MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Dec 18 2019, 10:59 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Joel M. Schumm                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

Janet L. Wheeler                                        Tyler G. Banks
Certified Legal Intern                                  Supervising Deputy Attorney
Indiana University–Robert H.                            General
McKinney School of Law                                  Indianapolis, Indiana
Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Travon D. Blow,                                         December 18, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1183
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Richard E.
                                                        Hagenmaier, Commissioner
                                                        Trial Court Cause No.
                                                        49G21-1711-F2-43236



Najam, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019                 Page 1 of 22
                                       Statement of the Case
[1]   Travon D. Blow appeals his convictions for dealing in a narcotic drug, as a

      Level 3 felony, and dealing in cocaine, as a Level 4 felony, following a jury

      trial. Blow raises three issues for our review, which we restate as follows:


              1.      Whether the trial court erred when it denied Blow’s
                      request to proceed pro se, which request was accompanied
                      by a request for counsel and, in any event, was made for
                      the first time following the close of the evidence.


              2.      Whether the trial court improperly relied on defunct
                      principles of res gestae when the court admitted into
                      evidence certain text messages seized from Blow’s cell
                      phone.


              3.      Whether the trial court erred when it permitted a detective
                      to testify that certain evidence was consistent with or
                      indicative of dealing in narcotics or being a dealer in
                      narcotics.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On November 4, 2017, Indianapolis Metropolitan Police Department

      (“IMPD”) Officer Christopher Cooper initiated a traffic stop of a vehicle being

      driven by Blow on the west side of Indianapolis. After Officer Cooper activated

      his emergency lights, Blow stopped his vehicle next to a gas pump at a nearby

      gas station and exited the vehicle. Officer Cooper observed Blow get out of his

      vehicle, drop a cell phone on the ground, and then reach his arm out of Officer

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 2 of 22
      Cooper’s immediate view but near the area of a trash bin. Officer Cooper

      ordered Blow to return to the vehicle, which he did, and Officer Cooper called

      for backup.


[4]   After other IMPD officers arrived on the scene, Officer Cooper searched the

      trash bin near where he had observed Blow place his arm. There was trash

      inside the bin, but it was not “all the way full.” Tr. Vol. II at 179. However,

      “on the top of everything that was in the” trash bin, Officer Cooper observed a

      clear plastic baggie with “several foil bindles” inside of it. Id. at 178. Officer

      Cooper looked more closely at the foil bindles and observed “white powder

      rock substances inside and also brown tannish substances,” which he

      recognized from his training and experience to be crack cocaine and heroin

      packaged for distribution. Id. at 179. Officer Cooper then placed Blow under

      arrest and searched Blow’s person, seizing $574 in cash, mostly in twenty dollar

      bills. A later analysis determined that the baggie in the trash bin contained at

      least 1.29 grams of cocaine and 5.57 grams of heroin. 1 Officers also seized the

      cell phone.


[5]   The State charged Blow, in relevant part, with dealing in a narcotic drug, as a

      Level 3 felony, and dealing in cocaine, as a Level 4 felony. Officer Cooper

      testified at Blow’s ensuing jury trial, as did a chemist for the Marion County

      Forensics Services Agency. The State also called Samuel LaCorte, a certified



      1
        There was not enough of either substance to charge higher-level felonies, and so the laboratory did not
      conduct further tests.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019                Page 3 of 22
      cell phone data extractor, and during his testimony the State had admitted into

      evidence numerous records from the cell phone seized at the gas station. Those

      records included text messages between Blow and an individual identified as

      “Wiz” in which Blow stated, for example: “I got 7 hun for 10 . . . u think i can

      get some extras for my [b]i[r]thday?”; “Can u bring the 10 to the house when u

      come tonight. i got the 7 . . . ”; “I gotta use the scale bruh. can i come thru”;

      “Left my scale at home. so when u get t[h]is way i need 2 use yours. let me

      kno bro”; “Around the corner. Comin up the alley”; “Get 8 of em ready for me

      real quick bro . . . .”; “I need 10 bro”; “Need 15”; “15 bro”; “Need 15”; “One is

      a stack fifty . . . the other is a G . . . .”; “20 . . . jus take a g . . . and ima slide

      down on u with the rest!” Ex. Vol. I at 69-70. Blow objected to the admission

      of the text messages between him and Wiz under Indiana Evidence Rule

      404(b). Tr. Vol. II at 55-56, 217. The trial court overruled Blow’s objection.


