                                                                        Apr 07 2015, 9:57 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark Leeman                                                Gregory F. Zoeller
Logansport, Indiana                                        Attorney General of Indiana
                                                           Jodi Kathryn Stein
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Glenn Sciaraffa,                                           April 7, 2015

Appellant-Defendant,                                       Court of Appeals Cause No.
                                                           09A04-1410-CR-470
        v.                                                 Appeal from the Cass Superior Court.
                                                           The Honorable Richard A.
State of Indiana,                                          Maughmer, Judge.
                                                           Cause No. 09D02-1405-FB-24
Appellee-Plaintiff.




Riley, Judge.




Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015                      Page 1 of 16
                                        STATEMENT OF THE CASE
[1]   Appellant-Defendant, Glenn Sciaraffa (Sciaraffa), appeals his conviction for

      dealing in methamphetamine, a Class B felony, Ind. Code § 35-48-4-1.1(a)(1)

      (2013); maintaining a common nuisance, a Class D felony, I.C. § 35-48-4-

      13(b)(1) (2013); possession of paraphernalia, a Class A misdemeanor, I.C. § 35-

      48-4-8.3 (2013); and his adjudication as an habitual substance offender, I.C. §

      35-50-2-10.1


[2]   We affirm.


                                                          ISSUES

[3]   Sciaraffa raises three issues on appeal, which we restate as follows:


             (1)      Whether the trial court committed a fundamental error by admitting

                      the presumptive positive test for methamphetamine;

             (2)      Whether fundamental error occurred during the State’s closing

                      argument; and

             (3)      Whether the State presented sufficient evidence beyond a reasonable

                      doubt to sustain Sciaraffa’s conviction.


                                 FACTS AND PROCEDURAL HISTORY




      1
          This statute was repealed by P.L.158-2013, § 664, eff. July 1, 2014.


      Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 2 of 16
[4]   During the evening of May 1, 2014, and into the early morning hours of May 2,

      2014, Sciaraffa manufactured methamphetamine in his residence near

      Galveston in Cass County, Indiana. He resided in the residence with his

      girlfriend Brandi Bragg (Bragg) and Bragg’s fifteen-year-old son. Sciaraffa

      manufactured the methamphetamine using the one-pot or “shake and bake”

      method in a closet in his house, which he had outfitted with a trap door and a

      fan to release the chemical fumes as he “burped” the gas from the mixture.

      (Transcript pp. 131, 126). At one point during the evening, Sciaraffa and Bragg

      tested the methamphetamine by smoking a small portion Sciaraffa had

      extracted from the chemical solution. Bragg went to bed around 1 a.m. on the

      morning of May 2, 2014, while Sciaraffa continued the manufacturing process.


[5]   Bragg awoke around 11 a.m. that same morning and followed Sciaraffa out to

      the garage. She “wanted to catch a buzz” and smoke some of the

      methamphetamine Sciaraffa had manufactured during the night. (Tr. p. 118).

      They both smoked the methamphetamine from a pipe in the garage and

      Sciaraffa handed Bragg a small amount in a bag to consume later. Sciaraffa

      then instructed Bragg “to clean house because he felt [] probation was going to

      be there today.” (Tr. p. 118).


[6]   Around 4:30 p.m. that afternoon, as Bragg was knocking on the garage door,

      several law enforcement officers arrived at the residence. Bragg informed the

      officers that Sciaraffa was in the garage and would not come out. When

      Howard County Probation Officer Dustin DeLong (Officer DeLong)

      approached the garage, Sciaraffa opened the door. Officer DeLong

      Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 3 of 16
      immediately “noticed a very strong odor emitting from the garage,” which took

      his breath away. (Tr. p. 25). Asked what he was doing, Sciaraffa “held up a

      paint can,” “pointed to a guitar,” and informed the officer that he had been

      painting the instrument. (Tr. p. 25). Because the odor was not a paint smell but

      rather a “chemical type smell” that the officer could not really describe, Officer

      DeLong did not believe Sciaraffa’s explanation. (Tr. p. 26).


