MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                      Apr 18 2019, 7:47 am
regarded as precedent or cited before any
court except for the purpose of establishing                                     CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                       Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darion Lamar Bailey,                                      April 18, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1072
        v.                                                Appeal from the Vanderburgh
                                                          Superior Court
State of Indiana,                                         The Honorable Robert J. Pigman,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          82D03-1703-F2-1687



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019                      Page 1 of 16
[1]   Darion Bailey appeals his conviction for Level 2 Felony Possession of

      Methamphetamine with the Intent to Deliver,1 arguing that the trial court

      erroneously admitted certain testimony. Bailey also appeals the trial court’s

      finding that he is an habitual offender, arguing that the trial court erroneously

      admitted evidence because it was inadmissible hearsay and that the evidence

      was insufficient to support the finding. Finding no error and that the evidence

      was sufficient, we affirm.


                                                    Facts
[2]   On March 21, 2017, Evansville Police Department Detective Crystal Thomas

      was patrolling the Arbors Apartment Complex as a part of the Operation Safe

      Streets drug enforcement program. At roughly 3:53 p.m., Detective Thomas

      saw Bailey “duck down” and put something in his bag. Tr. Vol. II p. 48.

      Detective Thomas noticed that Bailey was closely watching a nearby officer,

      Detective Quentin Wilkerson, while he was doing this. Detective Thomas

      alerted Detective Wilkerson to Bailey’s presence. Bailey then put on his

      backpack and started walking away. Detective Thomas radioed Sergeant David

      Eads and Officer Doug Bueltel to tell them about a suspicious person moving

      towards them.




      1
          Ind. Code § 35-48-4-1.1(a)(2).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 2 of 16
[3]   Sergeant Eads and Officer Bueltel spotted Bailey, approached him, and

      attempted to question him, but Bailey tried to flee. Sergeant Eads grabbed

      Bailey, but Bailey slipped away, abandoning his backpack. While Officer

      Bueltel chased Bailey on foot, Sergeant Eads stayed behind because he detected

      the smell of marijuana coming from Bailey’s backpack. Inside the backpack,

      Sergeant Eads found a loaded handgun, a cigarette cellophane containing

      prescription medication, a prescription bottle with marijuana buds inside, a

      container of marijuana weighing 26.63 grams, multiple digital scales, individual

      baggies filled with a substance later determined to be methamphetamine, a jar

      containing methamphetamine weighing 5.51 grams, and $481 in cash.


[4]   Nearby Officer John Montgomery assisted Officer Bueltel by pursuing Bailey in

      his vehicle. When Officer Montgomery exited his vehicle, Bailey threw a semi-

      automatic weapon to the ground and surrendered. Another officer, Detective

      Justin Jackson, arrested Bailey.


[5]   On March 23, 2017, the State charged Bailey with one count of Level 2 felony

      possession of methamphetamine with the intent to deliver (Count I); one count

      of Level 4 felony possession of methamphetamine (Count II); two counts of

      Level 5 felony carrying a handgun without a license (Counts III and IV); one

      count of Level 6 felony possession of a controlled substance (Count V); one

      count of Level 6 felony possession of marijuana (Count VI); and one count of

      Class A misdemeanor resisting law enforcement (Count VII). On February 12,

      2018, the State added two counts of Level 6 felony theft of a firearm (Counts

      VIII and IX). The State also alleged that Bailey was an habitual offender with

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 3 of 16
      respect to Counts I, II, III, V, VIII, and IX. Bailey’s jury trial took place on

      February 26-27, 2018.


[6]   At Bailey’s jury trial, Sergeant Eads testified that he had been a narcotics

      investigator assigned to the Evansville-Vanderburgh County Drug Task Force

      for tweleve years; that he had training from the Drug Enforcement Agency

      (DEA); that he had attended several undercover and surveillance schools on

      drug assignments; that he had worked on “several hundred” narcotics dealing

      cases; and that he had had training in narcotics recognition and drug

      interdiction. Tr. Vol. II p. 65. Sergeant Eads also testified that small digital

      scales, plastic sandwich baggies, “other types of packaging materials[,]” ledgers,

      currency, and firearms are items often associated with someone dealing in

      narcotics. Id. at 68.