[6]   The State also called IMPD Detective Ryan Vanoeveren as a witness.

      Detective Vanoeveren has fifteen years of experience in narcotics investigations

      and has been involved in “hundreds” of cases involving heroin and a “similar”

      number involving cocaine. Id. at 225. After some background, the State began

      to ask Detective Vanoeveren questions about the baggie Office Cooper

      discovered in the trash bin. At that point, Blow objected on the ground that any

      questions as to “whether or not this evidence in particular is consistent with

      dealing or possession with intent to deal” would require Detective Vanoeveren

      to impermissibly testify to a “final conclusion” that was “the job of the jury to

      figure out . . . .” Id. at 240-41. The court overruled Blow’s objection.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 4 of 22
[7]   Detective Vanoeveren then testified that the baggie appeared to contain “illegal

      narcotics” that had been “individually bagged up . . . for sale,” which was in his

      training and experience “consistent with . . . dealing.” Id. at 241. He testified

      that the street value of each foil bindle of heroin in the baggie was $20. He

      further testified that he had never personally encountered a user with “more

      than 10 bindles on them,” let alone fifty-eight. Id. at 242-43. He testified that

      that much heroin was “consistent with” a “dealer.” Id. at 243.


[8]   When then asked “what conclusion if any” he could make from the amount of

      the cocaine found in the baggie, Detective Vanoeveren testified, “[a]ll together

      it’s dealing” and that it was “[a]ll consistent with dealing.” Id. at 243. He

      added that the amount of cocaine in each foil bindle had a street value of $20.

      He again testified that he had never encountered a user “that has more than 10”

      such bindles, let alone the twenty-seven that were in the plastic baggie. Id. at

      244. And he testified that the amount of cocaine in total was “indicative” of a

      “[d]ealer” and not a user. Id.


[9]   The State proceeded to ask Detective Vanoeveren about the “$574 in cash”

      found on Blow and whether “that amount of cash [was] indicative of using or

      dealing . . . .” Id. at 244-45. Blow objected and “re-state[d]” his “objection

      from previously.” Id. at 245. The court overruled Blow’s objection. Detective

      Vanoeveren testified that the number of twenty dollar bills in particular found

      on Blow was “consistent with somebody who’s dealing.” Id. at 246.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 5 of 22
[10]   The State then “move[d] on to some text messages” recovered from Blow’s cell

       phone. Id. In reviewing those text messages, Detective Vanoeveren testified,

       without objection, that Wiz appeared to be a “supplier,” that the text messages

       “indicate[d]” that the “relationship between Wiz and this target phone is a drug

       dealing relationship,” and that the messages were “consistently ordering

       drugs.” Tr. Vol. III at 3-5. Detective Vanoeveren further testified that the

       reference to scales in those messages was consistent with dealing, though it was

       “certainly possible” for a user to also have scales. Id. at 4. And Detective

       Vanoeveren concluded by agreeing that the text messages

       “overall . . . indicat[ed] drug conversation.” Id. at 7.


[11]   After the close of the State’s case-in-chief and outside the presence of the jury,

       Blow’s counsel informed the court that the defense intended to rest. Id. at 18.

       The following colloquy then occurred between the court, Blow, and the

       attorneys:


               THE COURT: Mr. Blow, did you have something you want to
               say?


               DEFENDANT: Yes. There is a strong conflict of interest, and I
               do not feel that proceeding to trial with this conflict of interest
               with my attorney here is . . . affording me a fair trial. I would
               like to go pro se.


               THE COURT: Well, you can’t go pro se during the middle of
               the trial . . . . The State has rested. Are you going to testify or
               put on a defense? . . .



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 6 of 22
        DEFENDANT: There’s a conflict of interest, Your Honor.


                                           ***


        THE COURT: What is the conflict of interest?


                                           ***


        DEFENDANT: We aren’t seeing eye to eye. . . . [T]here’s
        confusion between us.


        THE COURT: You mean you just don’t get along with them
        [your two attorneys], right?


        DEFENDANT: There’s a conflict of interest. . . .