[7]   Officer DeLong informed Sciaraffa of the home visit; Sciaraffa agreed to a drug

      screen, and consented to a search of the residence. When giving his urine

      sample, Sciaraffa admitted that he had used methamphetamine within “the last

      three days.” (Tr. p. 28). He did not appear to be under the influence at that

      time and was “very cooperative.” (Tr. p. 36). During the search of the

      cluttered residence, the officers located a pipe in the master bedroom; a pen

      tube with a burned end and white residue on the kitchen counter; a blue

      surgical glove containing lithium battery casings on a kitchen ceiling beam; a

      bottle of acetone in the freezer; a glass pipe on a table on the back porch; a glass

      bottle with a milky, oily substance in the middle room off the back porch; a red

      Igloo container with liquid; an empty Coleman fuel can and a white container

      annotated with “Fridge and Air Coil Cleaner” hidden behind a table in the back

      closet; and a Gatorade bottle with liquid on top of a cabinet. (State’s Exh. 16).

      In the garage, the officers located clear air hose tubing used in the gassing

      process and digital scales. All of these items are associated with the

      manufacture of methamphetamine.




      Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 4 of 16
[8]    Samples were taken from the liquid inside the Gatorade bottle and from the

       oily, milky residue in the glass bottle and analyzed by Indiana State Police

       forensic scientist Kim Burrow (Scientist Burrow). During her analysis, Scientist

       Burrow did not find any presence of a controlled substance in the Gatorade

       bottle, but concluded that the glass bottle presumptively “indicated the presence

       of [m]ethamphetamine.” (State’s Exh. 28). She had an insufficient sample

       detail to run a confirmatory test, and noted on her certificate of analysis that

       “the concentration was insufficient for complete identification.” (State’s Exh.

       28).


[9]    On May 7, 2014, the State filed an Information, charging Sciaraffa with Count

       I, dealing in methamphetamine, a Class B felony; Count II, possession of

       methamphetamine, a Class D felony; Count III, possession of chemical agents

       or precursors with the intent to manufacture a controlled substance, a Class D

       felony; Count IV, maintaining a common nuisance, a Class D felony; and

       Count V, possession of paraphernalia, a Class A misdemeanor. In addition, the

       State filed an Information alleging Sciaraffa to be an habitual substance

       offender. On May 12, 2014, the State dismissed Count IV and Sciaraffa

       proceeded to trial on the remaining charges.


[10]   On August 13 through August 14, 2014, the trial court conducted a bifurcated

       jury trial. At the close of the evidence, the jury returned a guilty verdict on all

       four Counts. Thereafter, the jury also determined that Sciaraffa was an habitual

       substance offender. On September 8, 2014, the trial court sentenced Sciaraffa to

       twenty years for Class B felony dealing in methamphetamine, a concurrent

       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 5 of 16
       three years for Class D felony possession of methamphetamine, a concurrent

       three years for Class D felony maintaining a common nuisance, and a

       consecutive one year for Class A misdemeanor possession of paraphernalia.

       The trial court enhanced the sentence for Sciaraffa’s Class B felony with eight

       years for the habitual substance offender adjudication. In sum, Sciaraffa

       received an aggregate twenty-nine-year sentence.


[11]   Sciaraffa now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION

                                            I. Admission of Evidence

[12]   First, Sciaraffa contends that the trial court abused its discretion when it

       admitted into evidence the presumptively positive test results for

       methamphetamine found in the glass bottle. Our standard of review for rulings

       on the admissibility of evidence is well-settled. Admission or exclusion of

       evidence rests within the trial court’s sound discretion and its decision is

       reviewed for an abuse of that discretion. Southward v. State, 957 N.E.2d 975,

       977 (Ind. Ct. App. 2011). The trial court’s decision must be clearly erroneous

       and against the logic and effect of the facts and circumstances before it

       constitutes an abuse of discretion. Id.


