                                                                                 Mar 31 2015, 10:07 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      David W. Stone, IV                                        Gregory F. Zoeller
      Anderson, Indiana                                         Attorney General of Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Wenzel Williams,                                          March 31, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                48A05-1407-CR-321
              v.
                                                                Appeal from the Madison Circuit
      State of Indiana,                                         Court
                                                                Honorable David A. Happe, Judge
      Appellee-Plaintiff,
                                                                Trial Case No. 48C04-1402-FB-192




      Robb, Judge.



                                Case Summary and Issues
[1]   Following a jury trial, Wenzel Williams was convicted of two counts of dealing

      in cocaine, both Class B felonies. He raises four issues on appeal: (1) whether

      the trial court abused its discretion by denying Williams’s motion for

      continuance on the morning of his jury trial; (2) whether the trial court abused

      its discretion by limiting Williams’s cross-examination of the State’s
      Court of Appeals of Indiana | Opinion 48A05-1407-CR-321 | March 31, 2015                           Page 1 of 13
      confidential informant; (3) whether the trial court abused its discretion by

      allowing a police officer to testify that he witnessed Williams participate in a

      drug transaction; and (4) whether the State committed prosecutorial misconduct

      during closing argument. Concluding none of Williams’s issues require

      reversal, we affirm.



                             Facts and Procedural History
[2]   Gayland Swaim began working with the Madison County Drug Task Force as

      a confidential informant in the spring of 2013. In April 2013, Swaim told law

      enforcement that he believed he could purchase crack cocaine from a person

      nicknamed “Bear,” who was later identified as Williams, and the officers

      proceeded to carry out two controlled buys with Williams.


[3]   On April 11, 2013, Swaim called Williams to finalize plans for a drug

      transaction. After searching Swaim and finding no drugs or money, Detective

      Keith Gaskill, acting as an undercover officer, provided Swaim with money and

      drove him to meet Williams. Swaim exited the vehicle and conducted a hand-

      to-hand exchange with Williams approximately ten yards away from Detective

      Gaskill. Williams and Swaim then entered Detective Gaskill’s vehicle together,

      and Detective Gaskill drove Williams to a nearby residence. After they

      dropped off Williams, Swaim provided Detective Gaskill with crack cocaine

      purchased from Williams.




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[4]   On April 23, 2013, a second controlled buy was arranged between Swaim and

      Williams. Detective Gaskill searched Swaim, provided him with buy money,

      and drove him to meet Williams at the residence where they had dropped off

      Williams after the previous controlled buy. Swaim went inside the residence

      for approximately five minutes and returned to the vehicle along with Williams.

      Detective Gaskill drove to a local barbershop, where Williams left briefly before

      returning to the vehicle and handing his cell phone to Swaim as collateral in

      exchange for the buy money. After getting the money from Swaim, Williams

      again left the vehicle and returned minutes later with a package which he gave

      to Swaim. The package Williams gave Swaim contained cocaine.


[5]   On February 5, 2014, the State charged Williams with two counts of dealing in

      cocaine, both Class B felonies. On February 25, 2014, Williams’s original

      public defender withdrew, and the trial court appointed a new public defender,

      Evan Broderick, to represent Williams. On March 12, 2014, the trial court

      granted Williams a continuance and set a trial date for May 20, 2014. On May

      16, 2014, a hearing was held and the trial was continued due to court

      congestion. The trial date was rescheduled for June 11, 2014, after the trial

      court granted the State’s request to expedite the trial to a first-choice setting on

      that date.


[6]   Williams’s jury trial was set to begin on June 11, 2014, and his defense attorney

      made an oral motion for a continuance that morning. Defense counsel argued

      a continuance was needed for two reasons: (1) the State gave Williams notice

      of an additional witness the day before trial and (2) he wished to depose Swaim

      Court of Appeals of Indiana | Opinion 48A05-1407-CR-321 | March 31, 2015    Page 3 of 13
      and felt he had not had adequate time to prepare for trial. The trial court

      excluded the State’s late witness but denied Williams’s motion for continuance,

      and the trial proceeded as scheduled. The jury found Williams guilty of both

      counts, and he was sentenced to sixteen years on each count, to be served

      concurrently, with five years suspended to probation. This appeal followed.