[7]   The State then asked Sergeant Eads the following questions:2


                 Q: Generally speaking with, for instance like powdered meth or
                 methamphetamine, what would be a typical, in your experience, a
                 typical user amount?

                 A: User amounts, like I said, are a lot smaller generally than what
                 we find in a dealing situation. The user amount I would say is
                 typically a gram or less and an example I have given in the past of
                 a gram is like a Sweet and Low packet that you put in your drink
                 or whatever, that’s about a gram of stuff in there so talking about a
                 pretty small amount and a lot of that is due to the price, you know,
                 the lifestyle. They just don’t have enough money to afford to have
                 it. It’s not like you go to Sam’s and stock up because it’s cheap.



      2
          In this excerpted testimony, “Q” is the State and “A” is Sergeant Eads.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 4 of 16
              The price is and you can only get what you can afford and the
              amounts are smaller.

              Q: Okay. If somebody hypothetically were found with 5.51 grams
              of methamphetamine in your experience would that be
              considered, would you consider that more of a dealer weight or
              user weight?


      Id. at 69-70. Bailey objected to this question because he contended that the State

      was asking Sergeant Eads to conclude that Bailey was a drug dealer. The trial

      court overruled Bailey’s objection. The testimony continued as follows:


              Q: In your experience that amount of methamphetamine, 5.51
              grams, is that consistent with, in your experience, with the use of
              narcotics or dealing narcotics?

              A: It would be more of a dealing amount so that would be more
              than a personal use amount in my opinion.


      Id. at 70-71.


[8]   Later in the trial, Bailey objected to the following testimony from Sergeant Eads

      on the same grounds:


              Q: Now one quick question. In your training and experience,
              Detective Eads, is there a particular way that you would describe
              the items that were found in the backpack as you observed them
              based on your training and experience?

              A: Yes. As I may have mentioned earlier, I’ve done training,
              presented training, presented classroom presentations to schools
              and in public groups alike and part of those presentations often
              involves taking actual items that we recovered in previous arrests
              that have been disposed of and showing people what things look
              like that are used in this kind of stuff. Meth lab presentations, used
              to do a lot of those. If I was going somewhere to do a presentation

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 5 of 16
               on, on what a drug dealer might have I could have just taken this
               backpack. It had, you know, everything you needed; product,
               bags, scales, money, protection.


       Id. at 93. Once again, the trial court overruled Bailey’s objection.


[9]    On the second day of the jury trial, the trial court held a separate proceeding

       regarding the State’s claims that Bailey was an habitual offender. To support

       these claims, the State presented charging informations filed in causes 82D02-

       0911-FD-1097, 82D02-1108-FD-861, and 82C01-1506-F6-3369, in which a man

       named Darion Bailey was charged with felony intimidation, felony failure to

       return to lawful detention, and felony resisting law enforcement, respectively.

       The State also presented the certified chronological case summaries and

       abstracts of judgment to supplement this charging information. The Darion

       Bailey listed on the charging information and the Darion Bailey on trial shared

       the same name, birthdate, social security number, Indiana driver’s license

       number, height, and body weight within a ten-pound range. Bailey objected to

       the introduction of these documents, arguing that the biographical information

       constituted inadmissible hearsay. The trial court overruled Bailey’s objection

       and admitted the evidence.


[10]   At the conclusion of trial, the jury found Bailey guilty on all counts except for

       Counts VIII and IX. The jury also found that Bailey was an habitual offender.

       At the April 4, 2018, sentencing hearing, the trial court sentenced Bailey to

       concurrent terms of twenty-five years for Count I; three years for Count III;

       four years for Count IV; five years for Count V; 180 days for Count VI; and one

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 6 of 16
       year for Count VII. The trial court vacated the conviction for Count II on

       double jeopardy grounds. The trial court also enhanced the Count I sentence by

       twenty years due to the habitual offender adjudication, for an aggregate

       sentence of forty-five years. Bailey now appeals.