[13]   Sciaraffa admits that he failed to object to the admission of the evidence at

       issue, thereby failing to preserve his claim for appellate review. See id. To

       avoid the review of his argument being waived, he invokes the fundamental


       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 6 of 16
       error doctrine which permits appellate review of otherwise procedurally

       defaulted claims. Id. As our supreme court has noted, this narrow doctrine

       may lead to reversal where there has been a “blatant violation of basic

       principles, the harm or potential for harm is substantial, and the resulting error

       denies the defendant fundamental due process.” Matthews v. State, 849 N.E.2d

       578, 587 (Ind. 2006).


[14]   Focusing on the foundational requirements for the admission of evidence,

       Sciaraffa contends that Scientist Burrow’s failure to explain the scientific

       principles and standards of a presumptively positive test should have excluded

       its presentation from the jury. Because of the State’s “heavy” reliance on the

       erroneously admitted test in its prosecution of Sciaraffa, the jury was “highly

       likely” influenced to return a guilty verdict. (Appellant’s Br. p. 14).


[15]   Pursuant to Indiana Rule of Evidence 702, expert scientific testimony is

       admissible only if reliability is demonstrated to the trial court. The Rule

       provides

               (a) A witness who is qualified as an expert by knowledge, skill,
                   experience, training, or education may testify in the form of an
                   opinion or otherwise if the expert’s scientific, technical, or other
                   specialized knowledge will help the trier of fact to understand the
                   evidence or to determine a fact in issue.
               (b) Expert scientific testimony is admissible only if the court is satisfied
                   that the expert testimony rests upon reliable scientific principles.
       The proponent of expert testimony bears the burden of establishing the

       foundation and reliability of the scientific principles. Doolin v. State, 970 N.E.2d

       785, 787 (Ind. Ct. App. 2012). There is no specific test that must be considered

       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015          Page 7 of 16
       in order to satisfy Rule 702(b). Id. Rather, reliability may be established by

       judicial notice or, in its absence, by sufficient foundation to convince the trial

       court that the relevant scientific principles are reliable. Id. In concluding that

       scientific evidence is reliable, the trial court must determine whether the

       evidence appears sufficiently valid, or, in other words, trustworthy, to assist the

       trier of fact. Id.


[16]   In support of his argument, Sciaraffa references Doolin and Burkett v. State, 691

       N.E.2d 1241 (Ind. Ct. App. 1998), trans. denied, for the proposition that the

       testimony must include an explanation of the nature of the presumptive test and

       its reliability. In Burkett, police stopped a speeding car, driven by Burkett.

       Burkett failed the field sobriety test and a portable breath test. Burkett, 691,

       N.E.2d at 1243. Before he was transported to jail, the officer conducted a

       patdown search for his safety. Id. During this search, the officer discovered a

       green, leafy substance in Burkett’s pocket, which, after conducting a field test,

       yielded a positive result for marijuana. Id. On appeal, we upheld the trial

       court’s decision that the officer was a qualified expert because he testified that:

       (1) he was trained to administer the test; (2) he followed the proper procedures;

       (3) the test consisted of three ampoules of acid that change color to show the

       presence of marijuana; and (4) the sheriff’s department routinely used the test.

       Id. at 1245.


[17]   Although Doolin presented similar circumstances as Burkett, we reached the

       opposite result. While the officer in Doolin provided a general overview of the

       steps he intended to follow when conducting the field test, he did not testify as
       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 8 of 16
       to any specific name or otherwise identify the test, indicate its reliability, the

       scientific principles on which it was based, or recognize any standards regarding

       its use and operation. Doolin, 970 N.E.2d at 789. In fact, we noted that the

       officer’s explanation at trial was nothing more than to “break an ampoule of

       something over the challenged plant material and shake it up. If whatever is in

       the ampoule causes the material to turn blue, it’s marijuana.” Id. Due to the

       lack of any foundational evidence, the Doolin court concluded that the State

       failed to establish the test’s reliability under Evid. R. 702(b). Id.


