MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 18 2019, 7:47 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Darion Lamar Bailey, April 18, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1072 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Robert J. Pigman, Appellee-Plaintiff Judge Trial Court Cause No. 82D03-1703-F2-1687
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 1 of 16 [1] Darion Bailey appeals his conviction for Level 2 Felony Possession of
Methamphetamine with the Intent to Deliver,1 arguing that the trial court
erroneously admitted certain testimony. Bailey also appeals the trial court’s
finding that he is an habitual offender, arguing that the trial court erroneously
admitted evidence because it was inadmissible hearsay and that the evidence
was insufficient to support the finding. Finding no error and that the evidence
was sufficient, we affirm.
Facts [2] On March 21, 2017, Evansville Police Department Detective Crystal Thomas
was patrolling the Arbors Apartment Complex as a part of the Operation Safe
Streets drug enforcement program. At roughly 3:53 p.m., Detective Thomas
saw Bailey “duck down” and put something in his bag. Tr. Vol. II p. 48.
Detective Thomas noticed that Bailey was closely watching a nearby officer,
Detective Quentin Wilkerson, while he was doing this. Detective Thomas
alerted Detective Wilkerson to Bailey’s presence. Bailey then put on his
backpack and started walking away. Detective Thomas radioed Sergeant David
Eads and Officer Doug Bueltel to tell them about a suspicious person moving
towards them.
1 Ind. Code § 35-48-4-1.1(a)(2).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 2 of 16 [3] Sergeant Eads and Officer Bueltel spotted Bailey, approached him, and
attempted to question him, but Bailey tried to flee. Sergeant Eads grabbed
Bailey, but Bailey slipped away, abandoning his backpack. While Officer
Bueltel chased Bailey on foot, Sergeant Eads stayed behind because he detected
the smell of marijuana coming from Bailey’s backpack. Inside the backpack,
Sergeant Eads found a loaded handgun, a cigarette cellophane containing
prescription medication, a prescription bottle with marijuana buds inside, a
container of marijuana weighing 26.63 grams, multiple digital scales, individual
baggies filled with a substance later determined to be methamphetamine, a jar
containing methamphetamine weighing 5.51 grams, and $481 in cash.
[4] Nearby Officer John Montgomery assisted Officer Bueltel by pursuing Bailey in
his vehicle. When Officer Montgomery exited his vehicle, Bailey threw a semi-
automatic weapon to the ground and surrendered. Another officer, Detective
Justin Jackson, arrested Bailey.
[5] On March 23, 2017, the State charged Bailey with one count of Level 2 felony
possession of methamphetamine with the intent to deliver (Count I); one count
of Level 4 felony possession of methamphetamine (Count II); two counts of
Level 5 felony carrying a handgun without a license (Counts III and IV); one
count of Level 6 felony possession of a controlled substance (Count V); one
count of Level 6 felony possession of marijuana (Count VI); and one count of
Class A misdemeanor resisting law enforcement (Count VII). On February 12,
2018, the State added two counts of Level 6 felony theft of a firearm (Counts
VIII and IX). The State also alleged that Bailey was an habitual offender with
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 3 of 16 respect to Counts I, II, III, V, VIII, and IX. Bailey’s jury trial took place on
February 26-27, 2018.
[6] At Bailey’s jury trial, Sergeant Eads testified that he had been a narcotics
investigator assigned to the Evansville-Vanderburgh County Drug Task Force
for tweleve years; that he had training from the Drug Enforcement Agency
(DEA); that he had attended several undercover and surveillance schools on
drug assignments; that he had worked on “several hundred” narcotics dealing
cases; and that he had had training in narcotics recognition and drug
interdiction. Tr. Vol. II p. 65. Sergeant Eads also testified that small digital
scales, plastic sandwich baggies, “other types of packaging materials[,]” ledgers,
currency, and firearms are items often associated with someone dealing in
narcotics. Id. at 68.
