MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                           Jan 22 2019, 6:34 am
regarded as precedent or cited before any
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie Boots                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana

Susan D. Rayl                                            Matthew B. MacKenzie
Smith Rayl Law                                           Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Zechariah Brian James,                                   January 22, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1086
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1607-F2-026238



Barnes, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019                    Page 1 of 10
                                          Statement of the Case
[1]   Zechariah James appeals from his conviction of one count of dealing in a
                          1
      narcotic drug as a Level 2 felony, contending that the trial court abused its

      discretion or committed fundamental error by allowing an officer to testify as a

      skilled witness during his bench trial. We affirm.


                                                     Issue
[2]   The sole issue presented for appeal is as follows: whether the trial court erred in

      allowing a detective with more than twenty years of experience in law

      enforcement, including supervising undercover narcotics purchases, to testify as

      a skilled witness.


                                   Facts and Procedural History
[3]   On the afternoon of July 6, 2016, Indianapolis Metropolitan Police Department

      Detectives Michael Condon and Gabriel Cuevas went to America’s Best Value

      Inn with an active warrant to arrest James for murder. Prior to arriving at that

      location, the officers were alerted that James had exited the east side of the

      building and had entered a vehicle.


[4]   Law enforcement officers approached James, who was sitting in the front

      passenger seat of the vehicle and arrested him without incident pursuant to the

      warrant. The officers performed a search incident to arrest that resulted in the



      1
          Ind. Code § 35-48-4-1(e)(1) (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019   Page 2 of 10
      seizure of approximately fifty-five grams of heroin located in the left front

      pocket of James’ pants. The heroin had been packaged in knotted plastic

      baggies and was divided into quantities of 41.45 grams, 10.46 grams, 1.17

      grams, and .52 grams and placed in a larger plastic bag. During that search,

      officers also seized approximately $2,800 in cash that was folded and wrapped

      with a rubber band, identification cards, and cell phones. There were no items

      of paraphernalia recovered as part of the search.


[5]   On July 8, 2016, James was charged with dealing in a narcotic drug and

      possession of a narcotic drug, and was alleged to be an habitual offender. A

      bifurcated bench trial took place on April 6 and April 9, 2018. During the

      bench trial, Detectives Condon and Cuevas testified about their experience with

      encountering narcotics during investigations. A forensic scientist from the

      Marion County Crime Lab testified about his findings and report after testing,
                                                                                                          2
      identifying, and weighing the heroin submitted for his review in this case.

      James was convicted of dealing in a narcotic drug and possession of a narcotic
               3
      drug. The trial court sentenced James to eighteen years in the Department of

      Correction for dealing in a narcotic drug. James now appeals.




      2
       Marijuana was also found, tested, and identified. The State, however, dismissed all charges related to the
      marijuana that was seized.
      3
          The State dismissed the habitual offender enhancement during the trial.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019                 Page 3 of 10
                                   Discussion and Decision
[6]   James argues that the trial court abused its discretion by allowing Detective

      Condon to testify as a skilled witness that James’ possession of that quantity of

      heroin and cash was consistent with amounts possessed by heroin dealers.

      James argues in the alternative that if Detective Condon’s continued testimony

      as a skilled witness, despite James’ objections, is considered to be a waiver of

      the argument, the error was nonetheless fundamental error. In either event,

      James urges this Court to reduce his conviction to possession of a narcotic drug

      for which he should be resentenced by this Court or the trial court.


[7]   A trial court has broad discretion in ruling on the admissibility of evidence.

      Dycus v. State, 108 N.E.3d 301, 303 (Ind. 2018). Ordinarily, a reviewing court

      will disturb a trial court’s rulings on the admissibility of evidence only where it

      has abused its discretion. Id. A trial court abuses its discretion if its decision is

      clearly against the logic and effect of the facts and circumstances before it, or if

      it misapplies the law. Id.


[8]   In Kubsch v. State, 784 N.E.2d 905, 922 (Ind. 2003), the Supreme Court stated

      the following about skilled and expert witnesses:


              Although a witness may not be qualified to offer expert
              testimony under Indiana Evidence Rule 702, the witness may be
              qualified as a ‘skilled witness’ (sometimes referred to as a ‘skilled
              lay observer’), . . .under Indiana Evidence Rule 701. A skilled
              witness is a person with a ‘degree of knowledge short of that
              sufficient to be declared an expert under [Indiana Evidence] Rule
              702, but somewhat beyond that possessed by the ordinary jurors.’

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019   Page 4 of 10
                Under Indiana Evidence Rule 701, a skilled witness may provide
                an opinion or inference that is ‘(a) rationally based on the
                perception of the witness and (b) helpful to a clear understanding
                of the witness’s testimony or the determination of a fact in issue.’


       (internal citations omitted). Perception and perceive have been defined,

       respectively, as “the process, act, or faculty of perceiving. . . .insight, intuition,

       or knowledge gained by perceiving,” and “to become aware of directly through

       any of the senses,” especially sight or hearing. Id. The Supreme Court

       concluded the officer’s testimony should not have been admitted in Kubsch

       because it was not rationally based upon his perceptions at the scene of the

       crime.


[9]    In Davis v. State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003), trans. denied, the

       condition that a skilled witness’s opinion be rationally based was defined as

       meaning that “the opinion must be one that a reasonable person could normally

       form from the perceived facts.” For an opinion to be helpful, it means in

       pertinent part that “the testimony gives substance to facts, which are difficult to

       articulate.” Id. at 269. The officer’s testimony in Davis was properly admitted

       because the State had laid an appropriate foundation supporting the officer’s

       training and expertise for his opinion about what someone possessing a package

       of that quantity of narcotics would intend to do with the substance. Id.