                                 Discussion and Decision
                                  I. Motion for Continuance
[7]   First, Williams argues the trial court erred by denying his motion for

      continuance on the morning of his jury trial. If a defendant’s motion for

      continuance is based on the absence of material evidence, absence of a material

      witness, or illness of the defendant, and if certain statutory criteria are met, then

      the defendant is entitled to a continuance as a matter of right. See Ind. Code §

      35-36-7-1; Elmore v. State, 657 N.E.2d 1216, 1218 (Ind. 1995). Here, Williams’s

      motion for continuance did not meet the requirements of Indiana Code section

      35-36-7-1. Therefore, the trial court’s decision to deny his motion for

      continuance is reviewed for an abuse of discretion, and we give great deference

      to the trial court’s ruling. Elmore, 657 N.E.2d at 1218. An abuse of discretion

      may be found where the moving party shows there was good cause for the

      motion and that he was prejudiced by the denial. Stafford v. State, 890 N.E.2d

      744, 750 (Ind. Ct. App. 2008). Continuances to allow time for additional

      preparation are generally disfavored and require a specific showing of how

      additional time would aid counsel. Robinson v. State, 724 N.E.2d 628, 634 (Ind.

      Court of Appeals of Indiana | Opinion 48A05-1407-CR-321 | March 31, 2015   Page 4 of 13
      Ct. App. 2000), trans. denied. Furthermore, “[a] continuance requested for the

      first time on the morning of trial is not favored.” Lewis v. State, 512 N.E.2d

      1092, 1094 (Ind. 1987).


[8]   As an initial matter, we note Williams obtained partial relief when the trial

      court excluded the State’s late witness. Therefore, only Williams’s asserted

      interest in further preparation for cross-examining Swaim could support his

      motion for continuance. Williams argued that he needed to depose Swaim in

      order to uncover evidence necessary to attack Swaim’s credibility; specifically,

      Williams wished to discover any “deals” that Swaim had made with the State

      in exchange for acting as a confidential informant. Transcript at 12.


[9]   Swaim’s identity, along with his criminal history, was disclosed to Williams on

      May 19, 2014. From that date until the trial date on June 11, Williams neither

      requested a continuance nor attempted to depose Swaim. Williams focuses on

      Swaim’s recent theft conviction, a number of continuances he received in that

      case while acting as an informant for the Madison County Drug Task Force,

      and what he believed to be a lenient plea agreement. However, Williams was

      able to admit into evidence Swaim’s purportedly favorable plea agreement.

      Additionally, he was permitted to impeach Swaim with a multitude of past

      forgery convictions. And as the trial court pointed out, Williams could have

      attempted to schedule a deposition with Swaim prior to the day of trial but did

      not. Therefore, we cannot say that Williams has met his burden of establishing

      he was prejudiced or that the trial court abused its discretion by denying his

      motion for continuance.

      Court of Appeals of Indiana | Opinion 48A05-1407-CR-321 | March 31, 2015   Page 5 of 13
           II. Swaim’s Criminal History & Cross-examination
[10]   Second, Williams contends the trial court abused its discretion by prohibiting

       him from impeaching Swaim with the entirety of Swaim’s criminal record. A

       trial court’s ruling to admit or exclude impeachment evidence is reviewed for an

       abuse of discretion. Scalissi v. State, 759 N.E.2d 618, 624 (Ind. 2001). An abuse

       of discretion occurs when the trial court’s decision is clearly against the logic

       and effect of the facts and circumstances. Hale v. State, 976 N.E.2d 119, 123

       (Ind. Ct. App. 2012).


[11]   Indiana Evidence Rule 609 governs the use of past convictions for

       impeachment and says that evidence that a witness has been convicted of “(1)

       murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal

       confinement; or (2) a crime involving dishonesty or false statement, including

       perjury” may be used for the purpose of attacking the witness’s credibility. Ind.

       Evidence Rule 609(a). The rule also states that

               if more than ten (10) years have passed since the witness’s conviction
               or release from confinement . . . [it] is admissible only if: (1) its
               probative value, supported by specific facts and circumstances,
               substantially outweighs its prejudicial effect; and (2) the proponent
               gives an adverse party reasonable written notice . . . .
       Evid. R. 609(b).


[12]   Swaim’s criminal history includes a laundry list of convictions: theft (2012);

       forgery (2000); forgery (1999); child molesting (1991); possession of marijuana

       (1991); battery; (1990); dealing in marijuana (1985); home invasion (1984);

       dealing in marijuana (1984); and robbery (1987). At trial, the jury was made

       Court of Appeals of Indiana | Opinion 48A05-1407-CR-321 | March 31, 2015         Page 6 of 13
       aware that Swaim had been found guilty of sixteen counts of forgery and that

       he had recently pled guilty to theft as a Class D felony,1 but the trial court did

       not allow Williams to exploit Swaim’s remaining convictions at trial.


[13]   To the extent Williams wished to use Swaim’s past convictions to show his

       dishonesty, the trial court did not abuse its discretion in concluding that the

       excluded convictions—all of which were more than ten years old—were

       inadmissible. Even if some of those convictions fell under Indiana Evidence

       Rule 609(a), their probative value did not substantially outweigh their

       prejudicial effect where Williams was able to impeach Swaim with numerous

       other convictions.