                               Discussion and Decision

                               I. Admission of Evidence
[11]   First, Bailey argues that the trial court erroneously admitted Sergeant Eads’s

       testimony because it reached a legal conclusion, thereby warranting a reversal

       of his conviction for Level 2 felony possession of methamphetamine with the

       intent to deliver.


[12]   Reversal of a trial court’s admissibility determinations is appropriate only where

       the decision is clearly against the logic and effect of the facts and circumstances.

       Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997). “Moreover, we will sustain the

       trial court[’s] [decision on the admission of certain evidence] if it can be done

       on any legal ground apparent in the record.” Jester v. State, 724 N.E.2d 235, 240

       (Ind. 2000).


[13]   Specifically, Bailey argues that Sergeant Eads’s testimony about the amount of

       methamphetamine users typically keep versus the amount dealers typically keep

       inappropriately concluded that Bailey was a dealer, which is a conclusion that

       only the jury was permitted to reach. Additionally, Bailey contends that

       Sergeant Eads’s testimony about a standard “hypothetical” drug dealer’s
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 7 of 16
       backpack inappropriately reached the same conclusion about Bailey because

       Sergeant Eads referred pointedly to Bailey’s backpack.


[14]   Indiana Evidence Rule 704(a) states that “[t]estimony in the form of an opinion

       or inference otherwise admissible is not objectionable just because it embraces

       an ultimate issue.” Therefore, as long as the evidence proffered only

       “embraces” an issue in the form of an opinion or inference, there is no

       violation. However, Indiana Evidence Rule 704(b) explicitly states that

       “[w]itnesses may not testify to opinions concerning intent, guilt, . . . or legal

       conclusions.” Only a jury may reach such conclusions because the jury is the

       ultimate trier of fact.


[15]   Our Supreme Court has defined the contours of Rule 704 with the following

       analysis:


               Taken together, those principles [found in Rules 704(a) and
               704(b)] establish that even in criminal cases, opinion testimony
               may include “evidence that leads to an [incriminating] 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) (second alteration in original) (emphasis added) (quoting 13
               Robert L. Miller, Jr., Indiana Practice Series § 704.201 at 589 (3d ed.
               2007)). But an opinion must stop short of the question of guilt—
               because under Rule 704(b) and our constitution, that is the one
               “ultimate issue” that the jury alone must resolve.


       Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). In other words, a witness can

       give opinions that might lead to an incriminating inference, but the witness

       cannot then reach conclusions about someone’s guilt, innocence, or intent

       based off those opinions.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 8 of 16
[16]   We cannot say that Sergeant Eads’s testimony about the amount of

       methamphetamine a dealer typically keeps on his person is a legal conclusion.

       The State properly asked Sergeant Eads about his credentials— namely, his

       education in the field of narcotics and drug dealing, and his extensive

       experience working in this area as part of the Evansville Police Department.

       Then, with this information presented to the jury, the State asked Sergeant Eads

       a series of questions, based on his experience and training, about the amount of

       methamphetamine a recreational drug user would keep on his person versus the

       amount a drug dealer would keep on his person. Sergeant Eads responded with

       the following:


               A: User amounts, like I said, are a lot smaller generally than what
               we find in a dealing situation. The user amount I would say is
               typically a gram or less and an example I have given in the past of
               a gram is like a Sweet and Low packet that you put in your drink
               or whatever, that’s about a gram of stuff in there so talking about a
               pretty small amount and a lot of that is due to the price, you know,
               the lifestyle. They just don’t have enough money to afford to have
               it. It’s not like you go to Sam’s and stock up because it’s cheap.
               The price is and you can only get what you can afford and the
               amounts are smaller.

       Tr. Vol. II p. 69-70. Additionally, Sergeant Eads testified that 5.51 grams of

       methamphetamine was “more of a dealing amount so that would be more than

       a personal use amount in my opinion.” Id. at 71.


