MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 06 2020, 10:27 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel M. Schumm Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Jodi K. Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lawon Browning, August 6, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2522 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff. Judge Trial Court Cause No. 49G04-1804-MR-13688
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 1 of 24 STATEMENT OF THE CASE [1] Appellant-Defendant, Lawon Browning (Browning), appeals his conviction for
murder, a felony, Ind. Code § 35-42-1-1(1); and the entry of judgment of
conviction for robbery, a Level 3 felony, I.C. § 35-42-5-1(1).
[2] We affirm in part, vacate in part, and remand for further proceedings.
ISSUES [3] Browning presents this court with three issues, which we restate as:
(1) Whether his conviction for Level 3 felony robbery must be reduced to a Level 5 felony;
(2) Whether he was deprived of a fair trial before an impartial trial court; and
(3) Whether the trial court abused its discretion when it admitted certain cell phone location evidence.
FACTS AND PROCEDURAL HISTORY [4] Jessica Whitehouse (Whitehouse) lived in the 4300 block of Norwaldo Avenue
in Indianapolis. On November 1, 2016, Whitehouse spent time with her
boyfriend, James Beckley (Beckley), at her home after work. Beckley returned
to his own home around 8:30 p.m. after loaning Whitehouse the $60 she had
asked to borrow to tide her over until payday. Around 4:00 a.m. on November
2, 2016, Browning sold cocaine to Whitehouse from a home located in the 4200
block of Kingsley Drive in Indianapolis.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 2 of 24 [5] From 6:17 a.m. to 6:44 a.m. on November 2, 2016, Whitehouse and her father
exchanged texts regarding her request for $20 for gas, which her father agreed
to place under the windshield wiper of his car so she could retrieve it.
Whitehouse never retrieved the money. Her father drove by her home around
1:00 p.m. to check on her and noted that her car, a dark green 1993 Crown
Victoria, was not in its parking place. Beckley, who was in the habit of
communicating with Whitehouse throughout the day, worried when he got no
responses to his calls and texts on November 2, 2016. At 7:30 p.m. after
finishing his workday, Beckley went to Whitehouse’s home to check on her.
Whitehouse’s car was not in its parking place, and Beckley, receiving no
response after knocking on the door, peered into the window of the master
bedroom. Beckley saw Whitehouse’s legs sticking out of the bathroom
doorway onto the hallway floor. Whitehouse had been in recovery from
alcoholism but had a history of relapse, so Beckley feared she had lost
consciousness from alcohol consumption. Beckley pried open the window and
crawled in, but it was quickly apparent to him that Whitehouse was deceased.
Whitehouse had been killed by gunshots to her torso, hip, thigh, and leg. There
were indications that a struggle had taken place in the home, as Whitehouse’s
glasses were found in her cat’s food dish and a closet door opposite the
bathroom was off its track. Whitehouse’s car, purse, and cell phone were
missing from her home.
[6] Browning lived at the Willowbrook Apartments on 52nd Street near Keystone
Avenue. Behind the Willowbrook Apartments there is a gap in the fence line
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 3 of 24 creating a passthrough to the dead end of Hillside Avenue. On November 2,
2016, homeowners living near the passthrough observed what was later
determined to be Whitehouse’s car parked at the dead end. Around 5:00 p.m.
on November 2, 2016, a man walked through the passthrough from the
Willowbrook Apartments, stood facing the fence line for a few moments, and
then tried to open the doors of a car that was parked in front of Whitehouse’s
car. One homeowner confronted the man, who drove away in Whitehouse’s
car. Credit and insurance cards bearing Whitehouse’s name were later found in
the scrub of the fence line where the man had been standing.
[7] Whitehouse’s cell phone call records revealed that she had contacted Browning
three times around 5:00 a.m. on November 2, 2016, information which caused
Browning to become a person of interest in the investigation of Whitehouse’s
death. Investigators acquired Browning’s cell phone records and developed
preliminary cell phone location data for Whitehouse’s and Browning’s cell
phones. Based on this preliminary data, investigators requested the assistance
of FBI Special Agent Kevin Horan (Horan) to refine cell phone location
information for Whitehouse and Browning on November 2, 2016. Horan
acquired Network Element Location Service (NELOS) data for both cell
phones from cell phone service provider AT&T. NELOS data does not provide
precise location data. It provides the latitude and longitude for a cell phone
usage ping and a “range of uncertainty” around that latitude and longitude,
ranging between 25 and 600 meters, within which the ping could be located.
