                                                                        FILED
                                                                   Jul 16 2020, 10:02 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Philip R. Skodinski                                         Curtis T. Hill, Jr.
South Bend, Indiana                                         Attorney General of Indiana

                                                            Caroline G. Templeton
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Tyler Wesley Riggle,                                        July 16, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            20A-CR-357
        v.                                                  Appeal from the St. Joseph
                                                            Superior Court
State of Indiana,                                           The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            71D03-1902-F6-113



Friedlander, Senior Judge.




Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020                            Page 1 of 15
[1]   Tyler Riggle appeals his conviction of unlawful possession of a syringe, a Level
                    1
      6 felony. We affirm.


[2]   In July 2018, Riggle was found lying face down near the entrance to the Four

      Winds Casino, which is located in St. Joseph County on tribal land of the

      Pokagon Tribe. Riggle was blue-gray in color, unresponsive with very shallow,

      occasional breathing, and his eyes had rolled back in his head. Police officers

      arrived on the scene and administered a dose of Narcan. Medics arrived,

      administered a second dose of Narcan, and prepared to transport Riggle to the

      hospital. For the medics’ safety, one of the officers performed a pat-down

      search of Riggle prior to him being transported. In Riggle’s front pants pocket,

      the officer found a syringe containing liquid, two empty syringes, a metal

      spoon, a cotton swab, and a cellophane wrapper. Subsequent testing revealed

      that the liquid in the syringe contained heroin.


[3]   Based upon this incident, the State charged Riggle with unlawful possession of

      a syringe, a Level 6 felony. A jury convicted Riggle of this offense, and the

      court sentenced him to 464 days. Riggle now appeals.


[4]   Riggle contends the State’s evidence was not sufficient to support his

      conviction. His argument is two-fold: (1) Riggle asserts the State’s evidence

      was insufficient to establish that his criminal offense was governed by state law;




      1
          Ind. Code § 16-42-19-18 (2015).


      Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020         Page 2 of 15
                                                                                         2
      and (2) he claims that the State did not prove he is non-Indian. We address

      these claims in turn.


[5]   When we review a challenge to the sufficiency of the evidence, we neither

      reweigh the evidence nor judge the credibility of the witnesses. Sandleben v.

      State, 29 N.E.3d 126 (Ind. Ct. App. 2015), trans. denied. Instead, we consider

      only the evidence most favorable to the verdict and any reasonable inferences

      drawn therefrom. Id. If there is substantial evidence of probative value from

      which a reasonable fact-finder could have found the defendant guilty beyond a

      reasonable doubt, the verdict will not be disturbed. Labarr v. State, 36 N.E.3d

      501 (Ind. Ct. App. 2015).


                                          1. Territorial Jurisdiction

[6]   Noting the offense occurred on Pokagon tribal property, Riggle argues the

      State’s evidence was insufficient to establish it had jurisdiction over this offense.

      Particularly, Riggle claims the State’s witness, who testified concerning whether

      state law applied in this case, did not qualify as an expert.


[7]   Territorial jurisdiction is the authority of the State to prosecute a person for an

      act committed within the State’s territorial boundaries. Ortiz v. State, 766

      N.E.2d 370 (Ind. 2002); see Ind. Code § 35-41-1-1(b)(1) (2009) (a person may be




      2
        We use the terms “Indian” and “non-Indian” merely to be consistent with federal statutory terms and
      relevant caselaw.



      Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020                              Page 3 of 15
      convicted of crime under Indiana law if either conduct or result that is element

      of offense, or both, occur in Indiana). Although territorial jurisdiction is not

      necessarily thought of as an element of the offense, the State is required to

      prove it beyond a reasonable doubt. Ortiz, 766 N.E.2d 370.


[8]   Evidence Rule 702 concerns expert witness testimony and provides:


              (a) A witness who is qualified as an expert by knowledge, skill,
              experience, training, or education may testify in the form of an
              opinion or otherwise if the expert’s scientific, technical, or other
              specialized knowledge will help the trier of fact to understand the
              evidence or to determine a fact in issue.


              (b) Expert scientific testimony is admissible only if the court is
              satisfied that the expert testimony rests upon reliable scientific
              principles.