[14]   Williams also argues that in addition to using the convictions for Rule 609

       purposes, Swaim’s entire criminal history was necessary to show bias because

       of deals he was allegedly receiving from the State in exchange for his service as

       a confidential informant. More specifically, Williams argues that Swaim

       received a very lenient plea agreement for his recent theft conviction and that

       Swaim’s significant criminal history would highlight the favorableness of his

       plea. Williams relies on our supreme court’s decision in Smith v. State, 721

       N.E.2d 213, 219-20 (Ind. 1999), which held a trial court abused its discretion by




       1
         In Indiana, theft is considered a “crime involving dishonesty” under Indiana Rule 609(a). See Rowe v. State,
       704 N.E.2d 1104, 1108 (Ind. Ct. App. 1999), trans. denied.

       Court of Appeals of Indiana | Opinion 48A05-1407-CR-321 | March 31, 2015                         Page 7 of 13
       prohibiting the defendant from questioning a witness about his pending charges

       and a possible deal that he had made in exchange for his testimony.


[15]   There is one major difference between this case and the circumstances in Smith:

       that is, Williams was actually allowed to admit evidence of Swaim’s most recent

       plea agreement, while the defendant in Smith could make no reference to a deal

       whatsoever. Williams was free to argue that Swaim received favorable

       treatment and that he had a self-serving interest in working with the State and

       testifying against Williams. After an offer of proof and argument on the issue,

       the trial court concluded that diving into the intricacies of the plea negotiation

       process, sentencing considerations, and the significance of Swaim’s full criminal

       history would create a risk of confusing the jury without providing much added

       benefit to Williams. Considering the ways Williams was able to impeach

       Swaim, we find no abuse of discretion in the trial court’s limiting of cross-

       examination.


                             III. Testimony on Ultimate Issue
[16]   Third, Williams argues that a State’s witness, Detective Gaskill, was improperly

       allowed to give an opinion concerning Williams’s guilt. Indiana Evidence Rule

       704(b) provides that “[w]itnesses may not testify to opinions concerning intent,

       guilt, or innocence in a criminal case . . . .”


[17]   During the State’s direct examination of Detective Gaskill, the following

       testimony was given:



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               [State]: On this occasion, this first occasion, any doubt in your mind
               that what you saw was a drug transaction?
               [Williams’s objection overruled.]
               [State]: You gave the confidential informant money when he got out
               of the vehicle. Any doubt in your mind that a drug transaction took
               place in front of you?
               [Detective Gaskill]: On buy number one (1) on April 11th?
               [State]: Yes, sir.
               [Detective Gaskill]: No. Having conducted over two hundred and
               fifty (250) of these types of investigations, there’s zero doubt in my
               mind that that was a transaction for cocaine.
       Tr. at 316. Williams argues that Detective Gaskill’s testimony is effectively an

       opinion that Williams was guilty of the crime of dealing in cocaine,

       transgressing Indiana Evidence Rule 704(b). We disagree.


[18]   “Rule 704(b) does not prohibit presentation of evidence that leads to an

       inference, even if no witness could state [an] opinion with respect to that

       inference.” Steinberg v. State, 941 N.E.2d 515, 526 (Ind. Ct. App. 2011)

       (alteration in original) (quoting 13 Robert L. Miller, Jr., Indiana Practice §

       704.201 at 589 (3d ed. 2007)), trans. denied. In Robles v. State, this court

       considered an appeal of a conviction for operating a vehicle while intoxicated in

       which a law enforcement officer testified that the defendant was “intoxicated.”

       705 N.E.2d 183, 186 (Ind. Ct. App. 1998). We held that there was no violation

       of Rule 704(b) because the officers were testifying as to their personal

       observations, not whether the defendant was guilty or innocent of the charged

       offense. Id. We find Robles analogous to this case. Detective Gaskill testified

       to his belief that he personally observed a drug transaction occur in front of his


       Court of Appeals of Indiana | Opinion 48A05-1407-CR-321 | March 31, 2015         Page 9 of 13
       eyes. While this certainly leads to an inference of guilt, it does not run afoul of

       Rule 704(b).


                                IV. Prosecutorial Misconduct
[19]   Finally, Williams contends that the State, in closing argument, committed

       prosecutorial misconduct and deprived him of a fair trial. Specifically, he

       argues that the State’s declaration that drugs are a serious problem was an

       attempt to persuade the jury to convict Williams for a reason other than guilt.