[7] The State then asked Sergeant Eads the following questions:2
Q: Generally speaking with, for instance like powdered meth or methamphetamine, what would be a typical, in your experience, a typical user amount?
A: User amounts, like I said, are a lot smaller generally than what we find in a dealing situation. The user amount I would say is typically a gram or less and an example I have given in the past of a gram is like a Sweet and Low packet that you put in your drink or whatever, that’s about a gram of stuff in there so talking about a pretty small amount and a lot of that is due to the price, you know, the lifestyle. They just don’t have enough money to afford to have it. It’s not like you go to Sam’s and stock up because it’s cheap.
2 In this excerpted testimony, “Q” is the State and “A” is Sergeant Eads.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 4 of 16 The price is and you can only get what you can afford and the amounts are smaller.
Q: Okay. If somebody hypothetically were found with 5.51 grams of methamphetamine in your experience would that be considered, would you consider that more of a dealer weight or user weight?
Id. at 69-70. Bailey objected to this question because he contended that the State
was asking Sergeant Eads to conclude that Bailey was a drug dealer. The trial
court overruled Bailey’s objection. The testimony continued as follows:
Q: In your experience that amount of methamphetamine, 5.51 grams, is that consistent with, in your experience, with the use of narcotics or dealing narcotics?
A: It would be more of a dealing amount so that would be more than a personal use amount in my opinion.
Id. at 70-71.
[8] Later in the trial, Bailey objected to the following testimony from Sergeant Eads
on the same grounds:
Q: Now one quick question. In your training and experience, Detective Eads, is there a particular way that you would describe the items that were found in the backpack as you observed them based on your training and experience?
A: Yes. As I may have mentioned earlier, I’ve done training, presented training, presented classroom presentations to schools and in public groups alike and part of those presentations often involves taking actual items that we recovered in previous arrests that have been disposed of and showing people what things look like that are used in this kind of stuff. Meth lab presentations, used to do a lot of those. If I was going somewhere to do a presentation
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 5 of 16 on, on what a drug dealer might have I could have just taken this backpack. It had, you know, everything you needed; product, bags, scales, money, protection.
Id. at 93. Once again, the trial court overruled Bailey’s objection.
[9] On the second day of the jury trial, the trial court held a separate proceeding
regarding the State’s claims that Bailey was an habitual offender. To support
these claims, the State presented charging informations filed in causes 82D02-
0911-FD-1097, 82D02-1108-FD-861, and 82C01-1506-F6-3369, in which a man
named Darion Bailey was charged with felony intimidation, felony failure to
return to lawful detention, and felony resisting law enforcement, respectively.
The State also presented the certified chronological case summaries and
abstracts of judgment to supplement this charging information. The Darion
Bailey listed on the charging information and the Darion Bailey on trial shared
the same name, birthdate, social security number, Indiana driver’s license
number, height, and body weight within a ten-pound range. Bailey objected to
the introduction of these documents, arguing that the biographical information
constituted inadmissible hearsay. The trial court overruled Bailey’s objection
and admitted the evidence.
[10] At the conclusion of trial, the jury found Bailey guilty on all counts except for
Counts VIII and IX. The jury also found that Bailey was an habitual offender.
At the April 4, 2018, sentencing hearing, the trial court sentenced Bailey to
concurrent terms of twenty-five years for Count I; three years for Count III;
four years for Count IV; five years for Count V; 180 days for Count VI; and one
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 6 of 16 year for Count VII. The trial court vacated the conviction for Count II on
double jeopardy grounds. The trial court also enhanced the Count I sentence by
twenty years due to the habitual offender adjudication, for an aggregate
sentence of forty-five years. Bailey now appeals.
Discussion and Decision
I. Admission of Evidence [11] First, Bailey argues that the trial court erroneously admitted Sergeant Eads’s
testimony because it reached a legal conclusion, thereby warranting a reversal
of his conviction for Level 2 felony possession of methamphetamine with the
intent to deliver.
