a)(2).
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 5 of 26 ISP Lab, determined that the majority of the DNA she found on the yellow
glove, Puma shoes, and swabs from the Malibu belonged to Taylor.
[12] In January 2021, the State charged Taylor with auto theft as a Level 6 felony3
(the “Auto Theft Cause”) in connection with the November 27, 2019, theft of
Gonzalez-Quintana’s Malibu, under a different cause number. On July 15,
2021, the State filed a Motion for Joinder of Causes for Purposes of Trial (the
“Joinder Motion”), requesting to have a single trial for the Auto Theft Cause
and the Burglary Cause. Taylor filed an objection to the Joinder Motion. After
a hearing, the trial court granted the Joinder Motion without entering findings
or conclusions.
[13] A few weeks before trial, Officer Carpenter and Lieutenant Foster retrieved the
black puffy jacket from evidence and laid it out for the parties to inspect in
preparation for trial. At that time, a soft yellow glove was in the same evidence
bag as the jacket. Officer Carpenter did not observe the yellow glove when he
initially collected the jacket from the Reynoldses’ property.
[14] On January 31, 2023, Taylor’s jury trial began. The jury found Taylor guilty of
burglary as a Level 2 felony and of auto theft as a Level 6 felony, but the jury
found Taylor not guilty of armed robbery. The jury also found that Taylor was
a habitual offender. On April 17, 2023—before his sentencing hearing—Taylor
filed a motion to set aside the verdict based on allegedly false testimony from
3 Id. §§ 35-43-4-2(a), (a)(1)(B)(ii).
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 6 of 26 SPD officers concerning the computer server crash that resulted in the loss of
Officer Carpenter’s body camera video. After a hearing, the trial court denied
Taylor’s motion. Thereafter, the trial court sentenced Taylor to a total
aggregate sentence of 45 years executed at the Indiana Department of
Correction. This appeal ensued.4
Discussion and Decision
1. The Trial Court Did Not Err by Refusing to Sever the Auto Theft Cause from the Burglary Cause
[15] Taylor frames his argument that the trial court abused its discretion in granting
the Joinder Motion. Once the trial court granted the Joinder Motion over
Taylor’s objection, proper procedure required him to file a motion for
severance, which he did not do. See Ennik v. State, 40 N.E.3d 868, 875 (Ind. Ct.
App. 2015) (citing Ind. Code § 35-34-1-12(a)), trans. denied; Evans v. State, 542
N.E.2d 546, 549 (Ind. 1989) (citing I.C. § 35-34-1-12(a); Muse v. State, 419
N.E.2d 1302, 1305 (Ind. 1981)). However, Taylor did “renew” his objection to
the State’s joinder motion at the beginning of trial for the sole purpose of
“preserv[ing] any issues for appeal.” Tr. Vol. II at 163. There is precedent for
concluding that this issue is waived due to Taylor not making another objection
4 We initially observe that Taylor fails to provide citations to the record for statements of fact in his Argument, which is a violation of Appellate Rule 46(A)(8)(a). Appellant’s Br. at 22–23, 26–28, 32, 36–37, 39, 41. In further violation of Appellate Rule 46(A)(8)(a), Taylor fails to provide citations for statements of law in his Argument. Appellant’s Br. at 40–41. However, Taylor’s noncompliance with Appellate Rule 46 does not substantially impede our review of his claims, so we choose to address the merits thereof. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015).
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 7 of 26 or moving for severance during trial, see I.C. §§ 35-34-1-11(a), -12(a); Ennik, 40
N.E.3d at 875 (citing I.C. § 35-34-1-12(b)). Here, the State has not argued the
issue is waived. Additionally, we believe that Taylor’s opposition to the
Joinder Motion as well as his renewed objection on the first day of trial is
sufficient to have the issue reviewed on its merits. On the facts of this case, we
deem Taylor’s renewed objection to the Joinder Motion to be a motion for
severance.