        THE COURT: Alright. It seems to me that you [are] . . . just
        expressing displeasure with your attorneys, not that there’s
        actually a conflict of interest. . . . [S]o one more time, sir, are
        you going to testify or not? . . . We’re not gonna hold up these
        proceedings much longer?


                                           ***


        DEFENDANT: I want to share something with the court[],
        please?


        THE COURT: Yes, Sir.


        DEFENDANT: Um, the oath of attorney, Rule 22, states that I
        do solemnly swear or affirm that I will support the Constitution



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 7 of 22
        of the United . . . States and the Constitution of the State of
        Indiana. . . .


                                           ***


        THE COURT: What’s your motion?


        DEFENDANT: My motion is to be afforded a fair trial and to
        go pro se.


        THE COURT: Okay. I deny your right to [proceed] pro se.
        Bring the jury back in.


                                           ***


        [DEFENSE COUNSEL]: . . . [I]f I could request 10
        minutes . . . .


        THE COURT: No, we’re done. We’re not gonna take any more
        time on this.


        [DEFENSE COUNSEL]: . . . [A]s far as Mr. Blow testifying, I
        have advised him I believe it’s not in his best interest.


        THE COURT: Okay.


        [DEFENSE COUNSEL]: . . . [W]e have talked about it and he
        has agreed that it is not in his best interest.


        THE COURT: Okay.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 8 of 22
        [DEFENSE COUNSEL]: So, I just wanted to put that on the
        record.


        THE COURT: Alright. So, we are going to proceed. . . .


        [THE PROSECUTOR]: Judge, I’m sorry. . . .


        THE COURT: . . . [W]hat do you want to do?


        [THE PROSECUTOR]: He’s invoked his right to go pro se.


        THE COURT: He’s not going pro se. I denied that.


        [THE PROSECUTOR]: Okay. But I think the court should
        have a hearing with him on that issue before moving along.


                                           ***


        THE COURT: . . . [N]o matter what he tells me, he’s not going
        to now go pro se during the middle of the trial. How far did you
        go in school, Mr. Blow?


        DEFENDANT: What I mean by going pro se is to be afforded
        some time to continue the furtherance of my investigation of my
        own case.


        THE COURT: No, no, no, we’re not going to that. You want to
        represent yourself, is that what you’re saying?


        DEFENDANT: I want to afford an attorney that will represent
        me according to my likeness.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 9 of 22
               THE COURT: Okay. Alright. I think . . . the gist of this is that
               he’s just not happy with his attorneys. He doesn’t think they’re
               doing what is in his best interest. He’s just telling me he wants to
               go with another attorney. You’re not getting a continuance.
               You’re not competent to represent yourself at this point because
               of what’s going on. So, we are gonna bring the jury out, and I’m
               gonna ask you if you rest or not. . . .


       Id. at 19-23. The court then called the jury back in, and defense counsel rested.

       After closing statements, the jury found Blow guilty of dealing in a narcotic

       drug, as a Level 3 felony, and dealing in cocaine, as a Level 4 felony. The court

       entered its judgment of conviction and sentenced Blow accordingly, and this

       appeal ensued.


                                      Discussion and Decision
                      Issue One: Blow’s Purported Request to Proceed Pro Se

[12]   On appeal, Blow first asserts that the trial court erred under the Sixth

       Amendment to the United States Constitution and under Article 1, Section 13

       of the Indiana Constitution when it denied his purported request to proceed pro

       se. “A request to proceed pro se is a waiver of the right to counsel, and

       consequently, there are several requirements to invoking the right of self-

       representation successfully.” Stroud v. State, 809 N.E.2d 274, 279 (Ind. 2004).

       “A defendant’s request must be clear and unequivocal, and it must be made

       within a reasonable time prior to the first day of trial.” Id. (cleaned up); see also

       Sherwood v. State, 717 N.E.2d 131, 135 (Ind. 1999) (citing Hunt v. State, 459

       N.E.2d 730, 733 (Ind. 1984)).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 10 of 22
[13]   A defendant’s request is not “clear and unequivocal” where, in making the

       request, he “vacillate[s] between representing himself and being represented by

       counsel.” Stroud, 809 N.E.2d at 280. And the “[f]ailure to make a timely

       request is deemed a waiver” of the right to proceed pro se. Hunt, 459 N.E.2d at

       733. “[M]orning-of-trial requests are per se untimely.” Moore v. State, 557

       N.E.2d 665, 669 (Ind. 1990). The “denial of such a request is permissible.”

