Joshua Miller v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 18 2019, 9:53 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffery Haupt Curtis T. Hill, Jr.
Law Office of Jeffery Haupt Attorney General of Indiana
South Bend, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Miller, April 18, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2690
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff Miller, Judge
Trial Court Cause No.
71D01-1802-F6-119
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2690 | April 18, 2019 Page 1 of 5
[1] Joshua Miller appeals his conviction for Level 6 Felony Unlawful Possession of
a Syringe,1 arguing that the trial court erred by admitting certain evidence.
Finding no error, we affirm.
Facts
[2] On January 26, 2018, St. Joseph Police Department Officers Randy Rodriguez
and Brad Bauters were dispatched to Clay Park for a possible overdose. Officer
Bauters had been a police officer for over four years and is trained to identify
the appearance of heroin and the methods of ingestion. During the course of
his career, he has responded to the scene of two to three dozen opioid
overdoses. Signs of an overdose from an opioid such as heroin include
pinpointed pupils, unresponsiveness, and respiratory failure. Narcan can
counteract an opioid overdose but does not affect a person who is not
experiencing one.
[3] Officer Rodriguez found Miller lying face down on the ground. Miller’s pupils
were pinpointed, he was nonresponsive, he was not breathing, and his pulse
was faint. Officer Rodriguez believed that Miller had overdosed on an opioid,
so the officer administered Narcan. Miller began to breathe shallowly. Officer
Bauters administered a second dose of Narcan and Miller’s breathing improved.
1
Ind. Code § 16-42-19-18.
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Officer Bauters looked for identification in Miller’s front right pocket and found
a syringe that appeared to contain heroin.
[4] On February 3, 2018, the State charged Miller with Level 6 felony unlawful
possession of a syringe. At Miller’s August 16, 2018, jury trial, Miller objected
to Officer Bauters’s testimony that the syringe appeared to contain heroin,
arguing that the officer was not an expert. The trial court overruled the
objection. At the conclusion of the trial, the jury found Miller guilty as
charged. The trial court ultimately sentenced Miller to two years, fully
suspended to probation. Miller now appeals.
Discussion and Decision
[5] Miller argues that the trial court erred by allowing Officer Bauters to testify
about his opinion regarding the contents of the syringe. We will reverse a trial
court’s ruling on the admissibility of evidence only if the decision is clearly
against the logic and effect of the facts and circumstances or when the trial
court has misinterpreted the law. J.K. v. State, 8 N.E.3d 222, 228 (Ind. Ct. App.
2014). A person commits Level 6 felony possession of a syringe if he possesses
the syringe with the intent to, among other things, inject a legend drug or
controlled substance. I.C. § 16-42-19-18.
[6] Indiana Evidence Rule 701 provides that a witness who is not testifying as an
expert may offer an opinion “that is . . . rationally based on the witness’s
perception” and “helpful to a clear understanding of the witness’s testimony or
to a determination of a fact in issue.” The rule applies to skilled witnesses, who
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are people who possess “specialized knowledge short of that necessary to be
declared an expert under Indiana Evidence Rule 702 but beyond that possessed
by an ordinary juror.” A.J.R. v. State, 3 N.E.3d 1000, 1003 (Ind. Ct. App.
2014). A skilled witness may testify about his observations and “‘to opinions or
inferences that are based solely on facts within [his] own personal knowledge.’”
Id. (quoting Hawkins v. State, 884 N.E.2d 939, 944 (Ind. Ct. App. 2008)). A
police officer may be qualified to identify drugs. E.g., Jones v. State, 957 N.E.2d
1033, 1041 (Ind. Ct. App. 2011).
[7] Here, Officer Bauters had been a police officer for over four years, had
responded to the scene of two to three dozen opioid overdoses, and had been
specifically trained to identify the appearance of heroin and the methods of
ingestion. This training and specialized knowledge is beyond that possessed by
an ordinary juror and qualified Officer Bauters as a skilled witness regarding
heroin identification. Therefore, the trial court did not err by allowing the
officer to testify that, in his opinion, the substance in the syringe was heroin
based on its color, which was “clearish” or “tan.” Tr. p. 51-52.
[8] We also note that even if the admission of that testimony was erroneous, the
error was harmless given the wealth of other evidence in the record supporting
the conviction. The officers testified regarding the symptoms of an overdose
and explained that Narcan can stop an overdose but has no effect on a person
who has not ingested opioids. They then testified that when they found Miller,
his symptoms were consistent with that of an overdose, and that when they
administered two doses of Narcan, it mitigated his symptoms and restarted his
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breathing. Moreover, Officer Bauters admitted that while he believed the
substance in the syringe was heroin, he was not positive, leaving the ultimate
conclusion on that issue in the jury’s hands. Therefore, any error in the
admission of the evidence was harmless.
[9] The judgment of the trial court is affirmed.
Najam, J., and Robb, J., concur.
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