[16] When at least two offenses “have been joined for trial . . . on the ground that
they are of the same or similar character, the defendant shall have a right to a
severance of the offenses.” I.C. § 35-34-1-11(a). Neither party here contends
that the Burglary Cause and Auto Theft Cause were joined on the basis that
they are of the same or similar character; therefore, severance is not a matter of
right in this case. Taylor may still have been entitled to severance under
Indiana Code section 35-34-1-11(a), which provides in relevant part that
the court . . . shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 8 of 26 Because Taylor was required to request a severance of the joined offenses, we
conclude that the issue is more properly framed as whether the trial court
should have granted the request to sever. We review a trial court’s refusal to
sever charges under these circumstances for an abuse of discretion. Craig v.
State, 730 N.E.2d 1262, 1265 (Ind. 2000) (citing Kahlenbeck v. State, 719 N.E.2d
1213, 1216 (Ind. 1999)).
[17] This case involved three charges. The evidence primarily consisted of the
testimony of the three victims and the law enforcement officers who
investigated the crimes. Taylor has not demonstrated that the evidence was
complex or that the jury would have had difficulty distinguishing the evidence
and applying the law intelligently to each count. Therefore, we cannot say the
trial court abused its discretion in refusing to sever the Burglary Cause from the
Auto Theft Cause.
2. The Trial Court Did Not Abuse Its Discretion by Admitting the Yellow Glove and Testimony Regarding Pre-Trial Identifications
[18] Taylor argues that the trial court abused its discretion in admitting certain
evidence at trial. “The trial court has broad discretion to rule on the
admissibility of evidence.” Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017).
We review evidentiary rulings for an abuse of discretion, which occurs when
the ruling is “clearly against the logic and effect of the facts and circumstances.”
Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014) (citing Turner v. State, 953 N.E.2d
1039, 1045 (Ind. 2011)). Moreover, we may affirm an evidentiary ruling on any
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 9 of 26 theory supported by the evidence. Satterfield v. State, 33 N.E.3d 344, 352 (Ind.
2015).
[19] In particular, Taylor argues the trial court abused its discretion when it
admitted (a) the yellow glove, and (b) evidence regarding pre-trial
identifications of Taylor. We address each argument in turn.
a. Yellow Glove
[20] Taylor first challenges the trial court’s admission of the yellow glove at trial;
specifically, Taylor argues the yellow glove lacked a sufficient chain of custody.
Taylor does not challenge the yellow glove’s chain of custody after it arrived at
the ISP Lab, so we limit our review accordingly.5 We also observe that the
record is devoid of any information regarding the nature of Taylor’s objection
to admission of the yellow glove at trial.6
5 Pursuant to Indiana Appellate Rule 46(A)(8)(d), Taylor must cite “to the pages of the Transcript where the evidence was identified, offered, and received or rejected.” Taylor does not cite the pages of the Transcript where the State offered and the trial court admitted the yellow glove into evidence at trial. See Appellant’s Br. at 29–32. We remind counsel that the purpose of our appellate rules—especially Appellate Rule 46 governing the content of briefs—“is to aid and expedite review and to relieve the appellate court of the burden of searching the record and briefing the case.” Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (emphasis added) (quoting Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind. Ct. App. 2021)). 6 Taylor cites to page 169 of Volume III of the Transcript for the proposition that he “made a contemporaneous objection at trial.” Appellant’s Br. at 31. A review of that page of the Transcript reveals that the State was questioning Officer Carpenter about the parties’ pre-trial examination of the physical evidence when Taylor objected and a bench conference occurred. There is no transcription of the bench conference. We do not know if Taylor objected to the yellow glove and if so, on what grounds. However, on appeal, the State does not claim Taylor waived this issue for our review by failing to raise a proper objection at trial, see Appellee’s Br. at 38–40, so we address the merits of Taylor’s claim.