(Tr. Vol. IV, p. 196) Based on the acquired NELOS data, on August 15, 2017,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 4 of 24 Horan mapped the areas of actual cell phone coverage for the cell phone towers
used by Whitehouse’s and Browning’s phones by driving the areas of interest
with a device installed on his car that measured the actual strength of radio
frequency signal (the Drive Test). Horan used the NELOS and Drive Test data
to create maps depicting approximate locations for Whitehouse’s and
Browning’s cell phones during the relevant time which showed that
Whitehouse’s and Browning’s cell phones were within an area consistent with
Whitehouse’s home just prior to 7:00 a.m. and that, thereafter, from
approximately 7:00 a.m. to 8:00 a.m., the phones were in an area consistent
with Browning’s home. From 8:00 a.m. to 5:00 p.m. on November 2, 2016,
Whitehouse’s phone was not communicating with the cell network. At 5:00
p.m., Whitehouse’s phone was still in an area consistent with Browning’s
home, was back on network, and received a number of incoming calls. After
DNA test results indicated the presence of Browning’s DNA on swabs taken
from Whitehouse’s fingertips and underneath her nailbeds, it was determined
that probable cause existed for Browning’s arrest.
[8] On April 27, 2018, the State filed an Information, charging Browning with
murder, felony murder, Level 2 felony robbery, and Level 5 felony carrying a
handgun without a license. On May 9, 2018, Browning and Daniel Porter
(Porter), an acquaintance of Browning’s who had also been Whitehouse’s
friend, were placed in the same courtroom holding cell to wait to be called for
court hearings. Browning was unaware that Porter knew Whitehouse. When
Porter asked Browning what he had been charged with, Browning told him that
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 5 of 24 he “had caught an M” for allegedly killing “the chick on the news, Jessica.”
(Tr. Vol. IV, p. 133). Browning stated that Whitehouse had owed him money
for pills, he went to her house, he forced his way in when she opened the door,
she fought with him, and he shot her in the leg and stomach. Browning also
told Porter that he had taken Whitehouse’s cell phone and wallet when he left.
When Porter asked Browning how he had been caught, he replied that law
enforcement had found his DNA under Whitehouse’s nails but that he was not
concerned because “I’m a beat that, I’m a say we had a sexual relationship.”
(Tr. Vol. IV, p. 133). After having this conversation with Browning, Porter
contacted the prosecutor and provided a statement.
[9] Prior to trial, the State dismissed the Level 5 felony carrying a handgun without
a license charge. On July 22, 2019, the trial court convened Browning’s four-
day jury trial. The deputy coroner testified that he estimated that Whitehouse
had been dead for ten to twelve hours prior to when he first examined her body
at 8:25 p.m. on November 2, 2016. Browning stipulated to his cell phone
number and that his cell phone using that number was within his exclusive
possession on November 2, 2016. Porter testified regarding his conversation
with Browning in the courtroom holding cell.
[10] On the third day of trial, the trial court held a hearing outside the presence of
the jury to address the admissibility of the NELOS and Drive Test data.
Browning objected that the NELOS data was not based on scientifically reliable
principles and that the Drive Test data was irrelevant because it was performed
more than nine months after Whitehouse’s death. Horan testified at the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 6 of 24 hearing, after which the trial court ruled that the jury could conclude that
Horan qualified as an expert and the NELOS and Drive Test data were
admissible. Horan testified before the jury at length regarding his conclusions
based on the NELOS and Drive Test data about the whereabouts of
Whitehouse’s and Browning’s cell phones on the day of her murder, and the
maps that he generated based on that data were admitted into evidence.