[10]   At the time of his testimony, Detective Condon had worked in law enforcement

       for twenty years and had worked for IMPD for sixteen of those twenty years.

       As a detective with the IMPD violent crimes unit Condon had been involved in


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019   Page 5 of 10
       controlled purchases of heroin, using either an undercover detective or a

       confidential informant for those purchases. He testified that the undercover

       officers or informants would purchase one or two grams of heroin for the

       purchase price of anywhere from $60 to $250. He further testified that heroin

       that is purchased as one or two grams is usually packaged in aluminum tinfoil.

       He identified the paraphernalia frequently used by addicts to ingest heroin and

       also testified about the physical signs exhibited by heroin addicts.


[11]   Detective Condon added that confidential informants or undercover detectives

       will purchase drugs from a target three to four times a week in part to build a

       rapport with the dealer. Dealers do not find it unusual for addicts to purchase

       the same amount several times during the week. He also stated that users

       generally do not have enough money to buy a bulk amount of narcotics and if

       they did buy a large amount they would likely overdose.


[12]   Condon testified that unlike users, dealers he has arrested will be in possession

       of ten or more ounces of a narcotic, with an ounce being approximately twenty-

       eight grams. In general, dealers he had arrested were not also in possession of

       paraphernalia.


[13]   On cross-examination, Detective Condon testified that although he was a

       detective in the violent crimes unit and had never been a narcotics detective, he

       had attended narcotics detective school and undercover detective school in

       addition to training sessions provided by the law enforcement academy. He




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019   Page 6 of 10
       testified that he had also been involved in executing search warrants on the

       homes of drug dealers.


[14]   The following are the three objections made by James’ counsel during Detective

       Condon’s testimony and the trial court’s rulings on the same:


               Q: - - I guess generally speaking what is heroin?
               A: Heroin is a narcotic that is extremely, highly addictive -


               [Defense counsel]: Objection judge[.] [A]t this point [what] he
               says [is] fine as to what the specific drug is, saying he’s testifying
               about his experience with [the] drug[.] [B]ut he’s not a chemist[.]
               [H]e’s not a Doctor[.] I don’t know that he’s laid a proper
               foundation to testify as to what heroin is, and what the effects of
               it may be or anything along those lines.


               [The Court]: I’ll sustain [the objection] as to the detective’s last
               comment maybe be [sic] - - his expertise not in the technical
               sense but based on his training experience there might be a [sic],
               more for the foundation later[,] but at this point I’ll sustain the
               objection.


                                                      ****


               Q: When somebody is purchasing the 60s had [sic] to $200 range
               of heroin how often are they going to see their heroin dealer?


               [Defense counsel]: Objection judge[.] I think that goes beyond
               his personal knowledge and is also speculation.


               [The Court]: Why don’t you rephrase.


                                                      ****



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019   Page 7 of 10
               Q: Let’s talk about heroin dealers now[.] [A]re they typically
               using their own product?


               A: Typically[,] no.


               Q: Why don’t you often come across heroin users or heroin
               dealers who are also users?


               A: - - number one they’d never be successful because they will be
               using their own product and -


               [Defense counsel]: Objection judge[.] I think this goes into sort
               of opinion testimony that’s not really backed up by any kind of
               foundation that this person is expert on you know heroin dealers.
               He’s a violent crimes detective[.] [H]e’s been a violent crimes
               detective his entire detective career[.] [T]o my knowledge she’s
               [sic] never been a narcotics detective[.] I don’t [know] what
               special training he has in narcotics[.] I appreciate that he has
               been involved in some undercover buys[,] but at this point I think
               his testimony is going onto just basically his own personal
               opinion.


               [The Court]: Perhaps [the State,] and understand again [this is
               being] tried to the court as opposed to a jury, but perhaps a
               further expansion on his training experience in narcotics offenses
               may be helpful. I will find that you know assuming that can be
               established of this detective will be operating as a skilled witness,
               not an expert witness[.] [S]ome witnesses are allowed to render
               opinions based on their experience so.


               [The State]: Thank you judge.


       Tr. Vol. II, pp. 57-62.


[15]   We do not find that the argument has been waived. James’ counsel objected to

       testimony that would require speculation and argued to limit Detective

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019   Page 8 of 10
       Condon’s testimony to opinions rationally based on his perceptions and

       experience. Even so, Detective Condon demonstrated a degree of knowledge

       beyond that of ordinary jurors, and his testimony met the requirements of Rule

       701. The trial court did not abuse its discretion by allowing Detective Condon

       to testify as a skilled witness.


[16]   Further, even if the argument had been waived, the admission of Detective

       Condon’s testimony does not amount to fundamental error, an extremely

       narrow exception to the waiver rule. James has not established that the alleged

       errors were so prejudicial to his rights such that he was denied a fair trial. See

       Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (fundamental error is narrow

       exception to waiver rule where defendant bears burden of showing errors so

       prejudicial to his rights that fair trial is impossible).


[17]   Ryan Farrell, a forensic scientist in the Marion County Crime Lab, testified

       about his findings and report after testing, identifying, and weighing the heroin

       submitted for his review in this case. He testified without objection to the

       identification of the substance and the amounts contained in each of the

       separate bags. Detective Condon testified without objection to the amount of

       heroin generally purchased by users or addicts and amounts of heroin generally

       possessed by drug dealers. Assuming for the sake of argument that the issue

       was waived, James has not met his burden of establishing fundamental error.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019   Page 9 of 10
                                                Conclusion
[18]   For the reasons stated above, the trial court did not abuse its discretion in

       admitting the testimony of a skilled witness.


[19]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019   Page 10 of 10