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 10 of 26 [21] When offering evidence, the State “need only provide ‘reasonable assurance’
that the evidence passed through various hands in an undisturbed condition,
and need only provide evidence that ‘strongly suggests’ the exact whereabouts
of the evidence at all times.” Kennedy v. State, 578 N.E.2d 633, 639 (Ind. 1991)
(quoting Russell v. State, 489 N.E.2d 955, 957 (Ind. 1986)). That is, “the State
need not establish a perfect chain of custody, and any gaps go to the weight of
the evidence and not its admissibility.” Speers v. State, 999 N.E.2d 850, 855
(Ind. 2013) (quoting Kennedy, 578 N.E.2d at 639). To successfully challenge the
chain of custody established by the State, the defendant must present evidence
that raises more than a “mere possibility that the evidence could have been
tampered with or that a substitution or alteration could have been made.”
Kennedy, 578 N.E.2d at 639 (quoting Gambill v. State, 479 N.E.2d 523, 529 (Ind.
1985)); Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002) (citing Cliver v. State,
666 N.E.2d 59, 63 (Ind. 1996)).
[22] “The extent of foundation the State must lay depends on whether the item to be
admitted is fungible or nonfungible.” K.W. v. State, 216 N.E.3d 505, 516 (Ind.
Ct. App. 2023) (citing Dudley v. State, 480 N.E.2d 881, 898 (Ind. 1985)), trans.
denied, 228 N.E.3d 1019 (Ind. 2024). The yellow glove is clearly a “nonfungible
item.” See K.W., 216 N.E.3d at 516 (quoting Mateo v. State, 981 N.E.2d 59, 67
(Ind. Ct. App. 2012)) (explaining “fungible items” include “blood and drugs”
and “nonfungible items” include “guns and vehicles”); Lucas v. State, 413
N.E.2d 578, 582 (Ind. 1980) (concluding blood spots on clothing did not
convert that clothing from “nonfungible items” to “fungible items”). “[F]or
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 11 of 26 ‘nonfungible items, the State need only show that the item is what it is
purported to be and that it is in a substantially unchanged state’ from when it
was initially collected by police.” K.W., 216 N.E.3d at 516 (quoting Mateo, 981
N.E.2d at 67); see also Scherer v. State, 563 N.E.2d 584, 586 (Ind. 1990) (citing
Dudley v. State, 480 N.E.2d 881 (Ind. 1985), cert. denied, 490 U.S. 1011 (1989)).
If the nonfungible item “passed through numerous hands, the State does not
need to exclude all possibility of tampering but instead must provide reasonable
assurance that the evidence remained in an undisturbed condition.” Scherer,
563 N.E.2d at 586 (citing Simmons v. State, 504 N.E.2d 575 (Ind. 1987)). We
also presume that officers exercise due care in handling their duties. Troxell,
778 N.E.2d at 814.
[23] Here, Officer Carpenter testified that he did not observe the yellow glove when
he initially collected the jacket from the Reynoldses’ property but that he did
not check the jacket’s pockets because a general pat-down of it revealed there
were no hard objects within. Officer Carpenter placed the black jacket in a
paper bag that he sealed and that was kept in SPD’s secure evidence locker until
it was transported to the ISP Lab for testing. When Mauer opened that sealed
bag at the ISP Lab—which was documented as only containing the black
jacket—the yellow glove was in it as well.
[24] On these facts, the State provided evidence that strongly suggested the exact
whereabouts of the yellow glove at all times—namely, in the sealed bag
containing the black jacket—and that it was not disturbed when it passed from
the SPD to the ISP Lab. Therefore, we cannot say that the trial court abused its
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 12 of 26 discretion by admitting the yellow glove into evidence at trial. Any lack of
chain-of-custody goes to weight, not admissibility.
b. Pre-Trial Identifications
[25] Taylor next challenges the admission of “the Reynolds identification evidence.”
Appellant’s Br. at 36. In the absence of Taylor specifying exactly what
testimony or exhibits make up “the Reynolds identification evidence,” we limit
our review of the admission of Exhibits 7, 18, 19, 28, and 29.7
[26] Exhibit 7 was the photo array Lieutenant Foster showed to Brooklyn on May
19, 2020, and from which she identified Taylor as the man she saw at her home
on November 28, 2019. Exhibits 18 and 19 are lists of the identities of the
individuals’ photos the SPD used in the photo arrays shown to the Reynoldses.