[12] Reversal of a trial court’s admissibility determinations is appropriate only where
the decision is clearly against the logic and effect of the facts and circumstances.
Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997). “Moreover, we will sustain the
trial court[’s] [decision on the admission of certain evidence] if it can be done
on any legal ground apparent in the record.” Jester v. State, 724 N.E.2d 235, 240
(Ind. 2000).
[13] Specifically, Bailey argues that Sergeant Eads’s testimony about the amount of
methamphetamine users typically keep versus the amount dealers typically keep
inappropriately concluded that Bailey was a dealer, which is a conclusion that
only the jury was permitted to reach. Additionally, Bailey contends that
Sergeant Eads’s testimony about a standard “hypothetical” drug dealer’s Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 7 of 16 backpack inappropriately reached the same conclusion about Bailey because
Sergeant Eads referred pointedly to Bailey’s backpack.
[14] Indiana Evidence Rule 704(a) states that “[t]estimony in the form of an opinion
or inference otherwise admissible is not objectionable just because it embraces
an ultimate issue.” Therefore, as long as the evidence proffered only
“embraces” an issue in the form of an opinion or inference, there is no
violation. However, Indiana Evidence Rule 704(b) explicitly states that
“[w]itnesses may not testify to opinions concerning intent, guilt, . . . or legal
conclusions.” Only a jury may reach such conclusions because the jury is the
ultimate trier of fact.
[15] Our Supreme Court has defined the contours of Rule 704 with the following
analysis:
Taken together, those principles [found in Rules 704(a) and 704(b)] establish that even in criminal cases, opinion testimony may include “evidence that leads to an [incriminating] inference, even if no witness could state [an] opinion with respect to that inference.” Steinberg v. State, 941 N.E.2d 515, 526 (Ind. Ct. App. 2011) (second alteration in original) (emphasis added) (quoting 13 Robert L. Miller, Jr., Indiana Practice Series § 704.201 at 589 (3d ed. 2007)). But an opinion must stop short of the question of guilt— because under Rule 704(b) and our constitution, that is the one “ultimate issue” that the jury alone must resolve.
Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). In other words, a witness can
give opinions that might lead to an incriminating inference, but the witness
cannot then reach conclusions about someone’s guilt, innocence, or intent
based off those opinions.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 8 of 16 [16] We cannot say that Sergeant Eads’s testimony about the amount of
methamphetamine a dealer typically keeps on his person is a legal conclusion.
The State properly asked Sergeant Eads about his credentials— namely, his
education in the field of narcotics and drug dealing, and his extensive
experience working in this area as part of the Evansville Police Department.
Then, with this information presented to the jury, the State asked Sergeant Eads
a series of questions, based on his experience and training, about the amount of
methamphetamine a recreational drug user would keep on his person versus the
amount a drug dealer would keep on his person. Sergeant Eads responded with
the following:
A: User amounts, like I said, are a lot smaller generally than what we find in a dealing situation. The user amount I would say is typically a gram or less and an example I have given in the past of a gram is like a Sweet and Low packet that you put in your drink or whatever, that’s about a gram of stuff in there so talking about a pretty small amount and a lot of that is due to the price, you know, the lifestyle. They just don’t have enough money to afford to have it. It’s not like you go to Sam’s and stock up because it’s cheap. The price is and you can only get what you can afford and the amounts are smaller.
Tr. Vol. II p. 69-70. Additionally, Sergeant Eads testified that 5.51 grams of
methamphetamine was “more of a dealing amount so that would be more than
a personal use amount in my opinion.” Id. at 71.
[17] At no point in this testimony did Sergeant Eads state that Bailey was a dealer or
that he had the requisite intent to deliver or sell methamphetamine. Rather, this
testimony represented Sergeant Eads’s opinions on narcotics operations and the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 9 of 16 characteristics of how drug dealers operate based on his particular expertise. At
most, Sergeant Eads’s statements represented evidence leading to incriminating
inferences, but such statements are permissible under Rules 704(a) and 704(b).