       Hotep-El v. State, 113 N.E.3d 795, 809 (Ind. Ct. App. 2018), trans. denied.


[14]   Blow’s purported request to proceed pro se was not “clear and unequivocal” and

       also was not timely. See Stroud, 809 N.E.2d at 279. Following the close of the

       State’s case-in-chief, Blow informed the trial court that he wanted to proceed

       “pro se.” Tr. Vol. III at 19. The court’s initial reaction was to deny the request

       as untimely, given that Blow first made the request not even as early as the

       morning of trial but only after all the evidence had already been presented.

       Nonetheless, the court inquired 2 with Blow about his purported request, and in

       his colloquy with the court Blow stated that he wanted “some time to continue

       the furtherance of my investigation of my own case” and that he “want[ed] to

       afford an attorney that will represent me according to my likeness.” Id. at 23.


[15]   The trial court had no obligation to grant Blow’s end-of-trial request. Blow’s

       request vacillated between going forward pro se and going forward with different

       counsel. As such, his request was not a clear and unequivocal invocation of the



       2
         Although the court was understandably frustrated with Blow’s maneuver, we reject Blow’s assertion on
       appeal that “the court refused to evaluate the merits” of his request. Appellant’s Br. at 10.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019            Page 11 of 22
       right to proceed pro se. Stroud, 809 N.E.2d at 280. Moreover, if a morning-of-

       trial request is per se untimely, Blow’s request—which came after the close of

       evidence and, contrary to Blow’s assertions on appeal, was accompanied by a

       request for a continuance to conduct further evidentiary investigation 3—was as

       untimely as it gets. The trial was effectively over. The court acted within its

       discretion in denying Blow’s request.


[16]   We also briefly address Blow’s freestanding argument under Article 1, Section

       13 of the Indiana Constitution. According to Blow, that provision of the

       Indiana Constitution affords more robust protections for self-representation

       than does the Sixth Amendment. But the Indiana Supreme Court thinks

       otherwise. The Court has held that Article 1, Section 13 “track[s] federal

       standards” and “gives no broader rights than the Sixth Amendment” with

       respect to claims of self-representation. Edwards v. State, 902 N.E.2d 821, 828-

       29 (Ind. 2009).


[17]   Blow asserts that Edwards is limited to mentally impaired defendants, but we

       agree with the State that Blow’s reading is without merit. Under Blow’s

       reading of Edwards, limiting Article 1, Section 13 to federal standards for the

       mentally impaired but granting broader rights to defendants not so impaired

       “give[s] lesser protection to more vulnerable people than it would for non-

       mentally-impaired defendants . . . .” Appellee’s Br. at 16. We reject Blow’s



       3
        Blow erroneously asserts on appeal that his purported request to proceed pro se was simply to present his
       own closing argument. Appellant’s Br. at 11.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019               Page 12 of 22
       assessment accordingly. There is no separate analysis for this Court to consider

       under the Indiana Constitution. Edwards, 902 N.E.2d at 828-29. We affirm the

       trial court’s denial of Blow’s equivocal and untimely request to proceed pro se.


                             Issue Two: Admission of the Text Messages

[18]   We next consider Blow’s argument that the trial court abused its discretion

       when it admitted into evidence, over Blow’s objection, the text messages

       recovered from Blow’s cell phone. We review the trial court’s evidentiary

       rulings for an abuse of discretion. Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017).

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

       the logic and effect of the facts and circumstances before the court. Id. “In our

       review, we look to the totality of the circumstances and consider conflicting

       evidence in the light most favorable to the trial court’s ruling.” Id.


[19]   Blow objected to the admission of the text messages under Indiana Evidence

       Rule 404(b). That Rule states in relevant part that “[e]vidence of a crime,

       wrong, or other act is not admissible to prove a person’s character in order to

       show that on a particular occasion the person acted in accordance with the

       character.” Ind. Evidence Rule 404(b)(1). However, such evidence “may be

       admissible for another purpose, such as proving motive, opportunity, intent,

       preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

       Evid. R. 404(b)(2) (emphasis added).