Exhibits 28 and 29 are higher quality reproductions of the photo arrays
Lieutenant Foster showed to the Reynoldses on May 19, 2020.
7 Taylor does not expressly state which evidence he believes the trial court erroneously admitted. However, in support of his statement that he “made a contemporaneous objection to the identification information at trial,” Taylor cites several pages of the Transcript. Appellant’s Br. at 34 (citing Tr. Vol. III at 75–76, 128; Tr. Vol. IV at 63, 65, 117). Those particular pages show that Taylor objected to Exhibits 7, 18, 19, 28, and 29, but there is no indication about what Taylor’s bases were for those objections because the bench conferences—during which we presume Taylor set forth the reasons for his objections—are not transcribed. Again, the State does not argue that Taylor failed to properly object to the admission of Exhibits 7, 18, 19, 28, and 29 at trial, so we address the merits of Taylor’s claim. Additionally, in violation of Appellate Rule 46(A)(8)(d), Taylor does not cite the pages of the Transcript where Exhibits 18, 19, 28, and 29 were identified or where the State offered and the trial court admitted Exhibits 28 and 29. We remind counsel that this court should not have to search the record to find a basis for a party’s argument. Carter ex rel. CNO Fin. Grp., Inc. v. Hilliard, 970 N.E.2d 735, 755 (Ind. Ct. App. 2012) (citing Nealy v. Am. Family Mut. Ins., 910 N.E.2d 842, 845 n.2 (Ind. Ct. App. 2009), trans. denied).
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 13 of 26 [27] Taylor specifically argues that the photo arrays Lieutenant Foster showed to the
Reynoldses on May 19, 2020, were impermissibly suggestive. As our Supreme
Court has explained:
The Due Process Clause of the Fourteenth Amendment requires suppression of testimony concerning a pre-trial identification when the procedure employed is impermissibly suggestive. Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999); Parker v. State, 698 N.E.2d 737, 740 (Ind. 1998); James v. State, 613 N.E.2d 15, 27 (Ind. 1993). A photographic array is impermissibly suggestive if it raises a substantial likelihood of misidentification given the totality of the circumstances. Harris, 716 N.E.2d at 410.
A trial court considers certain factors to evaluate the likelihood of a misidentification: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; and (4) the level of certainty demonstrated by the witness. James, 613 N.E.2d at 27.
Williams v. State, 774 N.E.2d 889, 890 (Ind. 2002). A court may also consider
“(1) the manner and form in which the police asked the witness to identify the
suspect and the witness’s interpretation of their directives and (2) whether the
police focused on the defendant as the prime suspect, either by their attitude or
the makeup of the photo array.” Parker, 698 N.E.2d at 740 (citing Bell v. State,
622 N.E.2d 450, 454 (Ind. 1993), overruled on other grounds by Jaramillo v. State,
823 N.E.2d 1187 (Ind. 2005); Brooks v. State, 560 N.E.2d 49, 55 (Ind. 1990)).
[28] When the Reynoldses returned to their house in the late morning of November
28, 2019, they watched Taylor emerge from their home and look directly at
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 14 of 26 them with his face uncovered. It was not until approximately three seconds
later that the burglar covered his face. From the time Taylor exited the home to
the time he walked away from the Reynoldses, he was always within three to
four yards of them, and they watched him the entire time. When Officer
Carpenter spoke with the Reynoldses on November 28, 2019, Dustin described
the burglar as having dark shaggy hair and wearing a black coat, and Brooklyn
described the burglar as having brown hair and brown eyes and wearing a large
black coat. The Reynoldses also told Officer Carpenter that the burglar was
probably about five feet and six inches tall.
[29] Approximately six months later on May 19, 2020, Lieutenant Foster met with
the Reynoldses at the SPD to show them photo arrays that included Taylor’s
picture. Lieutenant Foster created two different photo arrays—one to show
Brooklyn and one to show Dustin. Both photo arrays used the same six black-
and-white photos, but the photos were in different positions on each array. The
five individuals who were included alongside Taylor in the photo array
substantially resemble Taylor, including their hair cut, facial hair, and face
shape.
