MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Apr 18 2019, 9:53 am

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
Jeffery Haupt                                             Curtis T. Hill, Jr.
Law Office of Jeffery Haupt                               Attorney General of Indiana
South Bend, Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Miller,                                            April 18, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2690
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Jane Woodward
Appellee-Plaintiff                                        Miller, Judge
                                                          Trial Court Cause No.
                                                          71D01-1802-F6-119



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2690 | April 18, 2019               Page 1 of 5
[1]   Joshua Miller appeals his conviction for Level 6 Felony Unlawful Possession of

      a Syringe,1 arguing that the trial court erred by admitting certain evidence.

      Finding no error, we affirm.


                                                     Facts
[2]   On January 26, 2018, St. Joseph Police Department Officers Randy Rodriguez

      and Brad Bauters were dispatched to Clay Park for a possible overdose. Officer

      Bauters had been a police officer for over four years and is trained to identify

      the appearance of heroin and the methods of ingestion. During the course of

      his career, he has responded to the scene of two to three dozen opioid

      overdoses. Signs of an overdose from an opioid such as heroin include

      pinpointed pupils, unresponsiveness, and respiratory failure. Narcan can

      counteract an opioid overdose but does not affect a person who is not

      experiencing one.


[3]   Officer Rodriguez found Miller lying face down on the ground. Miller’s pupils

      were pinpointed, he was nonresponsive, he was not breathing, and his pulse

      was faint. Officer Rodriguez believed that Miller had overdosed on an opioid,

      so the officer administered Narcan. Miller began to breathe shallowly. Officer

      Bauters administered a second dose of Narcan and Miller’s breathing improved.




      1
          Ind. Code § 16-42-19-18.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2690 | April 18, 2019   Page 2 of 5
      Officer Bauters looked for identification in Miller’s front right pocket and found

      a syringe that appeared to contain heroin.


[4]   On February 3, 2018, the State charged Miller with Level 6 felony unlawful

      possession of a syringe. At Miller’s August 16, 2018, jury trial, Miller objected

      to Officer Bauters’s testimony that the syringe appeared to contain heroin,

      arguing that the officer was not an expert. The trial court overruled the

      objection. At the conclusion of the trial, the jury found Miller guilty as

      charged. The trial court ultimately sentenced Miller to two years, fully

      suspended to probation. Miller now appeals.


                                   Discussion and Decision
[5]   Miller argues that the trial court erred by allowing Officer Bauters to testify

      about his opinion regarding the contents of the syringe. We will reverse a trial

      court’s ruling on the admissibility of evidence only if the decision is clearly

      against the logic and effect of the facts and circumstances or when the trial

      court has misinterpreted the law. J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct. App.

      2014). A person commits Level 6 felony possession of a syringe if he possesses

      the syringe with the intent to, among other things, inject a legend drug or

      controlled substance. I.C. § 16-42-19-18.


[6]   Indiana Evidence Rule 701 provides that a witness who is not testifying as an

      expert may offer an opinion “that is . . . rationally based on the witness’s

      perception” and “helpful to a clear understanding of the witness’s testimony or

      to a determination of a fact in issue.” The rule applies to skilled witnesses, who

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2690 | April 18, 2019   Page 3 of 5
      are people who possess “specialized knowledge short of that necessary to be

      declared an expert under Indiana Evidence Rule 702 but beyond that possessed

      by an ordinary juror.” A.J.R. v. State, 3 N.E.3d 1000, 1003 (Ind. Ct. App.

      2014). A skilled witness may testify about his observations and “‘to opinions or

      inferences that are based solely on facts within [his] own personal knowledge.’”

      Id. (quoting Hawkins v. State, 884 N.E.2d 939, 944 (Ind. Ct. App. 2008)). A

      police officer may be qualified to identify drugs. E.g., Jones v. State, 957 N.E.2d

      1033, 1041 (Ind. Ct. App. 2011).


[7]   Here, Officer Bauters had been a police officer for over four years, had

      responded to the scene of two to three dozen opioid overdoses, and had been

      specifically trained to identify the appearance of heroin and the methods of

      ingestion. This training and specialized knowledge is beyond that possessed by

      an ordinary juror and qualified Officer Bauters as a skilled witness regarding

      heroin identification. Therefore, the trial court did not err by allowing the

      officer to testify that, in his opinion, the substance in the syringe was heroin

      based on its color, which was “clearish” or “tan.” Tr. p. 51-52.


[8]   We also note that even if the admission of that testimony was erroneous, the

      error was harmless given the wealth of other evidence in the record supporting

      the conviction. The officers testified regarding the symptoms of an overdose

      and explained that Narcan can stop an overdose but has no effect on a person

      who has not ingested opioids. They then testified that when they found Miller,

      his symptoms were consistent with that of an overdose, and that when they

      administered two doses of Narcan, it mitigated his symptoms and restarted his

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2690 | April 18, 2019   Page 4 of 5
      breathing. Moreover, Officer Bauters admitted that while he believed the

      substance in the syringe was heroin, he was not positive, leaving the ultimate

      conclusion on that issue in the jury’s hands. Therefore, any error in the

      admission of the evidence was harmless.


[9]   The judgment of the trial court is affirmed.


      Najam, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2690 | April 18, 2019   Page 5 of 5