[20]   Blow asserts on appeal that the text messages were inadmissible under Rule

       404(b)(2) because some of those messages “did not occur near the same time or

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 13 of 22
       under the same circumstances as [the] charged offense[s] . . . .” Appellant’s Br.

       at 17. Specifically, Blow argues that the State and trial court improperly relied

       on defunct principles from the doctrine of res gestae rather than on legal concepts

       embodied by our modern Evidence Rules. Blow asserts that “the trial court

       relied heavily” on res gestae authority; that the court admitted the evidence

       “based on its intrinsic nature” to the charged offenses; and that the State offered

       the text messages to “complete[] the story,” show “course of conduct,” and

       “give context” to Blow’s arrest. Id. at 18 (quotation marks omitted).


[21]   As our Supreme Court has explained: “Res gestae—the common-law doctrine

       that made evidence admissible as part of a crime’s story—did not survive the

       adoption of Indiana’s Rules of Evidence in 1994.” Snow, 77 N.E.3d at 176.

       Arguments that evidence is admissible because, for example, it is “inextricably

       bound up,” “inextricably intertwined,” within the “circumstances and context,”

       or is “part and parcel” with other evidence “are not proper grounds for

       admissibility.” Id. at 177 (quotation marks omitted). Instead, the admissibility

       of evidence is to be determined under “the legal concepts and vocabulary of the

       Indiana Rules of Evidence.” Id. (quotation marks omitted).


[22]   Blow’s attribution of res gestae principles to the State and trial court misstates the

       record. In the trial court, defense counsel, not the State, repeatedly argued, along

       the lines of res gestae, that the text messages were inadmissible because they did

       not go to “the story” of the charges. Tr. Vol. II at 59. In one hearing before the

       court, defense counsel argued that “case law[] makes it clear

       that . . . the . . . text messages . . . can come in if they are . . . intrinsic to the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 14 of 22
       crime charged.” Id. at 58-59. In support of that statement, defense counsel

       cited Bennett v. State, a pre-Snow, 2014 opinion from our Court. 5 N.E.3d 498

       (Ind. Ct. App. 2014). Defense counsel then attempted to distinguish Bennett

       and asserted that the text messages here were inadmissible because they were

       extrinsic to the charges and did not “complete[] the story” or tell “the rest of the

       story” of the alleged offenses. Tr. Vol. II at 59-60. At a subsequent hearing

       before the court, defense counsel repeated those arguments, stating that, for the

       text messages to be admissible, the State must show that they “complete the

       story.” Id. at 145-47.


[23]   The State responded to Blow’s objection by asserting that the text messages

       were relevant to showing Blow’s “intent to deal” and “intent to deliver” the

       cocaine and heroin. Id. at 56, 147. The trial court agreed, stating that the text

       messages were admissible under “the exception”—Rule 404(b)(2)—because

       they “go[] to show intent.” Id. at 58. And while the State did respond to

       Blow’s specific argument by additionally asserting that the evidence

       “complet[ed] the story,” the context of the proceedings as a whole makes clear

       that the State’s position to the trial court was that the evidence was admissible

       under Rule 404(b)(2) as evidence of Blow’s intent to deal. Id. at 147. Further,

       in overruling Blow’s objection to part of the messages, the court stated, “I read

       the Bennett case. . . . [T]he relevance is . . . he possess[es] . . . the intent.” Id. at

       148.


[24]   Blow’s reading of the record is incorrect, and the record does not support his

       argument on this issue. Accordingly, we are not persuaded by his argument

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 15 of 22
       that the trial court erred when it admitted the text messages by relying on

       principles of res gestae. The State moved to admit the text messages as evidence

       of Blow’s intent, consistent with Indiana Evidence Rule 404(b)(2). And the

       trial court quite specifically agreed. As Blow does not present an argument on

       appeal supported by cogent reasoning that the evidence was not relevant to his

       intent under that Rule, we affirm the trial court’s admission of the text

       messages. See Ind. Appellate Rule 46(A)(8)(a).