[9]   Evidence Rule 701, on the other hand, provides: “If a witness is not testifying

      as an expert, testimony in the form of an opinion is limited to one that is: (a)

      rationally based on the witness’s perception; and (b) helpful to a clear

      understanding of the witness’s testimony or to a determination of a fact in

      issue.” Rule 701 encompasses persons whom the courts have labeled “skilled

      witnesses.” A.J.R. v. State, 3 N.E.3d 1000, 1003 (Ind. Ct. App. 2014). A skilled

      witness is a person who possesses specialized knowledge short of that necessary

      to be declared an expert under Evidence Rule 702 but beyond that possessed by

      an ordinary juror. Id. Not only can skilled witnesses testify about their

      observations, but also they can testify to opinions or inferences that are based

      solely on facts within their own personal knowledge. Hawkins v. State, 884

      Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020             Page 4 of 15
       N.E.2d 939 (Ind. Ct. App. 2008), trans. denied. It is within the trial court’s

       discretion to determine whether a witness is qualified to give an opinion. Id.


[10]   Here, the State never contended its witness, Sergeant Schaaf, was an expert.

       Therefore, his opinion must be examined under Rule 701. Accordingly, as

       indicated by the rule, the Sergeant’s opinion must be rationally based on his

       perception of the facts—this simply means that the opinion must be one that a

       reasonable person could normally form from the perceived facts, which are facts

       received by the witness directly through any of his own senses. Satterfield v.

       State, 33 N.E.3d 344 (Ind. 2015).


[11]   At trial, once the State rested, defense counsel moved for a judgment on the

       evidence on the basis that the State’s evidence was not “sufficient to establish

       the crime alleged and defined by statute.” Tr. Vol. 2, p. 73. After response by

       the State, the court denied the motion and asked defense counsel if he had

       another basis for the motion. Counsel responded that “the only other basis is

       whether or not the offense occurred in the State of Indiana or whether it

       occurred on an Indian[ ] reservation.” Id. The court then clarified:


               THE COURT: So your argument is that the Pokagon Tribe, the
               Indian tribe, is a separate, distinct nation, and that had this
               offense occurred on tribal land that the proper venue or for[u]m
               would have been the tribal courts; is that your argument in a
               nutshell?


               [DEFENSE COUNSEL]: Yes, basically yes.




       Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020           Page 5 of 15
               THE COURT: And that the State lacks jurisdiction to prosecute
               this case because the crime, Possession of Syringe, was
               committed not in the State of Indiana but in the Pokagon
               Nation?


               [DEFENSE COUNSEL]: Yes.


       Id. at 75.


[12]   Over defense objection, the court allowed the State to reopen its case and recall

       one of its witnesses to address the defense motion. The State recalled Sergeant

       Schaaf, an officer with the Pokagon Band Tribal Police Department. As the

       State began to question Sergeant Schaaf, defense counsel objected to his

       testimony on the basis that there was “no indication that he’s an expert on tribal

       jurisdiction and law.” Id. at 89. The court ruled, “I guess the objection would

       be sustained” and instructed the State to “lay a better foundation.” Id. at 89,

       90. The State then questioned Sergeant Schaaf as follows:


               Q How long have you been a law enforcement officer for
               Pokagon?


               A Over five years.


               Q And have you received any training or experience related to
               the enforcement of laws on Pokagon property?


               A Yes. We have an extensive field training process I was put
               through which lays a basic foundation. In terms of specialized
               training, the U.S. Attorney’s Office up in Grand Rapids puts on a
               class called Criminal Jurisdiction in Indian Country which

       Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020         Page 6 of 15
        provides information as to specific jurisdiction considerations
        when enforcing law on reservation land.


        Q Did you take that class?


        A I did.


        Q And based upon your knowledge from that class, can you
        describe to the jury what that means as far as imposing the law
        on Pokagon land?


        A It’s a complicated situation. There’s a lot of moving parts as
        far as it goes. In any given case we have three courts that may
        have jurisdiction or may not have jurisdiction over a matter.
        There’s the Pokagon Tribal courts. There is[sic] the state courts
        of Michigan or Indiana respectively depending on where we’re
        working. And there’s also the federal courts. We take into
        account whether the suspect is [N]ative or non-[N]ative, the
        victim is Native or non-Native, and the specific offense that’s in
        question to determine which court has exclusive jurisdiction or
        concurrent jurisdiction over that particular case.