[20]   When reviewing a claim of prosecutorial misconduct that was properly raised

       before the trial court, we must determine “(1) whether misconduct occurred,

       and if so, (2) whether the misconduct, under all of the circumstances, placed the

       defendant in a position of grave peril to which he or she would not have been

       subjected otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citation and

       quotation marks omitted). Whether misconduct has occurred is decided by

       reference to case law and the Rules of Professional Conduct. Id. “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. (emphasis in

       original) (citation omitted).


[21]   Williams’s claim of prosecutorial misconduct stems from the following

       statements made by the prosecutor during closing argument:

               [State]: . . . When we talked about [sic] in jury selection someone said
               that there’s a drug problem in Anderson. Yeah, there is.
               [Defense]: Judge, I’m going to object. Call to duty argument.


       Court of Appeals of Indiana | Opinion 48A05-1407-CR-321 | March 31, 2015      Page 10 of 13
               [Court]: Approach
               [SIDEBAR]
               [Court]: Objection overruled. Proceed.
               [State]: Drugs are a big deal. They’re a big deal. And when he throws
               around loosely the fact that, oh, his client may be an addict but he
               didn’t . . . he didn’t deal, he didn’t deliver, again, I don’t know how he
               says it with a straight face cause [sic] you saw it happen. He wants
               you to think that it’s not a big deal, but it is. It is. So, please, when
               you retire back there, look to the Judge’s instructions, follow the law
               that you’ve been given, apply the law to the facts, do your duty and
               find him guilty. Thank you.
       Tr. at 393.


[22]   As an initial matter, the State asserts that Williams failed to preserve his claim

       of prosecutorial misconduct. The State cites Delarosa v. State, which declares

       that “[t]o preserve a claim of prosecutorial misconduct, a defendant must object

       and request an admonishment. If the defendant is not satisfied with the

       admonishment, the defendant must move for a new trial.” 938 N.E.2d 690, 696

       (Ind. 2010); accord Ryan, 9 N.E.3d at 667. Because Williams did not seek an

       admonishment or a mistrial, the State believes Williams’s claim is forfeited.

       We cannot agree. Williams did object to the prosecutor’s statement during

       closing argument, and the trial court overruled that objection. It makes

       absolutely no sense for the State to say a defendant must request an

       admonishment and a mistrial after having been told by the trial court that no

       misconduct occurred. Statements in Delarosa and Ryan that requests for an

       admonishment and a mistrial are necessary to preserve a claim of prosecutorial

       misconduct presuppose that an objection is sustained and the trial court would

       actually have entertained a request for an admonishment. Put simply,

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       Williams’s overruled objection is sufficient to preserve his prosecutorial

       misconduct claim.


[23]   “It is misconduct for a prosecutor to request the jury to convict a defendant for

       any reason other than his guilt.” Coleman v. State, 750 N.E.2d 370, 375 (Ind.

       2001) (citation omitted). Williams contends that the prosecutor’s comments in

       closing argument were an invitation for the jury to convict in order to combat

       the community’s drug problem, rather than because Williams was guilty of the

       crime of dealing in cocaine. Indeed, an argument that “the jury owes it to the

       community” to find a defendant guilty amounts to prosecutorial misconduct.

       See Woods v. State, 547 N.E.2d 772, 781-82 (Ind. 1989), cert. denied, 501 U.S.

       1259 (1991), abrogated on other grounds by Richardson v. State, 717 N.E.2d 32 (Ind.

       1999).


[24]   The State responds that the prosecutor’s comments were in response to an

       implicit request by defense counsel for jury nullification. The State argues

       defense counsel’s characterization of Williams as merely an “addict,” tr. at 390,

       was an attempt to downplay his conduct and suggest that a small-time drug deal

       did not warrant punishment. In the State’s view, the prosecutor’s remark that

       “[d]rugs are a big deal” and “[defense counsel] throws around loosely the fact

       that, oh, his client may be an addict but he didn’t . . . he didn’t deal” was a

       reaction to argument by defense counsel. Id. at 393. “Prosecutors are entitled

       to respond to allegations and inferences raised by the defense even if the

       prosecutor’s response would otherwise be objectionable.” Ryan, 9 N.E.3d at



       Court of Appeals of Indiana | Opinion 48A05-1407-CR-321 | March 31, 2015   Page 12 of 13
       669 (citation omitted). Under the circumstances of this case, we hold that the

       prosecutor’s statements do not constitute reversible error.



                                                Conclusion
[25]   We conclude the trial court did not abuse its discretion by denying Williams’s

       motion for continuance, limiting cross-examination of Swaim, or allowing a

       witness to testify that he saw a drug transaction. Further, William’s alleged

       prosecutorial misconduct claim does not constitute reversible error.


[26]   Affirmed.


       Bailey, J., and Brown, J., concur.




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