[18]   We find Sciaraffa’s equation of Scientist Burrow’s chemical tests with the quick,

       on-the-scene field tests performed by an officer unpersuasive. Scientist Burrow

       is a professional forensic scientist with the Indiana State Police Laboratory and

       has an extensive education and experience in drug analysis. She testified to the

       specific test performed on the glass bottle, which presumptively “indicated the

       presence of [m]ethamphetamine.” (State’s Exh. 28). She elaborated that she

       performed a “Thimlar chromatography test and a gas chromatography/mass

       spectrometry test” on the specimen. (Tr. p. 202). These are the “specialized

       tests” that are part of the normal testing procedure and which require “expert

       training to administer.” (Tr. p. 203). Both of these tests are “generally accepted

       in the relevant scientific community.” Markley v. State, 603 N.E.2d 891, 893 n.5

       (Ind. Ct. App. 1992), trans. denied.


[19]   In order to identify a controlled substance in a specimen, Scientist Burrow is

       required to perform at least two tests: “one being a presumptive test and one

       being a confirmatory test.” (Tr. p. 206). The presumptive test on the glass

       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015    Page 9 of 16
       bottle indicated the presence of methamphetamine; however, “there wasn’t

       enough sample” to confirm the presumptive testing’s result. (Tr. p. 206). As

       such, Scientist Burrow was not “scientifically certain that it was

       methamphetamine.” (Tr. p. 206). The mere fact that she could not perform a

       confirmatory test does not invalidate the test or inhibit its admissibility but

       rather reflects on the weight of her testimony. See McKnight v. State, 1 N.E.3d

       193, 203-04 (Ind. Ct. App. 2013) (finding that any inaccuracy in the scales used

       to weigh the cocaine went to the weight of the evidence and not its

       admissibility).


[20]   Based on Scientist Burrow’s testimony, we conclude that the State properly

       established the foundation and reliability underlying the scientific principles of

       the test performed on the glass bottle in accordance with Evid. R. 702(b).

       Therefore, there was no error, let alone a fundamental error, in the trial court’s

       admission of the evidence.


                                           II. State’s Closing Argument


[21]   Next, Sciaraffa contends that the State committed prosecutorial misconduct

       when it indicated during closing argument that the State had located actual

       methamphetamine during the search of the residence.


[22]   In reviewing a claim of prosecutorial misconduct properly raised in court, we

       determine whether (1) misconduct occurred, and if so, (2) whether the

       misconduct, under all the circumstances, placed the defendant in a position of

       grave peril to which he or she would not have been subjected to otherwise.

       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 10 of 16
       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied. A prosecutor has the

       duty to present a persuasive final argument and thus placing a defendant in

       grave peril, by itself, is not misconduct. Id. “Whether a prosecutor’s argument

       constitutes misconduct is measured by reference to case law and the Rules of

       Professional Conduct. The gravity of peril is measured by the probable

       persuasive effect of the misconduct on the jury’s decision rather than the degree

       of impropriety of the conduct.” Id. (quoting Cooper v. State, 854 N.E.2d 831,

       835 (Ind. 2006)). To preserve a claim of prosecutorial misconduct, the

       defendant must—at the time the alleged misconduct occurs—request an

       admonishment to the jury, and if further relief is desired, move for a mistrial.

       Id.


[23]   Sciaraffa did not raise any objection to nor seek relief from the prosecutor’s

       remarks during trial; rather, the record reflects that he acknowledged to the jury

       that he intentionally failed to object to the contested statements. In order to

       avoid procedural default, he now asserts that the State’s remarks constituted

       fundamental error. In evaluating Sciaraffa’s claim, we look, in addition to the

       customary requirements of the doctrine, at the alleged misconduct in the

       context of all that happened and all relevant information given to the jury—

       including evidence admitted at trial, closing argument, and jury instructions—

       to determine whether the misconduct has such an undeniable and substantial

       effect on the jury’s decision that a fair trial was impossible. Id.


