Kyle L. Doolin v. State of Indiana

FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

PAULA M. SAUER GREGORY F. ZOELLER

Danville, Indiana Attorney General of Indiana

KARL M. SCHARNBERG

Deputy Attorney General

Indianapolis, Indiana

FILED

Jul 16 2012, 9:17 am

IN THE CLERK

of the supreme court,

court of appeals and

COURT OF APPEALS OF INDIANA tax court

KYLE L. DOOLIN, )

)

Appellant-Defendant, )

)

vs. ) No. 32A01-1111-CR-545

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE HENDRICKS SUPERIOR COURT

The Honorable David H. Coleman, Judge

Cause No. 32D02-1106-CM-747

July 16, 2012

OPINION - FOR PUBLICATION

KIRSCH, Judge

Following a bench trial, Kyle L. Doolin (“Doolin”) was convicted of possession of

marijuana1 as a Class A misdemeanor. He appeals and raises the following restated issue:

whether the trial court abused its discretion when it admitted into evidence the results of an

in-court field test of a substance alleged to be marijuana.

We affirm.

FACTS AND PROCEDURAL HISTORY

On June 16, 2011, Deputy Brian Petree (“Deputy Petree”) of the Hendricks County

Sheriff’s Department was on patrol on Interstate 70 in Hendricks County. He observed a car

fail to properly signal before making a lane change. Deputy Petree initiated a traffic stop of

the vehicle, which was being driven by Brandon Hersey, Doolin’s cousin. Doolin was a

front-seat passenger in the car. After issuing a warning citation for the infraction, Deputy

Petree asked for and received permission to search the vehicle. During the search, Deputy

Petree found inside the locked glove box a digital scale and a velvet drawstring bag that

contained two baggies of green leafy plant material, which Deputy Petree believed in his

experience to be marijuana based on the look and smell of it. Officer Brady McManama

(“Officer McManama”) of the Stilesville Police Department read Miranda rights to both

Hersey and Doolin at the scene and then transported the men to jail, where Doolin

approached Deputy Petree and stated that the marijuana was his and that he wanted to take

responsibility for it. The State charged Doolin with dealing in marijuana, a Class A

misdemeanor. On the day of trial, the State was granted permission to add two counts:

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See Ind. Code § 35-48-4-11(1).

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possession of marijuana and possession of paraphernalia, both Class A misdemeanors.

At the bench trial, after establishing the chain of custody and storage of the alleged

marijuana, the State sought to have Deputy Petree perform a field test in the courtroom on a

sample of the plant substance. Over Doolin’s objections, the trial court permitted Deputy

Petree to conduct two field tests on the material. Deputy Petree testified that the second test

indicated the presence of THC, the active ingredient in marijuana.

Following trial, Doolin was found guilty of possession of marijuana and was acquitted

of the other two counts. The trial court sentenced him to three-hundred-sixty-five days at the

Hendricks County Jail, with credit for time served, and the remainder was suspended to

probation. Doolin filed a motion to correct error, which the trial court denied. Doolin now

appeals.

DISCUSSION AND DECISION

Doolin argues that the trial court abused its discretion by admitting the results from the

in-court field test conducted by Deputy Petree. We review the trial court’s decision to admit

evidence based on a scientific process under an abuse of discretion standard. West v. State,

805 N.E.2d 909, 913 (Ind. Ct. App. 2004), trans. denied. An abuse of discretion occurs

where the decision is clearly against the logic and effect of the circumstances. N.W. v. State,

834 N.E.2d 159, 161 (Ind. Ct. App. 2005), trans. denied. Even if the trial court’s decision

was an abuse of discretion, we will not reverse if the admission constituted harmless error.

Taylor v. State, 904 N.E.2d 259, 261-62 (Ind. Ct. App. 2009), trans. denied.

To convict Doolin of possession of marijuana, the State was required to prove beyond

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a reasonable doubt that he knowingly or intentionally possessed marijuana. Ind. Code § 35-

48-4-11. In this case, the alleged marijuana seized from the vehicle was not tested prior to

trial; rather, the only test conducted on the substance was the in-court field test conducted by

Deputy Petree. Doolin asserts it was error to admit the results of that test because its

reliability was not established.

Pursuant to Indiana Rule of Evidence 702(b) (“Rule 702”), expert scientific testimony

is admissible only if reliability is demonstrated to the trial court. Rule 702 provides:

(a) If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training,

or education, may testify thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied

that the scientific principles upon which the expert testimony rests are

reliable.

The proponent of expert testimony bears the burden of establishing the foundation and

reliability of the scientific principles. McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997).