                            Issue Three: Detective Vanoeveren’s Testimony

[25]   We next address Blow’s argument that the trial court erred when it permitted

       Detective Vanoeveren to testify to “ultimate conclusions of guilt.” Appellant’s

       Br. at 14. We initially note that Blow objected to only part of Detective

       Vanoeveren’s testimony. 4 In particular, Blow objected to Detective

       Vanoeveren’s testimony regarding the contents of the plastic baggie and the

       cash. Blow did not object to Detective Vanoeveren’s testimony regarding the

       text messages. However, on appeal Blow conflates the different parts of

       Detective Vanoeveren’s testimony under the same standard of review, which is

       incorrect. We will review Blow’s properly preserved objections under our abuse

       of discretion standard, and we will review his unpreserved arguments under our

       fundamental error standard.




       4
         Blow mistakenly asserts on appeal that his two objections were “continuing” objections. Appellant’s Br. at
       5. They were not. Tr. Vol. II at 240, 246.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019              Page 16 of 22
                            Whether the Trial Court Abused Its Discretion


[26]   We first consider whether the trial court abused its discretion in the admission

       of those portions of Detective Vanoeveren’s testimony to which Blow objected.

       Again, the trial court has broad discretion when ruling on the admissibility of

       evidence, and we will reverse the trial court’s judgment only when its decision

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

       court. Snow, 77 N.E.3d at 176.


[27]   Detective Vanoeveren testified as a skilled witness. As the Indiana Supreme

       Court has explained:


               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”), see Warren v. State, 725 N.E.2d 828, 831
               (Ind. 2000), 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.” 13
               Robert Lowell Miller, Jr., Indiana Evidence § 701.105, at 318 (2d
               ed. 1995). 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.” Evid. R. 701.


       Kubsch v. State, 784 N.E.2d 905, 922 (Ind. 2003). “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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 17 of 22
       conclusions.” Evid. R. 704(b). However, “[t]estimony in the form of an

       opinion or inference otherwise admissible is not objectionable just because it

       embraces an ultimate issue.” Evid. R. 704(a).


[28]   In Williams v. State, on which Blow substantially relies, the Indiana Supreme

       Court held a detective’s testimony that “‘there’s zero doubt in my mind that

       that was a transaction for cocaine’ crossed the line into declaring [the

       defendant’s] guilt.” 43 N.E.3d 578, 582 (Ind. 2015). As the Court explained:


               In the context of this drug-dealing offense, [the detective’s]
               testimony . . . does not just describe or imply some elements of
               the offense, but all of them—including mens rea. [The detective]
               could (and indeed did) imply guilt by explaining to the jury the
               process of controlled buys and utilizing confidential informants;
               his experience handling narcotics; and how narcotics are weighed
               and tested. He could also testify to the validity and authenticity
               of the audio and video recordings produced during both
               transactions. And he could testify to all of the particular actions
               of the [d]efendant: that on the first buy, he handed the CI
               money; the CI completed a hand-to-hand exchange with [the
               defendant]; and the CI returned to the vehicle with crack cocaine.
               All of these statements would have been admissible, even though
               they may quite strongly lead to an inference of dealing in
               cocaine. But [the detective] was not permitted to expressly state
               the ultimate legal conclusion that [the defendant] performed a
               “transaction for cocaine.” At that point, his testimony no longer
               merely implied guilt, but declared it just as conclusively as if he
               had stated, “there’s zero doubt in my mind that he is guilty of
               dealing cocaine”—a statement that would clearly violate Rule
               704(b). Since his testimony that a “transaction for cocaine”
               occurred effectively resolved the ultimate issue of guilt as to the
               first buy, the trial court abused its discretion by admitting this
               statement

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 18 of 22
       Id. at 582-83 (cleaned up).


[29]   We agree with the State that Williams does not control here. Detective

       Vanoeveren’s testimony with respect to the contents of the plastic baggie and

       the cash was never that “Blow is a dealer,” that “Blow was dealing,” or a like

       statement. Rather, Detective Vanoeveren’s testimony was that, based on his

       training and experience, the amount of contraband found in the trash bin was

       “consistent with” and “indicative” of a “dealer,” Tr. Vol. II at 243-44; that the

       manner in which the contraband was packaged was “consistent with dealing,”

       id. at 241, 243; and that the amount of money found on Blow, especially the

       number of twenty dollar bills, was “consistent with somebody who’s dealing,”

       id. at 246. Without question, Detective Vanoeveren’s testimony created a

       strong inference of guilt against Blow, but Detective Vanoeveren himself did

       not declare Blow guilty or otherwise cross the line into deciding the ultimate

       issue of Blow’s guilt. He merely testified that the contraband and cash

       discovered at the gas station and on Blow’s person was evidence consistent with

       dealing in narcotics.