[24]   We stress that “[a] finding of fundamental error essentially means that the trial

       [court] erred . . . by not acting when he or she should have.” Id. (quoting

       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 11 of 16
       Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012)). Fundamental error is meant to

       permit appellate courts a means to correct the most egregious and blatant trial

       errors that otherwise would have been procedurally barred, not to provide a

       second bite at the apple for defense counsel who ignorantly, carelessly, or—like

       here—strategically failed to preserve an error. Id.


[25]   In closing argument, the State argued:

               What do I have to prove? That a person, [Sciaraffa], knowingly or
               intentionally manufactured methamphetamine pure or adulterated. So
               I have to prove that it was the defendant, [Sciaraffa]. [Bragg] said it
               was him. She knows him. She lived with him for three years. She
               said she saw him do it. How do we know it was knowingly or
               intentionally? She saw him take the steps, she handed him a fuel can,
               she saw him burping the vessel, those are things that he was doing
               intentionally. He knew what he was doing. How do we know it was
               manufactured? We have the remnants. We have [Bragg’s] testimony
               and most importantly we have the final product. [Bragg] told you the
               night that he was making it they each had some. That it was the same
               methamphetamine she has had every time. It gave her the same effect
               that she knew it was methamphetamine. They used it again the next
               morning. We know just like making cookies if you take some of the
               steps out, if you are not manufacturing them, if you are not baking
               them you don’t have the right finished product. We know he
               manufactured because he had the finished product. [Bragg] saw him
               do it, we have the remnants to prove he did it and we have the finished
               product to show that he did it. . . . I anticipate [defense counsel] is
               going to get up here and say well you didn’t find everything. . . . I
               don’t have to give you every ingredient. Why is that? Because just
               like when you bake cookies the ingredients go in and the sugar
               dissolves, the eggs get mixed in, you no longer have those individual
               ingredients. But again we know that the manufacturing, the baking,
               takes place because you have the finished product. . . . We know that
               they were all there, that they all went in because we have the finished
               product.


       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015    Page 12 of 16
       (Tr. pp. 221-23). Pointing to the lack of “actual methamphetamine in

       evidence,” Sciaraffa maintains that the prosecutor’s statements of “he had the

       finished product” and “we have the final product” suggest to the jury that the

       State “had actual evidence of methamphetamine in its possession that had been

       excluded from presentation at trial.” (Appellant’s Br. p. 10). We disagree.


[26]   Placed within the context of the closing argument, the State’s remark that “he

       had the finished product” clearly referred to a permissible inference made from

       analysis of the evidence presented at trial. Poling v. State, 938 N.E.2d 1212,

       1217 (Ind. Ct. App. 2010). The State argued that Bragg’s testimony established

       the manufacturing process, up to the consumption of the actual

       methamphetamine—in other words, the final product. Bragg testified to the

       jury that she aided Sciaraffa, she saw him burp the vessel, and shared some of

       the drug.


[27]   Furthermore, Sciaraffa’s argument that the State’s use of the term “we” alludes

       to the cover-up of evidence is equally without merit. At trial, Sergeant Patrick

       Zeider (Sergeant Zeider) explained to the jury that “all the liquids [he] located,

       [he] tested” with water and pH paper on the scene. (Tr. p. 176). He also

       specified that he only took samples from two containers: the Gatorade bottle

       and the glass bottle with the milky, oily content. Sergeant Zeider clarified that

       he placed the samples in evidence bags, properly labeled them, and delivered

       them to the State Police Laboratory for further analysis by Scientist Burrow.




