Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE                              GREGORY F. ZOELLER
Special Asst. to State Public Defender             Attorney General of Indiana
Wieneke Law Office
Plainfield, Indiana                                ERIC P. BABBS
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana
                                                                                 FILED
                                                                             Mar 16 2012, 9:14 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court


PAUL J. KINNAMAN,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 24A01-1105-CR-229
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE FRANKLIN CIRCUIT COURT
                           The Honorable J. Steven Cox, Judge
                              Cause No. 24C01-1010-FA-57


                                         March 16, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Paul Kinnaman appeals his convictions of Class A felony dealing in

methamphetamine1 and Class A misdemeanor possession of paraphernalia.2 He alleges the

admission of testimony from various witnesses -- without objection from his trial counsel –

was fundamental error. We affirm.

                               FACTS AND PROCEDURAL HISTORY

          Police stopped a car in which Kinnaman was a passenger and found

methamphetamine, a pipe, and scales. At Kinnaman’s trial, the State called the driver of the

car, Jessica Mantooth, who testified she and Kinnaman were going to see Kinnaman’s parole

officer when their car was stopped. She also testified about whether she had told police that

she thought Kinnaman had marijuana with him that day.

          The State then presented testimony from the police officers who stopped the car.

They testified about why they believed Kinnaman intended to deliver the methamphetamine

and what evidence supported that belief. Kinnaman’s counsel did not object to the testimony,

ask that the jury be admonished, or move for a mistrial. The jury found Kinnaman guilty of

both crimes.

                                  DISCUSSION AND DECISION

          The admission of evidence is within the sound discretion of the trial court. Davis v.

State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003), reh’g denied, trans. denied. A decision to


1
    Ind. Code § 35-48-4-1.1.
2
    Ind. Code 35-48-4-8.3.
                                                2
admit evidence will not be reversed absent a showing of manifest abuse of the trial court’s

discretion resulting in the denial of a fair trial. Id. In determining the admissibility of

evidence, we consider only the evidence in favor of the trial court’s ruling and unrefuted

evidence in the defendant’s favor. Id.

       Kinnaman’s trial counsel did not object to the testimony Kinnaman now argues was

erroneously admitted. Appellate courts may, on rare occasions, resort to the fundamental

error exception to address on direct appeal an otherwise procedurally defaulted claim. Jewell

v. State, 887 N.E.2d 939, 942 (Ind. 2008). But fundamental error is extremely narrow and

available only when the record reveals a clearly blatant violation of basic and elementary

principles, where the harm or potential for harm cannot be denied, and when the violation is

so prejudicial to the rights of the defendant as to make a fair trial impossible. Id.

       1.     Testimony Kinnaman was on Parole and Possessed Marijuana

       On direct examination, Mantooth recounted a conversation with a police officer after

her car was stopped. She testified she told the officer she and Kinnaman were on their way

to pay his child support and see his parole officer. The State elicited no further discussion of

Kinnaman’s parole status.

       Generally, the admission of evidence of prior criminal history is error, Jackson v.

State, 518 N.E.2d 787, 789 (Ind. 1988), and the reference to parole indicated to the jury that

Kinnaman had a criminal history. In Jackson, the prosecutor asked the victim if she had

received any of her property back. In response, the victim said, “His parole, can I . . . .” Id.

                                               3
at 788. Defense counsel immediately moved for a mistrial. Our Indiana Supreme Court

characterized the reference as “fragmentary and inadvertent. There was no attempt by the

prosecutor to elicit the information. Such damage as occurred to the defense did not warrant

a mistrial.” Id. at 789. Given the strength of the evidence against Jackson, the probable

persuasive effect on the jury of the reference to parole was “minimal. The evidence was not

so close that the jury could have been influenced by the error.” Id.

       Mantooth’s testimony had minimal persuasive effect for the same reasons. Her

mention of parole was brief and inadvertent, and there was no attempt by the prosecutor to

elicit the information. As in Jackson, the evidence against Kinnaman was strong. About five

grams of methamphetamine was in the center console of the car in which Kinnaman was the

passenger. Mantooth told police Kinnaman shoved the drugs into the console before the car

was stopped. He had a digital scale, a smoking pipe, plastic baggies, and over $500 in cash.

Kinnaman has not shown admission of the reference to his parole was fundamental error.

       Nor has he demonstrated fundamental error from Mantooth’s testimony about whether

Kinnaman had marijuana that day. A similar fundamental error standard applies to the

admission of evidence of other crimes, wrongs, or acts under Indiana Evid. R. 404(b).

Oldham v. State, 779 N.E.2d 1162, 1173-74 (Ind. Ct. App. 2002), trans. denied. “[T]he

erroneous admission of character and uncharged bad act evidence to prove guilt does not

always require reversal. Such errors are harmless and not fundamental when . . . there is

overwhelming evidence of the defendant’s guilt.” Id. at 1173.

                                             4
        At trial, Officer Franklin testified Mantooth first said Kinnaman placed

methamphetamine into the center console of the car, but then she changed her statement to

indicate it was marijuana that Kinnaman put into the console. Mantooth testified at trial she

did not make either statement. As explained above, the evidence of Kinnaman’s guilt was

sufficiently strong to negate any probable persuasive effect on the jury of the State’s repeated

reference to Mantooth’s alleged earlier statements to police. Thus, the officer’s testimony

did not make a fair trial impossible.