[30]   Nonetheless, Blow asserts that our Court has held that testimony that the

       evidence is “indicative of a dealer” impermissibly reaches an ultimate issue.

       Appellant’s Br. at 15 (citing Scisney v. State, 690 N.E.2d 342, 346 (Ind. Ct. App.

       1997), summarily aff’d in relevant part, 701 N.E.2d 847, 849 (Ind. 1998)). Blow

       misreads Scisney. In that case, the State couched the defendant’s facts as a

       hypothetical and then asked the witness whether a “hypothetical” defendant on

       such facts “would be a ‘suspect dealer.’” 690 N.E.2d at 345-46. After the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 19 of 22
       witness agreed, the State then proceeded to “isolate[] each of the relevant facts

       and solicit[] testimony concluding that each fact was indicative of a dealer[,]

       not a user, thus reinforcing the conclusion that [the defendant] was a dealer.”

       Id. at 346.


[31]   We held as follows:


               the expert may not make conclusions as to whether the defendant
               is a dealer or whether the defendant had the intent to deal or
               deliver. Similarly, the expert may not be presented with a
               hypothetical set of facts which reflect the facts of the case and be
               asked to conclude whether a hypothetical individual is more
               likely a dealer or user.


       Id. However, we recognized that such witnesses “may offer testimony as to

       whether particular facts tend to be more or less consistent with dealing in

       drugs.” Id. In other words, we acknowledged, explicitly contrary to Blow’s

       argument, that a witness may testify to whether particular facts are consistent

       with dealing or with being a dealer, and Blow’s assertion that we prohibited

       testimony regarding whether a fact is “indicative of a dealer” misreads Scisney.

       Accordingly, the trial court did not abuse its discretion when it permitted

       Detective Vanoeveren’s testimony with respect to the contents of the plastic

       baggie and the cash, and we affirm the court’s admission of that testimony.


                      Whether the Trial Court Committed Fundamental Error


[32]   Blow also asserts that the trial court erred when it permitted Detective

       Vanoeveren’s testimony regarding the text messages. As Blow did not object to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 20 of 22
       this part of Detective Vanoeveren’s testimony, to demonstrate reversible error

       on this issue Blow must show that fundamental error occurred. C.S. v. State,

       131 N.E.3d 592, 595 (Ind. 2019) (quoting Kelly v. State, 122 N.E.3d 803, 805

       (Ind. 2019)). “An error is fundamental . . . if it made a fair trial impossible or

       constituted a clearly blatant violation of basic and elementary principles of due

       process presenting an undeniable and substantial potential for harm.” Id.

       (quotation marks omitted). “Fundamental error is a daunting standard that

       applies only in egregious circumstances where the trial judge should have

       corrected the situation sua sponte.” Id. at 596 (cleaned up).


[33]   Although Blow does not argue that fundamental error occurred and has

       therefore waived this issue for our review, his waiver notwithstanding,

       Detective Vanoeveren testified that Wiz appeared to be a “supplier,” that the

       text messages “indicate[d]” that the “relationship between Wiz and this target

       phone is a drug dealing relationship,” and that the messages were “consistently

       ordering drugs.” Tr. Vol. III at 3-5. Detective Vanoeveren further testified that

       the reference to scales in those messages was consistent with dealing, though it

       was “certainly possible” for a user to also have scales. Id. at 4. And Detective

       Vanoeveren concluded by agreeing that the text messages

       “overall . . . indicat[ed] drug conversation.” Id. at 7.


[34]   For the same reasons the trial court did not abuse its discretion when it

       permitted Detective Vanoeveren to testify about the plastic baggie and the cash,

       the trial court also did not err, let alone commit fundamental error, when it



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 21 of 22
       permitted Detective Vanoeveren’s testimony about the text messages. We

       affirm the trial court’s nonintervention in that testimony.


                                                 Conclusion
[35]   In sum, we affirm Blow’s convictions.


[36]   Affirmed.


       Vaidik, C.J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019   Page 22 of 22