        *******


        Q If Mr. Riggle was not a [N]ative to the Pokagon property,
        would there be any ability to prosecute him under the tribal laws
        for a victimless offense?


        A There would not be. The Pokagon Tribal Court and any tribal
        court for that matter has no criminal jurisdiction over a non-
        [N]ative person.


        Q So describe how – we started talking about being sworn in
        multiple jurisdictions. How does that relate to your ability to
Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020             Page 7 of 15
               enforce the laws of the State of Indiana on a non-[N]ative
               person?


               A We are special deputies in the County of St. Joseph, and that’s
               an authority bestowed onto us by the current sheriff. That special
               deputization is the only tool that we have to enforce [the] law on
               a non-[N]ative person outside of our federal jurisdiction.


               *******


               Q So in the case of unlawful possession of a syringe, where
               would the jurisdiction lie for that based upon your training?


               A State court.


       Id. at 90-91, 92.


[13]   Defense counsel lodged no further objection to Sergeant Schaaf’s testimony,

       and cross examined him, in part, as follows:


               Q Are any of these principles laid down in cases or statutes?


               A Yes. Specifically the fact that a tribal court does not have
               criminal jurisdiction over a non-[N]ative, that’s based on case
               law to the best of my understanding.


               *******


               Q Where in the Pokagon law does it say that it doesn’t apply to
               a non[-][N]ative?


               A It would be a case law situation rather than —

       Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020          Page 8 of 15
               Q Case law from where?


               A I would have to look it up. It was part of our training. I don’t
               have all the case law memorized.


               *******


               Q I’m asking you about what you were taught when you were
               taught by the people from the U.S. Attorney’s Office about what
               rights states had in relation to tribal lands?


               A The information I have received is in the case of a non-
               [N]ative state law still fully applies.


       Id. at 92, 94.


[14]   On redirect, the State questioned the Sergeant as follows:


               Q Is one of the purposes of being cross-deputized so that you can
               enforce state laws even though they occur on tribal lands?


               A Correct.


               Q And in that case would that apply to generally non-[N]atives
               on the Pokagon property?


               A That’s correct.


               Q In the situation where there’s an offense such as unlawful
               possession of a syringe with a non-[N]ative, would that be
               something that the Tribal Police could prosecute under Pokagon
               laws?


       Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020          Page 9 of 15
                A They could not.


       Id. at 95.


[15]   Thus, the Sergeant testified that he had been with the Pokagon Band Tribal

       Police Department for over five years and is cross-deputized as a special deputy

       in the St. Joseph County Sheriff Department in order to be able to enforce state

       law on tribal property. He has had extensive field training as well as specialized

       training concerning criminal jurisdiction on tribal property. He testified that his

       opinion was based on his personal training and experience; accordingly, his

       testimony was rationally based on his perception.


[16]   Further, Sergeant Schaaf’s testimony was helpful in determining a fact at

       issue—namely, whether Riggle could be charged and tried under state law.

       Specifically, the Sergeant testified that during his criminal jurisdiction training

       they were instructed that tribal courts do not have criminal jurisdiction over
                                                         3
       non-Indians for a victimless offense. Rather, caselaw dictates that state law

       applies to a criminal offense that is committed by a non-Indian on tribal land
                                                                                                      4
       and either is committed against a non-Indian victim or is victimless. Without




       3
        While we are hesitant to describe any drug offense as a “victimless” crime, we use the term to be consistent
       with the caselaw on this subject.
       4
         Indeed, the United States Supreme Court has long recognized, which numerous state and lower federal
       court opinions have acknowledged, that state courts have jurisdiction over a crime in which a non-Indian
       defendant commits a victimless offense or an offense against another non-Indian on Indian lands. See Solem
       v. Bartlett, 465 U.S. 463, 465 n.2, 104 S. Ct. 1161, 1163, 79 L. Ed. 2d 443 (1984) (noting that within Indian
       country, state jurisdiction is limited to crimes by non-Indians against non-Indians and victimless crimes by
       non-Indians); U.S. v. Wheeler, 435 U.S. 313, 324 n.21, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978) (crimes
       committed by non-Indians against non-Indians are subject to state jurisdiction), superseded by statute on other

       Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020                                   Page 10 of 15
       this testimony, the jury would not have been able to determine within which

       jurisdiction Riggle’s criminal action rested.


