Kevin M. Clark v. State of Indiana

FOR PUBLICATION
FILED
Oct 31 2012, 9:10 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIELENA DUERRING GREGORY F. ZOELLER
Duerring Law Office Attorney General of Indiana
South Bend, Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN M. CLARK, )
)
Appellant-Defendant, )
)
vs. ) No. 20A05-1202-CR-62
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable George W. Biddlecome, Judge
Cause No. 20D03-1002-FA-7
October 31, 2012
OPINION - FOR PUBLICATION
MAY, Judge
Kevin Clark appeals the admission of evidence found in his bag and in the trunk of his
car. He also appeals the admission of police testimony regarding the conversion of
pseudoephedrine to methamphetamine.1 We affirm.
FACTS AND PROCEDURAL HISTORY
On August 25, 2011, Robert Dunlap, the owner of a self-storage facility, contacted
police because he believed someone was living in a storage unit in violation of the rental
agreement. Sergeant Michael McHenry and Officer Dustin Lundgren arrived at the scene at
approximately midnight and went to the storage unit. Sergeant McHenry observed three
men, including Clark, leaving the storage unit. Clark was carrying a black duffel bag and,
when asked to stop, he sat the bag on the ground. Sergeant McHenry asked the men to sit on
the ground, and they complied. Sergeant McHenry asked Clark if he had anything illegal in
the bag, and Clark admitted there was marijuana in the bag. Sergeant McHenry searched the
bag without a warrant or Clark’s consent. He found marijuana, baggies of
methamphetamine, pseudoephedrine pills, a butane lighter, and clear plastic baggies.
Based on the items found in Clark’s bag, Sergeant McHenry suspected there may be
an active methamphetamine lab on site. Sergeant McHenry took his drug-sniffing dog to
investigate Clark’s car, and the dog indicated two areas where drugs might be found in the
vehicle. Sergeant McHenry found marijuana in the vehicle and, upon opening the trunk,
detected an ammonia-type smell consistent with methamphetamine manufacture. Sergeant
1
Clark listed sufficiency of the evidence as an issue on appeal, but he makes no argument regarding that issue.
Therefore, we decline to address it. See Ind. Appellate Rule 46(A)(8)(a); Matheney v. State, 688 N.E.2d 883,
907 (Ind. 1997) (failure to make a cogent argument on appeal waives the issue for our consideration).
2
McHenry opened a tool box in the trunk, determined the methamphetamine laboratory inside
was not active, and obtained a search warrant for the vehicle. Sergeant McHenry called
Trooper Maggie Shortt to the scene, and she processed the methamphetamine lab.
The State charged Clark with Class A felony attempted dealing in methamphetamine,2
Class D felony possession of chemical reagent or precursors with intent to manufacture
controlled substances,3 and Class A misdemeanor possession of marijuana.4 After a jury trial,
Clark was convicted of Class A felony attempted dealing in methamphetamine and sentenced
to forty-five years incarcerated.
DISCUSSION AND DECISION
Admission of evidence is within the sound discretion of the trial court, and we review
its decision for an abuse of discretion. Cox v. State, 774 N.E.2d 1025, 1026 (Ind. Ct. App.
2002). An abuse of discretion occurs when the decision is clearly against the logic and effect
of the facts and circumstances before the court. Id. We consider only the evidence in favor
of the trial court’s decision. Id. Clark argues the trial court abused its discretion when it
admitted evidence procured from an illegal search and seizure of Clark’s bag.
1. Search and Seizure of Clark’s Bag
The Fourth Amendment to the United States Constitution5 provides:
The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by oath or
2
Ind. Code § 35-41-5-1 (attempt); Ind. Code § 35-48-4-1(b)(1) (dealing in cocaine or narcotic drug).
3
Ind. Code § 35-48-4-14.5(a).
4
Ind. Code § 35-48-4-11.
5
Clark does not challenge the admission of the evidence based on the Indiana Constitution.
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affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
Officer McHenry’s initial search of Clark’s bag and vehicle occurred without a warrant.
When a search is conducted without a warrant, the search must fall within one of the
exceptions to the warrant requirement and be constitutionally reasonable. Berry v. State, 704
N.E.2d 462, 465 (Ind. 1998). Warrantless searches may be constitutional when: (1) incident
to an arrest, which requires probable cause a crime has been committed, or (2) as part of an
investigative stop, which requires reasonable suspicion a crime may be occurring or is about
to occur. Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), reh’g denied.
Clark argues the officers did not have reason to believe criminal activity was afoot.
We disagree. The police were summoned to the storage facility by its owner, who believed
one of the tenants was committing criminal trespass by living in the storage unit in violation
of the storage facility rental agreement. That report gave the officers reasonable suspicion of
criminal activity, which justified stopping the tenant, Clark, and the third man with them.