[11] Browning testified on his own behalf and told the jury that he had sold
Whitehouse cocaine at the Kingsley Avenue home around 4:00 a.m. on
November 2, 2016, and that he finished dealing that morning around 8:00 a.m.
and went home. Browning denied ever being at Whitehouse’s home or being in
her car. Browning also denied knowing Porter or telling him about the details
of his case. The jury found Browning guilty as charged.
[12] On October 2, 2019, the trial court held Browning’s sentencing hearing. Due to
double jeopardy concerns, the trial court did not sentence Browning for felony
murder. Browning argued that his robbery conviction should be reduced to a
Level 5 felony because the injury had been taken away from the robbery Count.
The State countered that the trial court could sentence Browning for the robbery
as a Level 3 felony because, while the jury had not been instructed on the use of
a deadly weapon as an enhancement for the robbery, the State had alleged in
the Information that Browning was armed with a deadly weapon and the jury
had been provided with the Information in its instructions. The trial court
accepted the State’s argument and reduced the Level 2 felony robbery
conviction to a Level 3 felony. The trial court sentenced Browning to sixty-five
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 7 of 24 years for murder and to sixteen years for robbery, to be served consecutively,
for an aggregate sentence of eighty-one years.
[13] Browning now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Robbery
[14] The jury found Browning guilty of Level 2 felony robbery, and after hearing the
arguments of the parties, the trial court entered judgment of conviction on the
robbery as a Level 3 felony instead of a Level 5 felony, as had been advocated
for by Browning. Browning now argues, and the State concedes, that, in light
of this court’s decision in Martin v. State, 134 N.E.3d 1033 (Ind. Ct. App. 2019),
Browning’s conviction for Level 3 felony robbery must be reduced to a Level 5
felony.
[15] Like Browning, Martin was convicted of murder, felony murder, and Level 2
felony robbery. Id. at 1035. Due to double jeopardy concerns, the trial court
did not sentence Martin for felony murder, and it reduced the robbery to a
Level 3 felony. Id. In concluding that Martin’s robbery conviction must be
further reduced to a Level 5 felony, we observed that a Level 2 felony occurs if
a robbery results in serious bodily injury to a person other than the defendant; a
Level 3 felony occurs if the robbery results in bodily injury or is committed
while armed with a deadly weapon; and that a Level 5 felony robbery occurs
when a person knowingly or intentionally takes property from a person by using
or threatening to use force or by putting any person in fear. Id. at 1036 (citing
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 8 of 24 I.C. § 35-42-5-1(a)). In Martin’s case, the State had not alleged that he had been
armed with a deadly weapon when he committed the robbery, and the jury was
not so instructed. Id. Therefore, we concluded that Martin had been sentenced
for a crime, Level 3 felony robbery, for which he had not been convicted by a
jury, which was fundamental error. Id. at 1037. We vacated Martin’s sentence
for Level 3 felony robbery and remanded for entry of judgment of conviction
and sentencing for Level 5 felony robbery. Id.
[16] Here, although the State alleged in the Information that Browning had been
armed with a deadly weapon while he committed the robbery, the jury was not
specifically instructed on the use of a deadly weapon to enhance the robbery
charge. In light of Martin and given the State’s concession, we vacate
Browning’s conviction for Level 3 felony robbery and remand for entry of
judgment of conviction and sentencing for Level 5 felony robbery. See id.
II. Judicial Impartiality
[17] Browning contends that he was deprived of a fair trial because the trial court
judge exhibited bias against him. “A trial before an impartial judge is an
essential element of due process.” Everling v. State, 929 N.E.2d 1281, 1287 (Ind.
2010). A trial court judge is presumed to be unbiased. Smith v. State, 770
N.E.2d 818, 823 (Ind. 2002). “[T]o rebut that presumption, a defendant must
establish from the judge’s conduct actual bias or prejudice that places the
defendant in jeopardy.” Id. A defendant makes this showing “only where there
is an undisputed claim or where the judge expressed an opinion of the
controversy over which the judge was presiding.” Id. A defendant cannot
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 9 of 24 make the requisite showing of bias merely by making that assertion. Id. In
assessing whether a judge has exhibited partiality, we examine both the judge’s
actions and demeanor. Tharpe v. State, 955 N.E.2d 836, 839 (Ind. Ct. App.
