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

• Court: Indiana Court of Appeals
• Decided: April 18, 2019
• Docket: 18A-CR-2690
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2690 | April 18, 2019 Page 2 of 5 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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2690 | April 18, 2019 Page 3 of 5 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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2690 | April 18, 2019 Page 4 of 5 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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2690 | April 18, 2019 Page 5 of 5