[30] Lieutenant Foster showed the Reynoldses the photo arrays separately.
Lieutenant Foster first brought Brooklyn to an interview room by herself, closed
the door, and gave her a set of instructions. Those instructions included telling
Brooklyn that she “shouldn’t conclude that the photos contain someone that
committed a crime,” “shouldn’t conclude that all people in the photographs are
criminals,” was “not obligated to identify somebody if [she] can’t or do[es] not
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 15 of 26 want to,” “it’s important to free innocent people as it [is] to identify guilty
parties,” she should “take into consideration that [a photo] may not depict what
the individual looks like at the present time.” Tr. Vol. III at 62. Brooklyn
identified the person whose photo appeared in the number six slot—Taylor—as
the burglar, and she circled that photo and signed and dated the array.
Lieutenant Foster then had Brooklyn leave the room and brought in Dustin,
closed the door, and gave him the same set of instructions. Dustin stated the
person whose photo appeared in the number two slot—Taylor—was “familiar”
but did not unequivocally identify that person as the burglar. Dustin circled
that photo; wrote “He looks familiar,” above it; and signed and dated the array.
Tr. Vol. VI at 164, 196.
[31] Given the totality of these circumstances, there was not a substantial likelihood
that the Reynoldses misidentified Taylor when they picked him out of the photo
arrays; that is, the photo arrays and procedure used here were not
impermissibly suggestive. Therefore, the trial court did not abuse its discretion
when it admitted Exhibits 7, 18, 19, 28, and 29.
3. The Trial Court Did Not Err by Denying Taylor’s Motion to Set Aside the Verdict
[32] Taylor claims the trial court erred in denying his motion to set aside the verdict
because the State violated his due process rights under the Fourteenth
Amendment to the United States Constitution. Because constitutional claims
raise questions of law, we review such claims de novo. Tiplick v. State, 43
N.E.3d 1259, 1262 (Ind. 2015) (citing Dep’t of State Revenue v. Caterpillar, Inc., 15
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 16 of 26 N.E.3d 579, 587 (Ind. 2014)). Taylor specifically argues that he was denied due
process because (a) the State allegedly destroyed or otherwise failed to preserve
exculpatory video evidence and (b) the State allegedly solicited false or
misleading testimony regarding the loss of that video evidence. We address
each argument in turn.
a. Destruction of or Failure to Preserve Officer Carpenter’s Body Camera Video
[33] Taylor first argues that the loss of Officer Carpenter’s body camera footage
prior to trial is a violation of Brady v. Maryland, 373 U.S. 83 (1963). Under
Brady, a prosecutor’s “suppression of evidence favorable to the accused that is
material either to guilt or punishment violates the Due Process Clause.” Church
v. State, 189 N.E.3d 580, 592 (Ind. 2022) (citing Brady v. Maryland, 373 U.S. 83,
87 (1963)). “Evidence is material when there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” State v. Hollin, 970 N.E.2d 147, 153 (Ind. 2012)
(citing Minnick v. State, 698 N.E.2d 745, 755 (Ind. 1998)). However, “Brady has
no application . . . where the alleged exculpatory evidence no longer exists but
its content was nonetheless revealed through testimony at trial.” Albrecht v.
State, 737 N.E.2d 719, 724 n.2 (Ind. 2000) (quoting Noojin v. State, 730 N.E.2d
672, 676 n.1 (Ind. 2000)).