2011), trans. denied. Browning argues that the trial court exhibited bias against
him through a “pattern of rulings, interruptions of defense counsel, and
comments before the jury[.]” (Appellant’s Br. p. 18).
i. Adverse Rulings
[18] Browning directs our attention to what he claims was a pattern of adverse
rulings that demonstrated bias on the part of the trial court. More specifically,
Browning claims that the trial court overruled all but one of his evidentiary
objections, uniformly sustained the State’s objections, and ruled against him on
the issue of whether judgment should be entered against him for Level 3 or
Level 5 felony robbery. However, Browning’s argument regarding the trial
court’s evidentiary rulings is at least partially inaccurate, as the trial court
sustained Browning’s objections to speculation twice during Porter’s testimony
and once to the State’s leading of the same witness. More importantly, “[t]he
mere assertion that certain adverse rulings by a judge constitute bias and
prejudice does not establish the requisite showing.” Voss v. State, 856 N.E.2d
1211, 1217 (Ind. 2006). Browning merely asserts that the number of adverse
evidentiary rulings constituted bias; he does not attempt to show that any of the
trial court’s evidentiary rulings were contrary to law or the Rules of Evidence.
Thus, Browning has failed to meet his burden to establish bias. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 10 of 24 [19] We reach a similar conclusion regarding Browning’s claim based on the trial
court’s ruling that his robbery conviction should be entered as a Level 3 felony.
The facts of Martin demonstrate that the issue was not a settled one, as the trial
court in Martin reached the same conclusion as the trial court in this case.
Browning does not argue that the robbery enhancement issue was an
“undisputed claim” which would have rendered the trial court’s decision
against him biased. See Smith, 770 N.E.2d at 823. We find no demonstrated
actual bias in the trial court’s rulings.
ii. Comments Before the Jury
[20] Next, Browning argues that certain comments by the trial court demonstrated
bias against him, citing an instance wherein the trial court told defense counsel,
upon sustaining the State’s speculation objection, not to lead the witness and
citing a second instance wherein the trial court directed defense counsel not to
testify while cross-examining a detective. In his Reply, Browning
acknowledges that he mischaracterized the trial court’s admonishment not to
lead, which was actually directed to the prosecutor. In addition, we cannot
conclude that the trial court’s comment to defense counsel not to testify through
his questions showed actual bias. Early in the trial proceedings during voir dire,
the trial court told the prospective jurors that
[o]ne of the things that does not happen in every trial is that the lawyers are extremely talented, right. In this trial, you will have the blessing of really talented attorneys on both sides.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 11 of 24 What that means is that they know the rules. They understand how to go forward. You won’t see any of the crazy stuff that happens on television. . . They’ll do real well. They know what they’re doing. And that’s something that’ll – that you can count on for this trial. It makes my job a lot easier too.
(Tr. Vol. II, p. 19). With its comments to the venire panel, the trial court set the
tone for the trial, demonstrated that it held counsel for both parties in high
regard, and put counsel on notice that it would hold them to high standards.
Browning does not assert that his counsel was not testifying through his
questions to the detective, and the trial court was simply holding defense
counsel to the Rules of Evidence.
[21] Browning further argues that disparate treatment by the trial court when
witnesses continued to talk over an objection was a manifestation of its bias
against him. During defense counsel’s cross-examination of Horan regarding
Horan’s knowledge of how NELOS data was compiled, the following exchange
took place:
Horan: I know how it works. I just don’t know which technology they used for that specific NELOS hit.
Defense counsel: So, well, that’s not exactly accurate. You said you’re assuming that they use a couple of different technologies to generate their information; is that more accurate?
Prosecutor: Objection. That’s actually mischaracterization of his testimony. He said he knows they used two.
Horan: There’s two.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 12 of 24 Trial court: Okay. I’m going to sustain that objection, that it does misstate, and you want to rephrase?
(Tr. Vol. V, p. 29). During the State’s cross-examination of Browning, the
following occurred:
Prosecutor: Right. So do you – Mr. Browning, the stipulation says the phone was in your exclusive possession the entire time.