There is “no specific test” that must be considered in order to satisfy Rule 702(b). West, 805

N.E.2d at 913 (citing McGrew, 682 N.E.2d at 1292). Rather, reliability may be established

by judicial notice or, in its absence, by sufficient foundation to convince the trial court that

the relevant scientific principles are reliable. Id. In determining whether scientific evidence

is reliable, the trial court must determine whether the evidence appears sufficiently valid, or,

in other words, trustworthy, to assist the trier of fact. Id. (citing Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579, 590 n.9 (1993)).

In this appeal, Doolin does not challenge Deputy Petree’s qualifications. Rather, he

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argues that the State failed to present a sufficient foundation for the reliability of the field test

in question. Based on our review of the record before us, we agree that it was error to admit

the results of the in-court field test because its reliability was not established.

At trial, Doolin timely objected to the admission of the field test, asserting that a

proper foundation had not been established. He argued that the courtroom was not a

controlled environment, Deputy Petree was not a chemist, and that “there’s a little higher

burden than having an officer do a field kit test here – here in the courtroom.” Tr. at 44-45.

The trial court overruled the objection and permitted Deputy Petree to conduct the field test.

Prior to starting the test, however, Deputy Petree explained the procedures he would follow:

place a small sample of the plant material in a glass bottle, drop in a capsule, shake the bottle

and break the capsule, and “[i]f it turns blue,” then that indicates the presence of THC, the

active ingredient in marijuana. Id. at 45. Deputy Petree also stated that the procedure was

routinely used by the Hendricks County Sheriff’s Department. Doolin again objected, noting

that there were no seals, was no showing of the accuracy of the tests, and was no showing

that the kit was in proper working order. The trial court overruled the objection and

permitted Deputy Petree to conduct the field test. Before starting, Deputy Petree inquired

whether there were any gloves available to him in the courtroom; there were not. He

proceeded, but during Deputy Petree’s first test, the ampoule did not break and was stuck,

and no results were yielded. Id. at 48. The State then requested permission for Deputy

Petree to conduct a second test, which was granted over Doolin’s objection. Deputy Petree

testified that the results were blue, indicating the presence of THC, the active ingredient in

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marijuana; counsel for Doolin voiced his disagreement that the results were, in fact, blue or

otherwise conclusive.

The State urges that under the precedent of Burkett v. State, 691 N.E.2d 1241 (Ind. Ct.

App. 1998), trans. denied, we should find no error in the admission of Deputy Petree’s field

test. In Burkett, police stopped a speeding car, driven by Burkett. Burkett failed a field

sobriety test and a portable breath test, and before he was transported to jail, the officer

conducted a patdown search of Burkett for officer safety. The officer discovered a green,

leafy substance in Burkett’s pocket. At the jail, the officer conducted a field test on the

substance, and the result was positive for marijuana. Id. at 1243. He was charged and

convicted of possession of marijuana.

On appeal, Burkett claimed that the trial court erred in admitting the results of the

field test because the State failed to provide sufficient foundation for both the testifying

officer’s qualifications and the reliability of the field test. Id. at 1245. A panel of this court

upheld the trial court’s decision that the police officer was a qualified expert because he

testified that: (1) he was trained to administer the test; (2) he followed the proper procedures;

(3) the test consisted of three ampoules of acid that change color to show the presence of

marijuana; and (4) the sheriff’s department routinely used the test. Id. As for Burkett’s

claim that the State failed to present a sufficient foundation for the reliability of the field test,

which is Doolin’s claim in the present case, the Burkett court concluded that the field test

was admissible because “the results of this type of test have been admitted in other cases,”

citing Houston v. State, 553 N.E.2d 117, 119 (Ind. 1990) and Bellamy v. State, 259 Ind. 254,

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286 N.E.2d 401 (1972). Id. at 1246.

As Doolin observes, both Houston and Bellamy, upon which the Burkett court relied,

were decided prior to the adoption of Rule of Evidence 702, with which we are concerned

now. Furthermore, neither Houston nor Bellamy challenged the reliability of the field test.2

While Burkett ultimately determined that the field test on marijuana conducted by the officer

at the jail was admissible, we are not persuaded that it stands for the broad proposition that

any unnamed in-court field test for marijuana is admissible, so long as the testifying officer

states he or she has experience with the test and that the department routinely uses it. To the

extent that Burkett could be interpreted to direct that result, we respectfully decline to follow

it.