Furthermore, if it has been shown that a police officer has enough experience in
the area, he may give an opinion on whether or not drugs are held for sale or
for personal use without violating any evidentiary stricture. See Powers v. State,
440 N.E.2d 1096, 1106 (Ind. 1982).
[18] We also cannot say that Sergeant Eads’s testimony about a typical drug dealer’s
backpack in relation to what he found in Bailey’s backpack amounted to a legal
conclusion. The same analysis applies to the following testimony:
A: Yes. As I may have mentioned earlier, I’ve done training, presented training, presented classroom presentations to schools and in public groups alike and part of those presentations often involves taking actual items that we recovered in previous arrests that have been disposed of and showing people what things look like that are used in this kind of stuff. Meth lab presentations, used to do a lot of those. If I was going somewhere to do a presentation on, on what a drug dealer might have I could have just taken this backpack. It had, you know, everything you needed; product, bags, scales, money, protection.
[19] Tr. Vol. II p. 93. Once again, Sergeant Eads was testifying, based on his
education and experience, that this backpack was typical of a drug dealer.
Unlike the expert witness who plainly affirmed that the defendant had
committed four rapes in Ross v. State, 516 N.E.2d 61, 63 (Ind. 1987), Sergeant
Eads was merely highlighting the actions, paraphernalia, and criminal conduct
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 10 of 16 he has witnessed and studied over the course of his law enforcement career.
Therefore, the trial court did not err in admitting this testimony.
[20] Moreover, even if there was error, it was, at most, harmless error. The improper
admission of evidence is harmless error if the conviction is supported by
substantial, independent evidence of guilt satisfying us that there is no
substantial likelihood the challenged evidence contributed to the conviction.
Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011).
[21] Here, there was substantial, independent evidence supporting Bailey’s felony
possession of methamphetamine with the intent to deliver conviction. Not only
did he keep large amounts of methamphetamine on his person, but his
backpack contained a loaded handgun, a cigarette cellophane containing
prescription medication, a prescription bottle with marijuana buds inside, a
container of marijuana weighing 26.63 grams, multiple digital scales, individual
baggies filled with methamphetamine, a jar containing methamphetamine
weighing 5.51 grams, and $481 in cash. The jury could have used this evidence
to convict Bailey of felony possession of methamphetamine with the intent to
deliver. McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct. App. 1993) (holding that
“[c]ircumstantial evidence of intent to deliver, such as possession of a large
quantity of drugs, large amounts of currency, scales, plastic bags, and other
paraphernalia . . . can support a conviction[]”). Additionally, Sergeant Eads
testified for a long time, and the jury trial took place over the course of two days
with multiple other witnesses and exhibits. So, there was not a substantial
likelihood that this isolated evidence contributed to Bailey’s conviction.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 11 of 16 II. Habitual Offender Adjudication
A. Admission of Evidence [22] Bailey next argues that the trial court erred when it admitted charging
informations during the habitual offender proceeding because it was
inadmissible hearsay.
[23] We will overrule a trial court’s ruling on the admission of evidence only when
the ruling is clearly against the logic and effect of the facts and circumstances
before it. Halliburton v. State, 1 N.E.3d 670, 675 (Ind. 2013).
[24] Specifically, Bailey contends that the State introduced the current charging
information to show that Bailey’s social security number and birthdate matched
the name, birthdate, and social security number found on the charging
informations and chronological case summaries for the predicate felonies. And,
because this charging information contained out-of-court statements—
biographical information—it was proffered to prove the truth of the matter
asserted, thereby amounting to inadmissible hearsay.