See State v. Eichholtz, 752 N.E.2d 163, 167 (Ind. Ct. App. 2001) (911 call from identified
source sufficient to establish reasonable suspicion).
Just after the officers stopped the three men, Clark admitted he had marijuana in the
bag he was carrying. That admission gave Officer McHenry probable cause to search the
bag. See State v. Spillers, 847 N.E.2d 949, 955 (Ind. 2006) (an admission of criminal activity
is sufficient to support probable cause).
Because the officers had reasonable suspicion to stop the men and because Clark
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admitted his bag contained marijuana, we cannot say the trial court abused its discretion in
admitting the items found in Clark’s black duffel bag.6
2. Testimony Regarding Conversion of Pseudoephedrine to Methamphetamine
To prove Clark committed Class A felony attempted dealing in methamphetamine, the
State had to prove Clark possessed more than three grams of methamphetamine. See Ind.
Code §35-48-4-1(b)(1). During trial, over Clark’s objection, the Prosecutor elicited the
following testimony from Trooper Shortt:
[State]: Trooper Shortt, you testified that you yourself have
manufactured methamphetamine?
[Shortt]: Correct.
[State]: And you’ve been involved in investigations in over 200
methamphetamine laboratories?
[Shortt]: Correct.
[State]: So you’ve seen how much finished product is typically produced
in methamphetamine one-pot methods; is that fair to say?
[Shortt]: I’ve seen meth at scenes.
[State]: Okay.
[Shortt]: I can’t sit up here and testify that the meth that I see at scenes
came from the cook that was currently going on, because,
generally, the cooks that are currently going on that I process
have not reached the HCl phase.
[State]: Okay. When you did the methamphetamine cooks yourself, did
it go through the HCl phase?
[Shortt]: It did.
[State]: And did it receive an amount at that point in time that you could
see?
[Shortt]: That I could see, yes.
[State]: Typically, how much quantity would you see when it went
through the final stage, and it precipitated out into a solid form?
6
Clark also argues Officer McHenry’s search of Clark’s car was illegal because it was tainted by the illegal
search of his bag. However, as the search of his bag was constitutional, it could not have tainted the search of
his car, and we need not address this argument. See, e.g., Aldrich v. Coda, 732 N.E.2d 243, 245 n.2 (Ind. Ct.
App. 2000) (court declined to address subsequent issue when decision regarding initial issue precluded such
argument).
5
[Shortt]: It looked to be over 50 percent of what we started with.
[State]: Okay. So in your experience it was over a 50 percent from the
amount that you put in of pseudoephedrine to what you actually
saw come out in the end; is that fair to say?
[Shortt]: Yes.
(Tr. at 569-70.) Clark argues the trial court abused its discretion when it allowed Trooper
Shortt to testify regarding the conversion ratio of pseudoephedrine to methamphetamine. We
disagree.
Ind. Evidence Rule 701 provides:
If the witness is not testifying as an expert, the witness’s testimony in the form
of opinions or inferences is limited to those opinions or inferences which are
(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 at issue.
A skilled witness is one who has “a degree of knowledge short of that sufficient to be
declared an expert under Rule 702, but somewhat beyond that possessed by the ordinary
jurors.” Mariscal v. State, 687 N.E.2d 378, 380 (Ind. Ct. App. 1997) (quoting 13B Robert L.
Miller Jr., Courtroom Handbook on Indiana Evidence 196 (1996)), trans. denied. A police
officer’s experience and training may be the foundation for skilled witness testimony.
Stephenson v. State, 742 N.E.2d 463, 480 (Ind. 2001), cert. denied 534 U.S. 1105 (2002).
Trooper Shortt’s testimony was rationally based on her perceptions and was helpful to
the determination of facts at issue in the case. Trooper Shortt testified she had investigated
over 200 methamphetamine labs and had twice cooked methamphetamine herself. She began
investigating methamphetamine laboratories in 2007, completed a forty-hour course on the
manufacture of methamphetamine, and participated in a twenty-four hour job training at the
6
Indiana State Police clandestine laboratory. She is required to take at least eight hours of
refresher training each year. Her testimony could reasonably assist the jury in deciding
whether Clark possessed the components to produce more than three grams of
methamphetamine. For these reasons, we hold the trial court did not abuse its discretion
when it allowed Trooper Shortt to testify over Clark’s objection.
CONCLUSION
The trial court did not abuse its discretion in admitting the evidence gleaned from the
search of Clark’s bag and car because the officers had reasonable suspicion to stop Clark and
search Clark’s bag after he admitted it contained marijuana. Nor did the trial court abuse its
discretion when it allowed Trooper Shortt to testify over Clark’s objection because her
testimony was opinion testimony of a lay witness based on her experience, and not expert
testimony. Accordingly, we affirm.
Affirmed.
NAJAM, J., and KIRSCH, J., concur.
7