        2.       Testimony Kinnaman was a Dealer

        Ind. Evid. R. 704(b) provides “Witnesses may not testify to opinions concerning

intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a

witness has testified truthfully; or legal conclusions.” The trial court permitted two State’s

witnesses to testify, without objection,3 as to Kinnaman’s intent.

        Officer Bischoff testified Kinnaman had $507.00 when he was stopped, and was then

asked “What evidence do you have that there was any intention to deal”? (Tr. at 36.) The

officer testified, apparently as a “skilled witness,”4 (id.), that “the normal user,” (id. at 37),


3
  Kinnaman’s counsel did object to one officer’s testimony as “speculative,” (Tr. at 37), but that objection is
not the basis of Kinnaman’s allegations of error on appeal. We accordingly review for fundamental error.
4
  It is not clear from the record that the State properly qualified Officer Bischoff as a skilled witness. After the
officer testified about why certain evidence indicated Kinnaman was a dealer, Kinnaman’s counsel said “Judge
that’s speculation.” (Tr. at 37.) The State responded “I think he is a skilled witness who may testify as to what
a typical user might have in that case,” (id.), and the judge said “He can testify.” (Id.) On appeal, Kinnaman
correctly notes neither officer was qualified as an expert, but he does not argue Officer Bischoff was not a
“skilled witness.”

                                                         5
does not carry that much cash or methamphetamine. Kinnaman had several empty baggies,

and the officer testified dealers “put the product into the little baggies and that’s what they

sell.” (Id.) He testified users, by contrast, “don’t accumulate a bunch of bags.” (Id.)5

        A “skilled” witness is one “with a degree of knowledge short of that sufficient to be

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

by the ordinary jurors.” O’Neal v. State, 716 N.E.2d 82, 88 - 89 (Ind. Ct. App. 1999), reh’g

denied, trans. denied. Under Evid. R. 701, a skilled witness may testify to an opinion or

inference that is rationally based on the witness’s perception, and helpful to a clear

understanding of the witness’ testimony or the determination of a fact in issue. Davis, 791

N.E.2d at 268. The requirement that the opinion be “rationally based” on perception means

the opinion must be one that a reasonable person could normally form from the perceived

facts. Id. The requirement that the opinion be “helpful” means, in part, that the testimony

gives substance to facts, which are difficult to articulate. Id. at 269.




5
  Officer Franklin offered similar testimony, but was not qualified as a skilled or expert witness. The State
notes he had qualified in that court as an expert in other trials and asserts he “could and would have qualified
as a skilled witness,” and “likely could have qualified as an expert” had the issue been raised. (Br. of Appellee
at 10.) The State offers no authority to support its apparent premise that otherwise impermissible opinion
testimony may be given by a witness who “could and would” qualify as skilled or expert, but who was not in
fact so qualified by a trial court. We decline the State’s invitation to usurp the trial court’s authority to
determine whether a witness is qualified as “skilled” or “expert.”
  Officer Franklin was asked “so based on your opinion with that evidence whoever possessed that uh,
possessed it with intent to deal?” (Tr. at 91.) The State concedes Officer Franklin’s response, “Whoever
possessed these items were [sic] planning on dealing it [sic],” (id.), was inadmissible. But as explained below,
the error in admitting Officer Franklin’s testimony was harmless.
                                                       6
       In Davis, Davis was charged with possession of cocaine with intent to deliver. Davis

had discarded two plastic baggies of cocaine, each containing an “eight ball” or

approximately forty-five rocks of cocaine that were individually wrapped or “bindled.” Id.

The officer testified the cocaine was packaged for dealing because it was uncommon for a

drug user to carry the amount of cocaine Davis had. No paraphernalia used to smoke cocaine

was found on Davis or near the scene. The officer testified drug users generally do not have

large amounts of drugs on them. He stated drug users typically buy $10 to $20 rocks of

cocaine that weigh approximately .10 grams and immediately smoke it. The officer testified

that drug dealers, by contrast, generally carry larger amounts of cocaine.

       We determined that testimony “gave substance to facts that were otherwise difficult to

articulate. In particular, [the officer’s] testimony was helpful to determine the intent element

of the charge for possession of cocaine with intent to deliver.” Id. The trial court did not

abuse its discretion in admitting the skilled witness testimony. Id.

       Similarly, in the case before us, Officer Bischoff’s testimony was helpful to determine

the intent element of the charge against Kinnaman. He did not testify directly that he

believed Kinnaman was a dealer, but rather testified about what, in his experience,

differentiated a “normal user” and a “normal dealer.” (Tr. at 37.) Thus, we cannot say

admission of Officer Bischoff’s testimony was fundamental error.

       By contrast, Officer Franklin’s testimony that “whoever possessed these items were

[sic] planning on dealing it [sic]” was undoubtedly a direct reference to Kinnaman’s guilt in

                                               7
violation of Evid. R. 704, and the State concedes it should not have been admitted. However,

as explained above, not every trial error compels reversal. The improper admission of

evidence is harmless error when the conviction is supported by substantial independent

evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood that

the questioned evidence contributed to the conviction. Cook v. State, 734 N.E.2d 563, 569

(Ind. 2000), reh’g denied.

       The State presented substantial evidence of Kinnaman’s guilt independent of Officer

Franklin’s testimony Kinnaman planned on dealing the drugs he possessed, and we are

convinced there is no substantial likelihood that the erroneously admitted evidence

contributed to the jury’s verdict. Allowing the questioned testimony into evidence was error

but was harmless.

       Accordingly, we affirm Kinnaman’s convictions.

       Affirmed.

CRONE, J., and BROWN, J., concur.




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