Browning: So how would we know it was in my exclusive possession –
Prosecutor: You would know that because you signed it.
Browning: I signed to it being by phone.
Defense counsel: Objection. Argumentative and – argumentative and –
Browning: I’m sorry about that, jury.
Trial court: Stop talking.
(Tr. Vol. V, p. 123-24). Browning argues that the fact that the trial court did not
admonish Horan to stop talking but did admonish him demonstrated bias.
However, it was within the discretion afforded a trial court in conducting a trial
to protect Browning’s rights to a fair trial and to freedom from self-
incrimination by insisting that Browning refrain from directly addressing the
jury and talking when a question was not before him, interests that were not
similarly implicated by Horan’s conduct. A trial court’s disparate actions in the
face of disparate circumstances does not amount to bias. Therefore, we find no
actual bias inherent in the trial court’s admonishment to Browning.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 13 of 24 iii. Sidebars
[22] Browning also cites three instances of the trial court calling sidebars during his
counsel’s questioning of witnesses as manifesting actual bias against him: (1)
when the trial court was concerned that defense counsel’s inquiries into the
prosecutor’s mental state in making the charging decision would create a
conflict of interest by requiring the prosecutor to testify; (2) when the trial court
called the parties to the bench to clarify for itself whether Whitehouse had made
three or four calls to Browning; and (3) when defense counsel did not readily
comply with the judge’s admonishment during cross-examination not to
interrupt Horan while he was attempting to answer defense counsel’s questions.
Browning argues that these cited instances of trial court conduct “likely gave
the jury an unfavorable impression of the defense and suggested [defense
counsel] was a less than competent attorney.” (Appellant’s Br. pp. 21-22)
(quotations omitted).
[23] In addressing this argument, we find it significant that when the trial court
called the parties to the bench to address defense counsel’s questions about the
prosecutor’s charging decision, she simply asked, “Could I see the parties at the
bench?” (Tr. Vol. IV, p. 95). The trial court did not provide any reason for its
request. The trial court had given the jury a preliminary instruction that the
trial court would be required to make rulings during trial and that “[n]othing I
sa[y] or do is intended to recommend what facts or what verdict you should
find.” (Tr. Vol. II, p. 126). Thus, the jury was put on notice that the trial court
was required to make rulings during the trial, and, given that it provided no
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 14 of 24 reason for convening the sidebar, there was nothing from which the jury could
have made a negative inference about the defense or defense counsel.
[24] We reach a similar conclusion regarding the second sidebar cited by Browning.
When calling the parties to the bench during the questioning about the number
of calls made by Whitehouse to Browning, the trial court asked defense counsel
and the prosecutor, “Can I see the parties at the bench just for a clarification
just for myself?” (Tr. Vol. IV, pp. 111-12). The trial court’s announcement that
it personally required a clarification, the nature of which was not disclosed to
the jury and which only happened once during a four-day trial, did not
demonstrate prejudice against Browning or provide anything from which the
jury could have inferred that the trial court held a negative opinion of the
defense.
[25] The final sidebar to which Browning directs us occurred during defense
counsel’s lengthy cross-examination of Horan about whether NELOS data was
subject to peer review. The judge admonished defense counsel three times to
allow Horan to answer the question posed without interruption. When defense
counsel felt that Horan had not answered the question asked, the following
exchange occurred:
Defense counsel: That’s – again, that’s not the question I asked you. I know what you’re trying to do and I think the jury knows what you’re trying to do, but again, the –
Prosecutor: [O]bjection.
Trial court: Sustained.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 15 of 24 Defense counsel: The –
Trial court: Please confine it to a question, not you comment on—
Defense counsel: I have but he won’t answer it.
Trial court: Please approach.