[34] For example, in Noojin v. State, a draft of a witness’s statement to law
enforcement was destroyed prior to trial, but both the witness and the detective
who took his statement testified at trial about the content of the witness’s
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 17 of 26 statement. 730 N.E.2d at 675. Similarly, in Albrecht v. State, FBI agent Daniel
Craft’s witness interview notes were negligently destroyed before trial, but Craft
testified about the notes’ existence and content at trial, 737 N.E.2d at 723–24;
there was also no evidence the State suppressed the notes, id. at 724 n.2. In
both cases, the Indiana Supreme Court determined that Brady did not apply to
the destroyed evidence because the contents of that evidence were revealed at
trial through testimony. Noojin, 730 N.E.2d at 676 n.1 (citing Williams v. State,
714 N.E.2d 644, 649 (Ind. 1999)); Albrecht, 737 N.E.2d at 724 n.2 (citing Noojin,
730 N.E.2d at 676 n.1).
[35] Here, Officer Carpenter’s body camera footage no longer existed, but he
testified about its contents at trial. Officer Carpenter testified about his
investigation of the burglary and collection of evidence. The Reynoldses’
testimony about the investigation was substantially similar to Officer
Carpenter’s testimony on the subject. Pursuant to our Supreme Court’s
decisions in Noojin and Albrecht, Brady does not apply to the loss of Officer
Carpenter’s body camera video. See Noojin, 730 N.E.2d at 676 n.1. We
therefore analyze Taylor’s due process challenge to the loss of the video under
Arizona v. Youngblood, 488 U.S. 51, 57 (1988) and California v. Trombetta, 467
U.S. 479, 489 (1984).
[36] The State’s destruction of or failure to preserve potentially useful evidence—as
opposed to materially exculpatory evidence—does not constitute a denial of
due process “unless a criminal defendant can show bad faith on the part of” law
enforcement. Youngblood, 488 U.S. at 58 (emphasis added). Therefore, we
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 18 of 26 must first determine whether the evidence in question was “potentially useful
evidence” or “materially exculpatory evidence.” Id. at 57. “Potentially useful
evidence” is evidence about “which no more can be said than that it could have
been subjected to tests, the results of which might have exonerated the
defendant.” Id. (emphasis added). “Materially exculpatory evidence” is
evidence that “possesses an exculpatory value that was apparent before the
evidence was destroyed” and must “be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available
means.” Trombetta, 467 U.S. at 489. Although a defendant is not required to
conclusively prove the destroyed evidence was materially exculpatory, “there
must be some indication that the evidence was exculpatory.” Johnson v. State,
507 N.E.2d 980, 983 (Ind. 1987) (citing Wilson v. State, 432 N.E.2d 30, 32 (Ind.
1982)). “[W]e cannot assume that the destroyed evidence contained
exculpatory material when the record is devoid of such indication.” Id. (citing
Wilson, 432 N.E.2d at 32).
[37] Taylor provides nothing more than speculation about the possible exculpatory
value of Officer Carpenter’s body camera footage. Taylor implies that the video
may have shown that Officer Carpenter improperly handled evidence, but he
does not point to any part of the record that indicates mishandling of evidence
may have occurred here. On this record, we cannot say that Officer Carpenter’s
body camera video had exculpatory value that was apparent before it was lost.
Moreover, Officer Carpenter and the Reynoldses testified about the collection
of evidence from the Reynoldses’ house, which is comparable evidence to the
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 19 of 26 video. Under these circumstances, the video is “potentially useful evidence,”
not “materially exculpatory evidence.” As such, we now turn to whether
destruction of Officer Carpenter’s body camera footage was the result of bad
faith on the part of law enforcement.
[38] Taylor makes no argument on appeal that the loss of the body camera video
here resulted from law enforcement’s bad faith. Thus, Taylor has not carried
his burden of showing bad faith on the part of law enforcement. See Youngblood,
488 U.S. at 58. Because Officer Carpenter’s body camera footage of the
investigation was only potentially useful evidence and Taylor has not
demonstrated that its loss was the result of bad faith on the part of law
enforcement, Taylor’s due process rights were not violated under the
Fourteenth Amendment to the United States Constitution. Therefore, the trial
court did not err by denying Taylor’s motion to set aside the verdict on this
basis.