[25] Pursuant to Indiana Evidence Rules 801(b) and 801(c), hearsay statements—
those made by someone other than the declarant to prove the truth of the matter
asserted—are generally inadmissible. However, hearsay statements are
admissible if they fall under one of any number of exceptions. One such
exception is the public records exception, and public records are defined as:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 12 of 16 (A) A record or statement of a public office if:
(i) it sets out:
(a) the office’s regularly conducted and regularly recorded activities;
(b) a matter observed while under a legal duty to [observe and] report; or
(c) factual findings from a legally authorized investigation; and
(ii) neither the source of information nor other circumstances indicate a lack of trustworthiness.
Ind. Evidence Rule 803(8)(A).
[26] Bailey contends that the charging informations for these current and predicate
offenses are not public records and are not excepted because they are police
investigative reports and represent factual findings offered by the government.
Pursuant to Indiana Evidence Rule 803(8)(B), such documents/findings are not
public records and are not excepted from the rule against hearsay. We find
Bailey’s argument unavailing.
[27] In Fowler v. State, our Court held that police records created in connection with
routine booking procedures fall under the public records exception because they
are unambiguous, ministerial, and objective matters made in non-adversarial
settings. 929 N.E.2d 875, 879 (Ind. Ct. App. 2010). The same analysis applies
to the charging informations in this case. The State proffered certified records of
charging information for the current offenses in addition to charging
informations and chronological case summaries for the predicate offenses. Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 13 of 16 These documents do not contain factual findings and are not investigative
reports. Rather, they were offered for their identification materials—namely,
birthdates, social security numbers, height, and weight. These facts are not
factual findings accumulated by the government in a criminal case, but rather,
information that properly identifies a criminal suspect and registers him with
the criminal justice system. Furthermore, even if the charging information is
more subjective and investigative in nature, the biographical information was
obtained and recorded in the course of a ministerial, nonevaluative charging
process. Id. As such, the trial court did not err in admitting this charging
information.
B. Sufficiency of Evidence [28] Finally, Bailey argues that the evidence was insufficient to support the finding
that he is an habitual offender.
[29] If the evidence yields logical and reasonable inferences from which the finder of
a fact may determine beyond a reasonable doubt that it was that defendant that
was convicted of the prior felony, then a sufficient connection has been shown.
Tyson v. State, 766 N.E.2d 715, 718 (Ind. 2002). It is not our job to reweigh the
evidence or to judge the credibility of the witnesses, and we consider any
conflicting evidence most favorably to the trial court’s ruling. Wright v. State,
828 N.E.2d 904, 906 (Ind. 2005).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 14 of 16 [30] We have already determined that the trial court’s admission of the charging
informations for both this offense and the predicate felonies was not in error.
And, our Court has already concluded that a charging information, standing
alone, with key biographical information that corresponds with previously
certified records, constitutes sufficient evidence to support a finding that the
defendant is an habitual offender. See, e.g., Gentry v. State, 835 N.E.2d 569, 574
(Ind. Ct. App. 2005) (holding that a “reasonable jury could certainly find that
the matching names, dates of birth, and social security numbers were sufficient
to prove that the individual discussed in the documents was the present
appellant[]”); Tate v. State, 835 N.E.2d 499, 510 (Ind. Ct. App. 2005) (holding
that use of certified copies of judgments or commitments containing a
defendant’s name or a similar name may be introduced to prove commission of
prior felonies); Lewis v. State, 769 N.E.2d 243, 246-47 (Ind. Ct. App. 2002)
(holding that charging information from predicate convictions that contains the
same social security number and general identifying information as current
documents is enough to determine that an individual is an habitual offender).
[31] Accordingly, our inquiry ends here. Even though the State presented no
witnesses, the charging informations and chronological cases summaries
containing key biographical information were enough. The name, birthdate,
social security number, Indiana driver’s license number, and height were the
same on both sets of documents. A reasonable trier of fact could conclude that
Bailey is an habitual offender.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 15 of 16 [32] The judgment of the trial court is affirmed.
May, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1072 | April 18, 2019 Page 16 of 16