(Tr. Vol. V, pp. 24-25). At the sidebar, the trial court told defense counsel that
he was alienating the jury by arguing and that the court expected him to abide
by its evidentiary rulings. Our supreme court has held that “[e]ven where the
court’s remarks display a degree of impatience, if in the context of a particular
trial they do not impart an appearance of partiality, they may be permissible to
promote an orderly progression of events at trial.” Everling, 929 N.E.2d at
1288. Browning does not attempt to argue that defense counsel’s comment on
the jury’s thought process, interruption of the trial court’s evidentiary ruling,
and argumentative comment to the trial court were proper. Indeed, we
interpret the trial court judge’s convening of a sidebar and remarks to defense
counsel as reinforcing its authority to direct the flow of evidence and promote
the orderly flow of the trial in the face of defense counsel’s conduct. See id.
Because Browning has failed to establish any actual bias or prejudice flowing
from the manner in which the trial court conducted his trial, we conclude that
Browning has failed to overcome the presumption that the trial court was
impartial. See Smith, 770 N.E.2d at 823.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 16 of 24 III. Cell Phone Location Evidence
A. Standard of Review
[26] Browning contends that the trial court abused its discretion when it admitted
the NELOS and Driving Test evidence. “We review evidentiary rulings for
abuse of discretion resulting in prejudicial error.” Williams v. State, 43 N.E.3d
578, 581 (Ind. 2015). An abuse of a trial court’s discretion occurs when its
ruling is clearly against the logic and effect of the facts and circumstances before
it. Id.
B. NELOS
[27] In challenging the admission of the NELOS evidence, Browning does not argue
that Horan was unqualified to provide expert testimony. Rather, he contends
that the trial court abused its discretion when it admitted the NELOS evidence
because the State did not show that the data was based on scientifically reliable
principles. Indiana Evidence Rule 702(b) provides that “[e]xpert scientific
testimony is admissible only if the court is satisfied that the expert testimony
rests upon reliable scientific principles.” There is no specific test or set of
factors to be met to establish scientific reliability. Doolin v. State, 970 N.E.2d
785, 787 (Ind. Ct. App. 2012), trans. denied. When laying the foundation for the
admission of scientific evidence, the focus must be on principles and
methodology behind the science, not on the conclusions generated. West v.
State, 805 N.E.2d 909, 913 (Ind. Ct. App. 2004), trans. denied. Scientific
reliability may be established by “sufficient foundation to convince the trial
court that the relevant scientific principles are reliable.” Sciaraffa v. State, 28
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 17 of 24 N.E.3d 351, 357 (Ind. Ct. App. 2015), trans. denied. Rule 702(b) “directs the
trial court to consider the underlying reliability of the general principles
involved in the subject matter of the testimony, but it does not require the trial
court to re-evaluate and micromanage each subsidiary element of an expert’s
testimony within the subject.” Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453,
461 (Ind. 2001). While the party offering the evidence at trial bears the burden
of persuading the trial court that the evidence is admissible, we presume that
the trial court’s decision is correct, and the burden is on the party challenging
the trial court’s decision to persuade us that the trial court has abused its
discretion. Bennett v. Richmond, 960 N.E.2d 782, 786 (Ind. 2012).
[28] At the hearing on the admissibility of the cell phone data held outside of the
presence of the jury, Horan testified to the following facts regarding the
reliability of NELOS data. NELOS data is developed by AT&T to optimize
cell phone service for its customers, and NELOS data is routinely requested by
law enforcement officials along with standard cell phone records because
NELOS is the best cell phone location data available. Horan had processed
NELOS data on hundreds of occasions and found it to be reliable because
“we’ve actually found people in these circles. We’ve actually found evidence in
these circles.” (Tr. Vol. IV, p. 197). All cell phone service providers develop
similar data, although they use different names for it. NELOS data and its
equivalent from other service providers are developed based on either roundtrip
delay or triangulation. Roundtrip delay is the period of time it takes a cell
phone’s signal to travel from the cell phone tower to the phone and back.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 18 of 24 Triangulation is possible when three cell towers simultaneously send signal to a
cell phone. According to Horan, both methods of determining cell phone
location and the principles they are based on are “well-known” within the radio
frequency community, but, because NELOS data is proprietary, AT&T will not
reveal which of the two methods it used to produce specific data. (Tr. Vol. IV,
p. 189). The margin of error for NELOS data is included within the data itself
through the provision of the range of uncertainty.
