Confinement conviction reversed; robbery, burglary counts stand

Burglary and robbery convictions against a man convicted in a Marion County break-in will stand, but related criminal confinement convictions must be vacated because the confinement was “part and parcel” of the underlying robbery, the Indiana Court of Appeals ruled Friday.

After hearing banging on his front and back doors in the early morning hours of Jan. 10, 2015, Victor Villalobos saw a man with a gun standing on his front porch. Villalobos attempted to call 911, but his cellphone was stolen when four men — at least two of whom were armed — broke into the home.

Villalobos and his housemate, Julian Altatenco, were forced into separate rooms and repeatedly punched, and Villalobos eventually surrendered $150 after being threatened at gunpoint. Meanwhile, neighbors called 911, and responding officers witnessed two of the attackers attempting to flee.

After one of the men shot at Officer Kevin Larussa, Larussa returned fire and hit the man in the leg. The suspect initially told police his name was Robert Davidson, but it was later learned that his real name was Andre Taylor.

After police found a cellphone belonging to one of the other assailants, Donte Jones, at the scene, they seized Taylor’s phone and determined multiple calls and texts had been exchanged between the two men. Detective Grant Melton used a “Chip-Off” technique to remove the memory chip from Taylor’s phone and retrieve the data, but the discovered texts “were not highly revealing.”

Taylor was eventually charged with burglary, armed robbery and criminal confinement, among other charges, and was alleged to be a habitual offender. He moved to exclude evidence related to Melton’s examination of his phone, but the Marion Superior Court denied the motion. Taylor was then found guilty of Level 2 felony burglary, Level 3 felony armed robbery and two counts of Level 3 felony criminal confinement and pleaded guilty to being a habitual offender.

On appeal in Andre Taylor, a/k/a Robert Davidson, v. State, 49A04-1708-CR-1930, Taylor argued the trial court erred in allowing Melton to testify about his discoveries using the “Chip-Off” technique because he failed to meet the standard for admission of expert scientific testimony. But the Indiana Court of Appeals disagreed, with Judge Michael Barnes writing Melton’s testimony was not scientific.

“Rather, it would more correctly be called ‘technical’ or ‘specialized’ knowledge,” Barnes wrote. “This court has identified mechanical engineering as ‘technical,’ not ‘scientific’ knowledge. The processes by which Detective Melton can recover data from cell phones is more akin to engineering than science.”

But the appellate court agreed with Taylor’s argument that his criminal confinement convictions violated double jeopardy protections because the confinement of Villalobos and Altatenco was no “more extensive than necessary to carry out the robbery.”

“There was no evidence of any separate or significant length of confinement after the robbery was completed,” Barnes wrote. “And, this was not a protracted incident. As such, we conclude that Taylor’s two convictions for Level 3 felony confinement must be vacated.”

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