[17]   At no point in this testimony did Sergeant Eads state that Bailey was a dealer or

       that he had the requisite intent to deliver or sell methamphetamine. Rather, this

       testimony represented Sergeant Eads’s opinions on narcotics operations and the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 9 of 16
       characteristics of how drug dealers operate based on his particular expertise. At

       most, Sergeant Eads’s statements represented evidence leading to incriminating

       inferences, but such statements are permissible under Rules 704(a) and 704(b).

       Furthermore, if it has been shown that a police officer has enough experience in

       the area, he may give an opinion on whether or not drugs are held for sale or

       for personal use without violating any evidentiary stricture. See Powers v. State,

       440 N.E.2d 1096, 1106 (Ind. 1982).


[18]   We also cannot say that Sergeant Eads’s testimony about a typical drug dealer’s

       backpack in relation to what he found in Bailey’s backpack amounted to a legal

       conclusion. The same analysis applies to the following testimony:


               A: Yes. As I may have mentioned earlier, I’ve done training,
               presented training, presented classroom presentations to schools
               and in public groups alike and part of those presentations often
               involves taking actual items that we recovered in previous arrests
               that have been disposed of and showing people what things look
               like that are used in this kind of stuff. Meth lab presentations, used
               to do a lot of those. If I was going somewhere to do a presentation
               on, on what a drug dealer might have I could have just taken this
               backpack. It had, you know, everything you needed; product,
               bags, scales, money, protection.

[19]   Tr. Vol. II p. 93. Once again, Sergeant Eads was testifying, based on his

       education and experience, that this backpack was typical of a drug dealer.

       Unlike the expert witness who plainly affirmed that the defendant had

       committed four rapes in Ross v. State, 516 N.E.2d 61, 63 (Ind. 1987), Sergeant

       Eads was merely highlighting the actions, paraphernalia, and criminal conduct




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 10 of 16
       he has witnessed and studied over the course of his law enforcement career.

       Therefore, the trial court did not err in admitting this testimony.


[20]   Moreover, even if there was error, it was, at most, harmless error. The improper

       admission of evidence is harmless error if the conviction is supported by

       substantial, independent evidence of guilt satisfying us that there is no

       substantial likelihood the challenged evidence contributed to the conviction.

       Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011).


[21]   Here, there was substantial, independent evidence supporting Bailey’s felony

       possession of methamphetamine with the intent to deliver conviction. Not only

       did he keep large amounts of methamphetamine on his person, but his

       backpack contained a loaded handgun, a cigarette cellophane containing

       prescription medication, a prescription bottle with marijuana buds inside, a

       container of marijuana weighing 26.63 grams, multiple digital scales, individual

       baggies filled with methamphetamine, a jar containing methamphetamine

       weighing 5.51 grams, and $481 in cash. The jury could have used this evidence

       to convict Bailey of felony possession of methamphetamine with the intent to

       deliver. McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct. App. 1993) (holding that

       “[c]ircumstantial evidence of intent to deliver, such as possession of a large

       quantity of drugs, large amounts of currency, scales, plastic bags, and other

       paraphernalia . . . can support a conviction[]”). Additionally, Sergeant Eads

       testified for a long time, and the jury trial took place over the course of two days

       with multiple other witnesses and exhibits. So, there was not a substantial

       likelihood that this isolated evidence contributed to Bailey’s conviction.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 11 of 16
                    II. Habitual Offender Adjudication

                              A. Admission of Evidence
[22]   Bailey next argues that the trial court erred when it admitted charging

       informations during the habitual offender proceeding because it was

       inadmissible hearsay.


[23]   We will overrule a trial court’s ruling on the admission of evidence only when

       the ruling is clearly against the logic and effect of the facts and circumstances

       before it. Halliburton v. State, 1 N.E.3d 670, 675 (Ind. 2013).


[24]   Specifically, Bailey contends that the State introduced the current charging

       information to show that Bailey’s social security number and birthdate matched

       the name, birthdate, and social security number found on the charging

       informations and chronological case summaries for the predicate felonies. And,

       because this charging information contained out-of-court statements—

       biographical information—it was proffered to prove the truth of the matter

       asserted, thereby amounting to inadmissible hearsay.