[29] Through this testimony, the State established the scientific principles
underpinning the creation of NELOS data, the acceptance of those principles
within the radio frequency community, and the margin of error for any NELOS
data point. While the State could have done more to establish the foundation
for this evidence, we conclude that the State made a showing of the reliability of
the NELOS data such that the trial court did not abuse its discretion when it
ruled that it was admissible. See, e.g., Overstreet v. State, 783 N.E.2d 1140, 1151
(Ind. 2003) (finding sufficient foundation for the reliability of STR DNA testing
where experts testified that the testing was based upon reliable scientific
principles, DNA analysts relied on it, and it was a generally accepted technique
in the scientific community).
[30] Browning contends that the State did not establish an adequate foundation for
the NELOS data because Horan could not specify whether AT&T used the
roundtrip or triangulation method to produce its data. We observe that Horan
does not argue that the State failed to establish the reliability of the scientific
principles themselves. Furthermore, because the State established the reliability
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 19 of 24 of both principles, the fact that Horan could not specify which principle was
used did not undercut the scientific reliability of the data. We are also
unpersuaded by Browning’s argument that the State’s evidentiary foundation
was inadequate because the NELOS data “appears not to have been peer-
reviewed by anyone outside of AT&T.” (Appellant’s Br. p. 24). Peer review is
a pertinent consideration for Daubert analysis pursuant to Federal Rule of
Evidence 702. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593, 113 S.Ct.
2786, 2797, 125 L.Ed.2d 469 (1993). However, Daubert is merely instructive in
Indiana, and, therefore, it is not dispositive of scientific reliability that the
challenged evidence has not been subject to peer review. Turner v. State, 953
N.E.2d 1039, 1051 (Ind. 2011). As these are the only arguments against
admissibility of the NELOS data made by Browning to us, we conclude that he
has not met his appellate burden to overcome the presumption of the
correctness of the trial court’s evidentiary ruling. See Bennett, 960 N.E.2d at
786. Due to our resolution of this issue, in the interests of judicial economy, we
do not address the State’s argument that Horan’s testimony was “specialized
knowledge” not subject to the strictures of Rule 702(b).
C. Drive Test
[31] Horan performed the Drive Test on August 15, 2017, more than nine months
after Whitehouse was killed. At the hearing on the admissibility of the cell
phone location data, Browning developed evidence through Horan that the
Drive Test generates a “snapshot” of cell phone signal reach and that many
factors can affect signal on a given day such as terrain, the foliage present at
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 20 of 24 different times of year, and buildings. (Tr. Vol. IV, p. 179). Horan
acknowledged that a drive test done on November 2, 2016, and one done on
August 15, 2017, would not be a “one-to-one comparison,” and that the
mapping could be off by as much as one city block. (Tr. Vol. IV, p. 185).
[32] Browning argues that in light of such factors as differing amounts of foliage and
“the construction or removal of a building,” the trial court abused its discretion
in admitting the Drive Test evidence generated on August 15, 2017, because it
was irrelevant. (Appellant’s Br. p. 26). Relevant evidence is that which “has
any tendency to make a fact more or less probable than it would be without the
evidence.” Ind. Evidence Rule 401. Irrelevant evidence is not admissible.
Evid. R. 402. The State sought the admission of the Drive Test evidence to
show that Whitehouse’s and Browning’s cell phones were in proximity to each
other on November 2, 2016, making it more probable that Browning was the
one who killed her. The identity of Whitehouse’s killer was the primary issue at
trial, so we conclude that this evidence was relevant, and, therefore, admissible.
[33] Browning does not contend that Horan was not qualified to testify about the
Drive Test, nor does he argue that the Drive Test itself was not based on
reliable scientific principles. If expert testimony is admissible, “then the
accuracy, consistency, and credibility of the expert’s opinions may be properly
left to vigorous cross-examination, presentation of contrary evidence, argument
of counsel, and resolution by the trier of fact.” Alcantar v. State, 70 N.E.3d 353,
357 (Ind. Ct. App. 2016). Browning’s counsel subjected Horan to vigorous
cross-examination and argued in closing statements that Horan’s “entire report
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 21 of 24 is based on junk science” that was unreliable due to the passage of time and
differing conditions. (Tr. Vol. V, p. 177). It was the jury’s province to weigh
this evidence in light of any changed conditions that may have affected the
accuracy of the results. See id. Accordingly, we conclude that the trial court did
not abuse its discretion in admitting the Drive Test evidence over Browning’s
relevancy objection.