[17]   Defense counsel raised no further objection and had ample opportunity to, and

       did, cross examine the Sergeant on his opinion and the source of his

       knowledge. Skilled witness testimony generally need only meet a relatively low

       bar in order to be admissible, Hawkins, 884 N.E.2d 939, and Sergeant Schaaf’s

       testimony reaches that standard. His opinion testimony was both rationally

       based on his perceptions and assisted the jury in determining a fact at issue as is

       required by Evidence Rule 701. Therefore, the trial court did not abuse its

       discretion when it determined Sergeant Schaaf was qualified to give an opinion,

       and his testimony was sufficient to establish the authority of the state to charge

       Riggle in this case.




       grounds in 25 U.S.C. §1301 (2) (stating that Indian tribe has inherent power to exercise criminal jurisdiction
       over all Indians); New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S. Ct. 307, 90 L. Ed. 261 (1946) (recognizing
       that states have jurisdiction over crimes by non-Indians against non-Indians and which do not affect Indians);
       U.S. v. McBratney, 104 U.S. 621, 26 L. Ed. 869 (1881) (stating that states have jurisdiction over crimes
       committed within Indian tribal land by non-Indians against non-Indians); see also U.S. v. Langford, 641 F.3d
       1195, 1199 n.3 (10th Cir. 2011) (stating that states possess exclusive criminal jurisdiction over crimes
       occurring in Indian country if there is neither an Indian victim, nor an Indian perpetrator; noting that
       government should have been aware of its own internal guidelines and citing U.S. Dep’t of Justice, United
       States Attorneys’ Manual, tit. 9–20.100, Criminal Resource Manual § 683 (1997), which notes that as a
       general rule states, not federal government, have jurisdiction over victimless crimes committed by non-
       Indians in Indian country); Ross v. Neff, 905 F.2d 1349, 1353 (10th Cir. 1990) (quoting Solem, 465 U.S. at 465
       n.2 and stating, “The Supreme Court has expressly stated that state criminal jurisdiction in Indian country is
       limited to crimes committed ‘by non-Indians against non-Indians ... and victimless crimes by non-Indians.’”);
       and People v. Collins, 826 N.W.2d 175 (Mich. Ct. App. 2012) (holding that Michigan state courts have
       jurisdiction over non-Indian defendants where offense is committed on Indian lands or in Indian country and
       offense is either victimless or victim is not Indian).

       Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020                                   Page 11 of 15
                                        2. Subject Matter Jurisdiction

[18]   Riggle next asserts the State failed to prove he is a non-Indian, and he argues

       that the burden of proof is on the State to establish his status.


[19]   Riggle’s claim is a challenge to the trial court’s subject matter jurisdiction,

       which refers to the court’s power to hear and decide a class of cases. Alvarado v.

       Nagy, 819 N.E.2d 520 (Ind. Ct. App. 2004). The question of subject matter

       jurisdiction may be raised at any time. Id.


[20]   Courts of this state obtain subject matter jurisdiction through the Indiana

       Constitution or a statute. Brown v. State, 64 N.E.3d 1219 (Ind. Ct. App. 2016),

       trans. denied (2017). Superior courts in Indiana exercise “original and

       concurrent jurisdiction in all civil cases and in all criminal cases.” Ind. Code §

       33-29-1-1.5 (2011). An exception to this statute and to Indiana Code section

       35-41-1-1(b)(1), the territorial jurisdiction statute discussed previously, is the

       Indian Country Crimes Act. This Act preempts state court jurisdiction over

       most criminal proceedings concerning offenses committed by an Indian against

       another Indian on Indian land. See 18 U.S.C. §§1152 (1948), 1153 (2013). The

       federal statutes, however, are silent on the issue of who bears the burden of

       proof to establish the jurisdictional fact of Indian status so as to remove the

       proceeding from state court jurisdiction.