[25]   Pursuant to Indiana Evidence Rules 801(b) and 801(c), hearsay statements—

       those made by someone other than the declarant to prove the truth of the matter

       asserted—are generally inadmissible. However, hearsay statements are

       admissible if they fall under one of any number of exceptions. One such

       exception is the public records exception, and public records are defined as:


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 12 of 16
               (A) A record or statement of a public office if:

                        (i) it sets out:

                                (a) the office’s regularly conducted and regularly recorded
                                activities;

                                (b) a matter observed while under a legal duty to [observe
                                and] report; or

                                (c) factual findings from a legally authorized investigation;
                                and

                        (ii) neither the source of information nor other circumstances
                        indicate a lack of trustworthiness.

       Ind. Evidence Rule 803(8)(A).


[26]   Bailey contends that the charging informations for these current and predicate

       offenses are not public records and are not excepted because they are police

       investigative reports and represent factual findings offered by the government.

       Pursuant to Indiana Evidence Rule 803(8)(B), such documents/findings are not

       public records and are not excepted from the rule against hearsay. We find

       Bailey’s argument unavailing.


[27]   In Fowler v. State, our Court held that police records created in connection with

       routine booking procedures fall under the public records exception because they

       are unambiguous, ministerial, and objective matters made in non-adversarial

       settings. 929 N.E.2d 875, 879 (Ind. Ct. App. 2010). The same analysis applies

       to the charging informations in this case. The State proffered certified records of

       charging information for the current offenses in addition to charging

       informations and chronological case summaries for the predicate offenses.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 13 of 16
       These documents do not contain factual findings and are not investigative

       reports. Rather, they were offered for their identification materials—namely,

       birthdates, social security numbers, height, and weight. These facts are not

       factual findings accumulated by the government in a criminal case, but rather,

       information that properly identifies a criminal suspect and registers him with

       the criminal justice system. Furthermore, even if the charging information is

       more subjective and investigative in nature, the biographical information was

       obtained and recorded in the course of a ministerial, nonevaluative charging

       process. Id. As such, the trial court did not err in admitting this charging

       information.


                              B. Sufficiency of Evidence
[28]   Finally, Bailey argues that the evidence was insufficient to support the finding

       that he is an habitual offender.


[29]   If the evidence yields logical and reasonable inferences from which the finder of

       a fact may determine beyond a reasonable doubt that it was that defendant that

       was convicted of the prior felony, then a sufficient connection has been shown.

       Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002). It is not our job to reweigh the

       evidence or to judge the credibility of the witnesses, and we consider any

       conflicting evidence most favorably to the trial court’s ruling. Wright v. State,

       828 N.E.2d 904, 906 (Ind. 2005).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 14 of 16
[30]   We have already determined that the trial court’s admission of the charging

       informations for both this offense and the predicate felonies was not in error.

       And, our Court has already concluded that a charging information, standing

       alone, with key biographical information that corresponds with previously

       certified records, constitutes sufficient evidence to support a finding that the

       defendant is an habitual offender. See, e.g., Gentry v. State, 835 N.E.2d 569, 574

       (Ind. Ct. App. 2005) (holding that a “reasonable jury could certainly find that

       the matching names, dates of birth, and social security numbers were sufficient

       to prove that the individual discussed in the documents was the present

       appellant[]”); Tate v. State, 835 N.E.2d 499, 510 (Ind. Ct. App. 2005) (holding

       that use of certified copies of judgments or commitments containing a

       defendant’s name or a similar name may be introduced to prove commission of

       prior felonies); Lewis v. State, 769 N.E.2d 243, 246-47 (Ind. Ct. App. 2002)

       (holding that charging information from predicate convictions that contains the

       same social security number and general identifying information as current

       documents is enough to determine that an individual is an habitual offender).


[31]   Accordingly, our inquiry ends here. Even though the State presented no

       witnesses, the charging informations and chronological cases summaries

       containing key biographical information were enough. The name, birthdate,

       social security number, Indiana driver’s license number, and height were the

       same on both sets of documents. A reasonable trier of fact could conclude that

       Bailey is an habitual offender.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 15 of 16
[32]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019   Page 16 of 16