D. Harmless Error
[34] Even if the trial court had abused its discretion in admitting the NELOS and
Drive Test evidence, it would not require reversal unless Browning’s substantial
rights were prejudiced. Williams, 43 N.E.3d at 583. In assessing whether an
evidentiary error prejudiced a defendant’s substantial rights, we consider the
probable impact of the evidence on the jury in light of all the other properly-
presented evidence. Id. “If we are satisfied the conviction is supported by
independent evidence of guilt, the error is harmless.” Id. In other words, we
assess whether the jury’s verdict was substantially swayed. Lafayette v. State, 917
N.E.2d 660, 666 (Ind. 2009). “If the error had substantial influence, or if one is
left in grave doubt, the conviction cannot stand.” Id.
[35] In assessing the probable impact of this evidence on the jury, we begin by
noting that on the cell phone location maps admitted at trial, the NELOS range
of uncertainty circles were almost entirely contained within the footprints
generated by the Drive Test such that the Drive Test data did not have a great
deal of persuasive value in this case. We also note that Browning vigorously
cross-examined Horan before the jury about the reliability of the NELOS and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 22 of 24 Drive Test data and maligned it as “junk science” during closing arguments, so
the jury was fully apprised of Browning’s opinion of the reliability of that
evidence. (Tr. Vol. V, p. 177).
[36] In addition, substantial independent evidence supported Browning’s
convictions. Porter testified that Browning told him that he had killed
Whitehouse and taken her property because she owed him money for drugs.
This was direct evidence of Browning’s guilt that could have sustained the
jury’s verdict standing alone. See Sallee v. State, 51 N.E.3d 130, 134-35 (Ind.
2016) (noting that a murder conviction can be sustained on the testimony of a
single witness, even where the evidence is uncorroborated, and upholding
Sallee’s murder convictions where a cellmate testified that Sallee confessed to
him). The State buttressed its case with evidence that on November 2, 2016,
around 5:00 p.m. when Whitehouse was already dead, her car was seen parked
outside the passthrough between Browning’s apartment complex and Hillside
Avenue. Whitehouse’s credit and health insurance cards were also found in the
same location. The fact that Whitehouse’s property was found so close to
Browning’s home further linked him to the offenses. The State also presented
evidence from which the jury could infer that a struggle took place in
Whitehouse’s home, Browning’s DNA was under Whitehouse’s fingernails,
and her phone and purse had been taken.
[37] We agree with Browning that the State relied upon the challenged evidence in
its closing argument to the jury. We also observe that the jury did not have the
cell phone location maps during its almost five hours of deliberation, but that a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 23 of 24 short time after the trial court sent the maps back to the deliberation room along
with all the other exhibits, the jury reached its verdict. However, given the
scant persuasive value of the Drive Test data, Browning’s cross-examination
and arguments to the jury, and the other substantial, independently-admitted
evidence of Browning’s guilt, we are not convinced that Browning’s substantial
rights were prejudiced by the admission of the NELOS and Drive Test data
such that reversal of the jury’s verdict is required. See Williams, 43 N.E.3d at
583.
CONCLUSION [38] Based on the foregoing, we conclude that Browning’s Level 3 felony robbery
conviction must be vacated, and we remand for entry of judgment of conviction
and resentencing for Level 5 felony robbery. We further conclude that
Browning has failed to establish that the trial court was biased against him or
that the trial court abused its discretion in admitting the NELOS and Drive Test
evidence.
[39] Affirmed in part, vacated in part, and remanded for proceedings consistent with
this opinion.
[40] May, J. and Altice, J. concur
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2522 | August 6, 2020 Page 24 of 24