b. Solicitation of False or Misleading Testimony at Trial Concerning the Loss of Officer Carpenter’s Body Camera Video
[39] Next, Taylor alleges that the State, through Officer Carpenter and Lieutenant
Foster, presented false testimony to obtain his conviction in violation of Napue
v. Illinois, 360 U.S. 264 (1959). “It is well established that ‘a conviction
obtained through use of false evidence, known to be such by representatives of
the State, must fall under the Fourteenth Amendment. The same result obtains
when the State, although not soliciting false evidence, allows it to go
uncorrected when it appears.’” Smith v. State, 34 N.E.3d 1211, 1219 (Ind. 2015)
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 20 of 26 (quoting Napue, 360 U.S. at 269). That is, “a defendant’s Fourteenth
Amendment due process rights are violated when the prosecution knowingly
uses false testimony without disclosing its falsity or attempting to correct it. Id.
(emphasis added) (citing Alcorta v. Texas, 355 U.S. 28, 31–32 (1957); Miller v.
Pate, 386 U.S. 1, 6–7 (1967)).
[40] Taylor specifically alleges that the State solicited false testimony from Officer
Carpenter and Lieutenant Foster concerning the loss of Officer Carpenter’s
body camera video of his investigation of the burglary of the Reynoldses’ home.
In a deposition taken October 8, 2021, Officer Carpenter testified that his body
camera video was “gone” because “[t]here was an issue with our server and our
server crashed.” Appellant’s App. Vol. IV at 206. A few months later at the
hearing on Taylor’s motion to suppress, Officer Carpenter testified that his body
camera footage was “gone” because “the server that keeps those videos had
crashed” and “we were told that it had acted up and crashed the system and
there was [sic] several videos for several cases that had been lost, or they’re
misplaced, or they’ve scrambled the video and it was irretrievable.” Tr. Vol. II
at 52; see also id. at 62. Lieutenant Foster testified that
the server became inoperable, frozen if you will where you couldn’t do anything with – with the computer systems itself and at the time Assistant Chief Craig Hayes went in to attempt to fix the issue and I believe at one point he conducted what they call a hard shutdown of the computer system which is basically flipping the off switch and when the system was turned back on that’s when everything was either lost or scrambled or not legible.
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 21 of 26 Id. at 66. Lieutenant Foster further testified that the SPD had been unsuccessful
in its attempts to recover the lost and scrambled data. Id. at 66–67.
[41] At trial, Officer Carpenter testified that his body camera video was lost because
the SPD “had a large server crash just shortly after” the November 28, 2019,
burglary of the Reynoldses’ house. Tr. Vol. III at 158 (emphasis added).
Officer Carpenter testified that a majority of SPD’s body camera footage “was
lost” and “all scrambled up.” Id. at 160. The following exchange occurred
when Taylor cross-examined Officer Carpenter about the server crash:
Q. [Y]ou said that video downloaded to a Seymour Police Department server, is that correct?
A. Yes.
Q. And law enforcement had exclusive control and possession over that server, is that correct?
A. Yes. Administration would have had control of that. The only control that I have is being able to review the video.
Q. Okay. And actually, the server was physically turned off by the Seymour Police Department is that correct?
A. That I don’t know.
Q. Okay, you don’t . . . know whether it crashed or somebody actually flipped a switch and turned it off?
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 22 of 26 A. I – I have no idea, I just know that they said the server had crashed and they lost a lot of information.
Id. at 196. Similarly, Lieutenant Foster testified at trial that he did not “know if
the server crashed” but he did know “there was [sic] issues with the server and
it was turned off in an attempt to reboot it . . . and something was wrong with
the server.” Tr. Vol. IV at 74. Lieutenant Foster further testified that Assistant
Chief Hayes “[p]erformed a hard shut down” of the server, id. at 96, and that
the SPD had “exclusive possession” of the server, id. at 74–75.