       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 13 of 16
[28]   Overall, the jury received preliminary and final instructions with correct

       statements of the law. The court’s preliminary instruction No. 20 cautioned the

       jury that “[w]hen the evidence is completed, the attorneys will make final

       arguments. These final statements are not evidence. The attorneys are

       permitted to characterize the evidence, discuss the law and attempt to persuade

       you to a particular verdict. You may accept or reject those arguments as you

       see fit.” (Tr. Vol. 6 Jury Instructions). Viewed in the totality and context of the

       evidence, we conclude that the State’s comments during closing argument fell

       within the bounds of prosecutorial advocacy and no misconduct, let alone

       fundamental error, occurred.


                                         III. Sufficiency of the Evidence.


[29]   Lastly, Sciaraffa contends that the State failed to present sufficient evidence

       beyond a reasonable doubt to support his conviction for dealing in

       methamphetamine, a Class B felony. Generally, in addressing a claim of

       insufficient evidence, an appellate court must consider only the probative

       evidence and reasonable inferences supporting the judgment, without weighing

       evidence or assessing witness credibility, and determine therefrom whether a

       reasonable trier of fact could have found the defendant guilty beyond a

       reasonable doubt. Glenn v. State, 884 N.E.2d 347, 355 (Ind. Ct. App. 2008),

       trans. denied.


[30]   To convict Sciaraffa of dealing in methamphetamine, the State was required to

       establish that Sciaraffa knowingly or intentionally manufactured


       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 14 of 16
       methamphetamine, pure or unadulterated. See I.C. § 35-48-4-1.1(a)(2013).

       Focusing on Bragg’s testimony, Sciaraffa claims that “Bragg testified that she

       smoked methamphetamine twice with Sciaraffa but there was no evidence

       showing beyond a reasonable doubt that Sciaraffa actually made the

       methamphetamine that she claims they smoked together.” (Appellant’s Br. p.

       15). Insofar as Sciaraffa disputes Bragg’s testimony and requests this court to

       reweigh her credibility, we decline his invitation as this is the “jury’s exclusive

       province.” McHenry v. State, 820 N.E.2d 124, 126-27 (Ind. 2005). Considering

       the evidence presented at trial, we conclude that the State carried its burden of

       proof.


[31]   Bragg testified that she saw Sciaraffa manufacture methamphetamine using the

       “shake and bake” method during the evening of May 1 and into the early

       morning hours of May 2, 2014. (Tr. p. 131). She noticed Sciaraffa “burp” the

       vessel several times to release the gasses which had build up inside. (Tr. p.

       126). She admitted that when the process reached its conclusion, she and

       Sciaraffa sampled the product by smoking a small portion. Around 11 a.m. that

       morning, Bragg wanted to catch another buzz, and she informed the jury that

       both she and Sciaraffa smoked methamphetamine from a pipe in the garage,

       after which Sciaraffa handed her a small amount in a little bag to consume

       later. Bragg’s testimony is underscored by her self-professed four-year addiction

       to methamphetamine; she knew what it looked like and was well-versed in the

       manufacturing process.




       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 15 of 16
[32]   During a search of the residence later that same day, law enforcement officers

       noticed a chemical-type smell emitting from the garage. Throughout Sciaraffa’s

       residence, the officers also located items associated with the manufacture of

       methamphetamine, including stripped lithium battery casings and a glass bottle,

       which presumptively tested positive for methamphetamine. Mindful of the

       testimony and evidence presented at trial, we conclude that the State

       sufficiently supported Sciaraffa’s conviction for Class B felony dealing in

       methamphetamine.


                                                 CONCLUSION

[33]   Based on the foregoing, we hold that no fundamental error occurred during the

       admission of the presumptive positive test for methamphetamine or the State’s

       closing arguments. We also conclude that the State presented sufficient

       evidence beyond a reasonable doubt to sustain Sciaraffa’s conviction for dealing

       in methamphetamine.


[34]   Affirmed.


[35]   Vaidik, C. J. and Baker, J. concur




       Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015   Page 16 of 16