Here, although Deputy Petree provided a general overview of the several steps he

intended to follow when conducting the test and stated that his department routinely utilizes

the field test, he did not provide any specific name or otherwise identify the test, indicate its

reliability or rate of accuracy or error, note the scientific principles on which it is based, or

recognize any standards regarding its use and operation. We agree with Doolin that the

deputy’s explanation at trial essentially was nothing more than: “break an ampoule of

something over the challenged plant material and shake it up. If whatever is in the ampoule

causes the material to turn blue, it’s marijuana.” Reply Br. at 1. The State simply presented

2

In Houston, the defendant challenged the qualifications of the officer conducting the marijuana field

test. 553 N.E.2d at 119. In Bellamy, the defendant challenged the chain of custody of an envelope of heroin

that was admitted into evidence; two field tests had been conducted on the substance at the scene and there was

no objection at trial concerning those. 286 N.E.2d at 403.

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no foundational evidence of the test used. Because of this dearth of evidence regarding this

field test, we find the State failed to establish the test’s reliability under Rule 702(b), and the

trial court abused its discretion in admitting the results into evidence. See West, 805 N.E.2d

at 914 (trial court erred by considering results of Draeger field test, conducted at scene to

detect anhydrous ammonia, because of lack of evidence at trial regarding test’s scientific

reliability). We note that our holding today does not represent a conclusion that all field tests

of marijuana conducted in the courtroom are, per se, inadmissible; nor do we find that in-

court field tests on marijuana may never be used as substantive evidence of guilt, as Doolin

asks us to do. Rather, we hold that under the facts and circumstances of this case, the trial

court abused its discretion when it admitted the results of Deputy Petree’s in-court field test

because of the lack of foundation as to its reliability. Having found error, we now determine

whether the error requires reversal.

Improper admission of evidence is harmless error when the conviction is supported by

such substantial independent evidence of guilt as to satisfy the reviewing court that there is

no substantial likelihood that the questioned evidence contributed to the conviction. Spires v.

State, 670 N.E.2d 1313, 1316 (Ind. Ct. App. 1996). An error in the admission of evidence is

not prejudicial if the evidence is merely cumulative of other evidence in the record. VanPelt

v. State, 760 N.E.2d 218, 224 (Ind. Ct. App. 2001), trans. denied (2002).

Here, there was substantial other evidence, besides the result of the in-court field test,

that the plant material in question was marijuana. First and foremost, Deputy Petree testified

without objection that Doolin had admitted to him at the jail that “the marijuana was his” and

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that “he wanted to take responsibility for it.” Tr. at 40. Second, the circumstances

surrounding the location of the substance – in a baggie, inside a velvet bag along with a set of

scales hidden in a music CD case, all inside a locked glove box – suggest that it was not

intended to be discovered. See Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010)

(identity of drug can be proven by circumstantial evidence), trans. denied. Third, Deputy

Petree identified the green leafy substance as marijuana based on its odor and appearance.

Our Supreme Court has held:

Although chemical analysis is one way, and perhaps the best way, to establish

the identity of a compound, persons experienced in the area may be able to

identify cigarette smoke, marijuana, and even toluene. This is true even if

every citizen may not be up to that task.

Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001).

At trial, Deputy Petree testified that he had been a law enforcement officer for six

years, graduating from the Indiana Law Enforcement Academy (“Academy”) and attending

yearly training as part of his job. At the time of Doolin’s arrest, Deputy Petree was part of

what is known as ICE, a team of eight officers chosen to conduct interstate criminal

enforcement, patrolling the interstates and looking for contraband. He testified that he had

received training regarding identifying drugs at the Academy, and he also took several

classes relating to the interdiction of narcotics. Lieutenant Larry Deckard, a crime scene

investigator and property room manager with of the Hendricks County Sheriff’s Department,

testified that Deputy Petree had “a lot” of law enforcement experience with marijuana cases

and that many bags of marijuana were currently being stored in the property room under

Deputy Petree’s name. Tr. at 25.

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We find that Deputy Petree’s experience, training, and personal observations, along

with other circumstantial evidence, sufficiently established the identity of the substance as

marijuana. See Halsema v. State, 823 N.E.2d 668, 673 n.1 (Ind. 2005) (testimony of officer

that he had received special training in production, manufacture and distribution of

methamphetamine was sufficient to establish that substance was methamphetamine, even

though substance was not scientifically determined to be methamphetamine); Boggs, 928

N.E.2d at 865-67 (Ind. Ct. App. 2010) (officer’s testimony that based on his training and

experience he had “no doubt” that green, leafy substance was marijuana was sufficient to

establish identity of drug); McConnell v. State, 540 N.E.2d 100, 103-04 (Ind. Ct. App. 1989)

(testimony of officer who was familiar with marijuana that substance at issue appeared to be

marijuana was sufficient to establish that it was marijuana). Accordingly, we conclude that

while it was error for the trial court to admit the in-court field test, the error was harmless in

light of the other independent evidence of the identity of the substance.

Affirmed.

BAKER, J., and BROWN, J., concur.

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