[42] On February 8, 2023—just five days after the jury convicted Taylor of burglary
and auto theft—SPD Chief Greg O’Brien notified the prosecutor via a letter
that the server crash about which Officer Carpenter and Lieutenant Foster
testified actually occurred in early 2018. According to Chief O’Brien, Officer
Carpenter’s testimony that the server crashed after November 28, 2019, was
based on erroneous information provided to him by SPD Information
Technology Manager Ernie Davidson. Chief O’Brien explained that it was his
“opinion that Officer Gilbert Carpenter did miss lead [sic] the court about a
server crash, but he didn’t lie to the court, as he was only going on the
information he was provided.” Appellant’s App. Vol. IV at 41. The State
promptly notified Taylor of this information, and post-verdict discovery ensued.
[43] In a deposition taken March 8, 2023, Chief O’Brien testified that in talking to
Lieutenant Foster about Taylor’s trial, he realized Lieutenant Foster and
Officer Carpenter may have provided incorrect information about the loss of
Officer Carpenter’s body camera video. In his subsequent investigation into the Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 23 of 26 details of the server crash, Chief O’Brien determined that the server crash
happened sometime in early 2018. When Chief O’Brien attempted to retrieve
the logs from the server hosting the body camera videos, he discovered that
there were no logs for any SPD officer from November 11, 2019, to November
29, 2019, but he could not definitively determine the cause of this gap. Chief
O’Brien also testified that only two people had access to the server: Davidson
and Assistant Chief Hayes.
[44] In another deposition, Davidson testified that the server crashed not in early
2018 but sometime before June 18, 2018 and that he mistakenly gave Officer
Carpenter incorrect dates for the server crash shortly before Officer Carpenter
testified at trial. Davidson was also unable to retrieve logs for the body camera
system for November 11, 2019, to November 29, 2019. Additionally, in a
deposition taken of Lieutenant Foster, he testified that his testimony at trial and
the motion to suppress hearing was “not accurate” and was “[b]ased on what
[he] understood from Officer Carpenter.” Appellant’s App. Vol. IV at 45.
[45] Carpenter was also deposed. He testified that he did not learn until after trial
that the server crash occurred in 2018 instead of late 2019. Officer Carpenter
testified he downloaded his body camera video from the burglary investigation,
and he was able to view that footage while he wrote his report thereon.
However, the server ultimately did not retain that video or the video otherwise
became unretrievable. According to Officer Carpenter, he searched for the lost
footage sometime before his deposition in late 2021, but he did not recall
discussing his lost body camera video or the server crash with Davidson until
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 24 of 26 January 2023, at which time Davidson mistakenly gave Officer Carpenter
incorrect information about the date of the server crash. Officer Carpenter also
testified that he did not have the ability to edit or delete his body camera
footage.
[46] Based on the foregoing, it is clear that Officer Carpenter and Lieutenant Foster
provided inaccurate testimony only about the timing of the server crash. There
was a crash. The videos were lost, damaged, or otherwise irretrievable. There
is no indication in the record that the prosecutor knew the testimony about the
timing of the crash was incorrect until after the jury convicted Taylor. In fact,
in his motion to set aside the verdict, Taylor concedes that “the Jackson County
Prosecutor’s Office did not knowingly present false evidence.” Appellant’s
App. Vol. IV at 21. Because the State did not solicit false testimony or
knowingly use false testimony without correcting it, Taylor’s due process rights
under the Fourteenth Amendment to the United States Constitution were not
violated. Thus, the trial court did not err by denying Taylor’s motion to set
aside the verdict on this basis.
Conclusion [47] In sum, the trial court did not abuse its discretion by refusing to sever the Auto
Theft Cause and the Burglary Cause, the trial court did not abuse its discretion
by admitting the yellow glove and exhibits relating to the Reynoldses’ pre-trial
identification of Taylor, and the trial court did not err in denying Taylor’s
motion to set aside the verdict because Taylor’s due process rights were not
violated due to the SPD’s failure to preserve Officer Carpenter’s body camera Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 25 of 26 video or due to Officer Carpenter’s and Lieutenant Foster’s incorrect testimony
about the server crash. We therefore affirm the trial court on all issues raised.
[48] Affirmed.
Altice, C.J., and Bradford, J., concur.
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Ian A. McLean Supervising Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 23A-CR-1625 | June 5, 2024 Page 26 of 26