The opinion
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CARA SCHAEFER WIENEKE GREGORY F. ZOELLER
Special Asst. to State Public Defender Attorney General of Indiana
Wieneke Law Office
Plainfield, Indiana ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
FILED
Mar 16 2012, 9:14 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
PAUL J. KINNAMAN, )
)
Appellant-Defendant, )
)
vs. ) No. 24A01-1105-CR-229
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE FRANKLIN CIRCUIT COURT
The Honorable J. Steven Cox, Judge
Cause No. 24C01-1010-FA-57
March 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Paul Kinnaman appeals his convictions of Class A felony dealing in
methamphetamine1 and Class A misdemeanor possession of paraphernalia.2 He alleges the
admission of testimony from various witnesses -- without objection from his trial counsel –
was fundamental error. We affirm.
FACTS AND PROCEDURAL HISTORY
Police stopped a car in which Kinnaman was a passenger and found
methamphetamine, a pipe, and scales. At Kinnaman’s trial, the State called the driver of the
car, Jessica Mantooth, who testified she and Kinnaman were going to see Kinnaman’s parole
officer when their car was stopped. She also testified about whether she had told police that
she thought Kinnaman had marijuana with him that day.
The State then presented testimony from the police officers who stopped the car.
They testified about why they believed Kinnaman intended to deliver the methamphetamine
and what evidence supported that belief. Kinnaman’s counsel did not object to the testimony,
ask that the jury be admonished, or move for a mistrial. The jury found Kinnaman guilty of
both crimes.
DISCUSSION AND DECISION
The admission of evidence is within the sound discretion of the trial court. Davis v.
State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003), reh’g denied, trans. denied. A decision to
1
Ind. Code § 35-48-4-1.1.
2
Ind. Code 35-48-4-8.3.
2
admit evidence will not be reversed absent a showing of manifest abuse of the trial court’s
discretion resulting in the denial of a fair trial. Id. In determining the admissibility of
evidence, we consider only the evidence in favor of the trial court’s ruling and unrefuted
evidence in the defendant’s favor. Id.
Kinnaman’s trial counsel did not object to the testimony Kinnaman now argues was
erroneously admitted. Appellate courts may, on rare occasions, resort to the fundamental
error exception to address on direct appeal an otherwise procedurally defaulted claim. Jewell
v. State, 887 N.E.2d 939, 942 (Ind. 2008). But fundamental error is extremely narrow and
available only when the record reveals a clearly blatant violation of basic and elementary
principles, where the harm or potential for harm cannot be denied, and when the violation is
so prejudicial to the rights of the defendant as to make a fair trial impossible. Id.
1. Testimony Kinnaman was on Parole and Possessed Marijuana
On direct examination, Mantooth recounted a conversation with a police officer after
her car was stopped. She testified she told the officer she and Kinnaman were on their way
to pay his child support and see his parole officer. The State elicited no further discussion of
Kinnaman’s parole status.
Generally, the admission of evidence of prior criminal history is error, Jackson v.
State, 518 N.E.2d 787, 789 (Ind. 1988), and the reference to parole indicated to the jury that
Kinnaman had a criminal history. In Jackson, the prosecutor asked the victim if she had
received any of her property back. In response, the victim said, “His parole, can I . . . .” Id.
3
at 788. Defense counsel immediately moved for a mistrial. Our Indiana Supreme Court
characterized the reference as “fragmentary and inadvertent. There was no attempt by the
prosecutor to elicit the information. Such damage as occurred to the defense did not warrant
a mistrial.” Id. at 789. Given the strength of the evidence against Jackson, the probable
persuasive effect on the jury of the reference to parole was “minimal. The evidence was not
so close that the jury could have been influenced by the error.” Id.
Mantooth’s testimony had minimal persuasive effect for the same reasons. Her
mention of parole was brief and inadvertent, and there was no attempt by the prosecutor to
elicit the information. As in Jackson, the evidence against Kinnaman was strong. About five
grams of methamphetamine was in the center console of the car in which Kinnaman was the
passenger. Mantooth told police Kinnaman shoved the drugs into the console before the car
was stopped. He had a digital scale, a smoking pipe, plastic baggies, and over $500 in cash.
Kinnaman has not shown admission of the reference to his parole was fundamental error.
Nor has he demonstrated fundamental error from Mantooth’s testimony about whether
Kinnaman had marijuana that day. A similar fundamental error standard applies to the
admission of evidence of other crimes, wrongs, or acts under Indiana Evid. R. 404(b).
Oldham v. State, 779 N.E.2d 1162, 1173-74 (Ind. Ct. App. 2002), trans. denied. “[T]he
erroneous admission of character and uncharged bad act evidence to prove guilt does not
always require reversal. Such errors are harmless and not fundamental when . . . there is
overwhelming evidence of the defendant’s guilt.” Id. at 1173.
4
At trial, Officer Franklin testified Mantooth first said Kinnaman placed
methamphetamine into the center console of the car, but then she changed her statement to
indicate it was marijuana that Kinnaman put into the console. Mantooth testified at trial she
did not make either statement. As explained above, the evidence of Kinnaman’s guilt was
sufficiently strong to negate any probable persuasive effect on the jury of the State’s repeated
reference to Mantooth’s alleged earlier statements to police. Thus, the officer’s testimony
did not make a fair trial impossible.