[21]   Although Indiana courts have not addressed this issue, we have generally held

       that the party challenging subject matter jurisdiction carries the burden of

       establishing that jurisdiction does not exist. L.M.A. v. M.L.A., 755 N.E.2d 1172

       Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020           Page 12 of 15
       (Ind. Ct. App. 2001). Further, where the facts with regard to an issue lie

       peculiarly in the knowledge of one party, that party is best situated to bear the

       burden of proof. Smith v. U.S., 568 U.S. 106, 133 S. Ct. 714, 184 L. Ed. 2d 570

       (2013). In addition, generally, the defendant has the burden of proof as to a fact

       relied on as justification or excuse where the subject matter thereof relates to

       him personally and/or lies peculiarly within his knowledge, and proof of its

       nonexistence by the prosecution would be relatively difficult or inconvenient.

       23 C.J.S. Criminal Procedure and Rights of Accused § 968 (2020).


[22]   To place the burden of proof on the State in this case would put it in the

       difficult position of having to affirmatively prove a negative of a fact (i.e., that

       Riggle is not an Indian) that is peculiarly within his knowledge and that of the

       particular tribe and its members and which is more readily ascertainable by him

       than by the State. Unlike territorial jurisdiction which is a requisite element,

       non-Indian status is not a requisite element of establishing a criminal offense in

       this state, including the offense of unlawful possession of a syringe. See Ind.

       Code § 16-42-19-18. Yet, if we were to place the burden of proof in this

       instance on the State, the practical effect would be to compel the State to allege

       in every information negations of every conceivable exception to state court

       jurisdiction. For example, in addition to non-Indian status in certain cases, the

       State would have to allege in other instances that the offense did not occur on

       property owned by the federal government, that property taken was not federal

       property, or that an assault was not committed upon a federal officer.




       Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020            Page 13 of 15
[23]   Several courts that have addressed this issue have held that a defendant bears

       the burden to show facts that would establish an exception to the state court’s

       jurisdiction under the Indian Country Crimes Act. See Young v. State, 2015 WL

       567012 (Iowa Ct. App. Feb. 11, 2015) (stating it was defendant’s burden to

       show he was enrolled member of tribe and offense occurred on Indian

       reservation in order to establish exception to state court’s jurisdiction); State v.

       Verdugo, 901 P.2d 1165 (Ariz. Ct. App. 1995) (holding that defendant bears

       burden of showing Indian status and that crime occurred in Indian country to

       establish trial court’s lack of jurisdiction); State v. St. Francis, 563 A.2d 249 (Vt.

       1989) (holding that defendant has burden of proving Indian heritage and that

       offense occurred within Indian country outside state’s jurisdiction); Pendleton v.

       State, 734 P.2d 693 (Nev. 1987) (holding that defendant has burden of showing

       applicability of negative exceptions in jurisdictional statutes); State v. Cutnose,

       532 P.2d 896 (N.M. Ct. App. 1974) (holding that defendants bear burden of

       proving lack of state court jurisdiction), cert. denied.


[24]   Based on the considerations we have discussed, we agree with these courts and

       thus hold that the burden to show facts that would divest the trial court of

       jurisdiction under the Indian Country Crimes Act is on the defendant, not the

       State.


[25]   Here at trial, Sergeant Schaaf testified that Riggle was “in all likelihood” not an

       Indian because generally Indians carry with them a tribe identification card,

       and no such card was found on Riggle. Tr. Vol. 2, p. 96. Riggle neither

       objected to this evidence, nor affirmatively asserted or offered any evidence that

       Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020             Page 14 of 15
       he is a member of the Pokagon Tribe. Riggle’s “jurisdictional defense is not

       roped securely to facts proven of record but hangs by the thread of possibility”

       and is therefore unavailing. Verdugo, 901 P.2d at 1169. Consequently, Riggle

       did not meet his burden of alleging his membership or affiliation with the

       Pokagon Tribe, or any tribe, in order to establish the trial court’s lack of

       jurisdiction.


[26]   Accordingly, we conclude the State’s evidence was sufficient to sustain Riggle’s

       conviction.


[27]   Judgment affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-357 | July 16, 2020          Page 15 of 15