2. Testimony Kinnaman was a Dealer
Ind. Evid. R. 704(b) provides “Witnesses may not testify to opinions concerning
intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a
witness has testified truthfully; or legal conclusions.” The trial court permitted two State’s
witnesses to testify, without objection,3 as to Kinnaman’s intent.
Officer Bischoff testified Kinnaman had $507.00 when he was stopped, and was then
asked “What evidence do you have that there was any intention to deal”? (Tr. at 36.) The
officer testified, apparently as a “skilled witness,”4 (id.), that “the normal user,” (id. at 37),
3
Kinnaman’s counsel did object to one officer’s testimony as “speculative,” (Tr. at 37), but that objection is
not the basis of Kinnaman’s allegations of error on appeal. We accordingly review for fundamental error.
4
It is not clear from the record that the State properly qualified Officer Bischoff as a skilled witness. After the
officer testified about why certain evidence indicated Kinnaman was a dealer, Kinnaman’s counsel said “Judge
that’s speculation.” (Tr. at 37.) The State responded “I think he is a skilled witness who may testify as to what
a typical user might have in that case,” (id.), and the judge said “He can testify.” (Id.) On appeal, Kinnaman
correctly notes neither officer was qualified as an expert, but he does not argue Officer Bischoff was not a
“skilled witness.”
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does not carry that much cash or methamphetamine. Kinnaman had several empty baggies,
and the officer testified dealers “put the product into the little baggies and that’s what they
sell.” (Id.) He testified users, by contrast, “don’t accumulate a bunch of bags.” (Id.)5
A “skilled” witness is one “with a degree of knowledge short of that sufficient to be
declared an expert under Indiana Rule of Evidence 702, but somewhat beyond that possessed
by the ordinary jurors.” O’Neal v. State, 716 N.E.2d 82, 88 - 89 (Ind. Ct. App. 1999), reh’g
denied, trans. denied. Under Evid. R. 701, a skilled witness may testify to an opinion or
inference that is rationally based on the witness’s perception, and helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue. Davis, 791
N.E.2d at 268. The requirement that the opinion be “rationally based” on perception means
the opinion must be one that a reasonable person could normally form from the perceived
facts. Id. The requirement that the opinion be “helpful” means, in part, that the testimony
gives substance to facts, which are difficult to articulate. Id. at 269.
5
Officer Franklin offered similar testimony, but was not qualified as a skilled or expert witness. The State
notes he had qualified in that court as an expert in other trials and asserts he “could and would have qualified
as a skilled witness,” and “likely could have qualified as an expert” had the issue been raised. (Br. of Appellee
at 10.) The State offers no authority to support its apparent premise that otherwise impermissible opinion
testimony may be given by a witness who “could and would” qualify as skilled or expert, but who was not in
fact so qualified by a trial court. We decline the State’s invitation to usurp the trial court’s authority to
determine whether a witness is qualified as “skilled” or “expert.”
Officer Franklin was asked “so based on your opinion with that evidence whoever possessed that uh,
possessed it with intent to deal?” (Tr. at 91.) The State concedes Officer Franklin’s response, “Whoever
possessed these items were [sic] planning on dealing it [sic],” (id.), was inadmissible. But as explained below,
the error in admitting Officer Franklin’s testimony was harmless.
6
In Davis, Davis was charged with possession of cocaine with intent to deliver. Davis
had discarded two plastic baggies of cocaine, each containing an “eight ball” or
approximately forty-five rocks of cocaine that were individually wrapped or “bindled.” Id.
The officer testified the cocaine was packaged for dealing because it was uncommon for a
drug user to carry the amount of cocaine Davis had. No paraphernalia used to smoke cocaine
was found on Davis or near the scene. The officer testified drug users generally do not have
large amounts of drugs on them. He stated drug users typically buy $10 to $20 rocks of
cocaine that weigh approximately .10 grams and immediately smoke it. The officer testified
that drug dealers, by contrast, generally carry larger amounts of cocaine.
We determined that testimony “gave substance to facts that were otherwise difficult to
articulate. In particular, [the officer’s] testimony was helpful to determine the intent element
of the charge for possession of cocaine with intent to deliver.” Id. The trial court did not
abuse its discretion in admitting the skilled witness testimony. Id.
Similarly, in the case before us, Officer Bischoff’s testimony was helpful to determine
the intent element of the charge against Kinnaman. He did not testify directly that he
believed Kinnaman was a dealer, but rather testified about what, in his experience,
differentiated a “normal user” and a “normal dealer.” (Tr. at 37.) Thus, we cannot say
admission of Officer Bischoff’s testimony was fundamental error.
By contrast, Officer Franklin’s testimony that “whoever possessed these items were
[sic] planning on dealing it [sic]” was undoubtedly a direct reference to Kinnaman’s guilt in
7
violation of Evid. R. 704, and the State concedes it should not have been admitted. However,
as explained above, not every trial error compels reversal. The improper admission of
evidence is harmless error when the conviction is supported by 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. Cook v. State, 734 N.E.2d 563, 569
(Ind. 2000), reh’g denied.
The State presented substantial evidence of Kinnaman’s guilt independent of Officer
Franklin’s testimony Kinnaman planned on dealing the drugs he possessed, and we are
convinced there is no substantial likelihood that the erroneously admitted evidence
contributed to the jury’s verdict. Allowing the questioned testimony into evidence was error
but was harmless.
Accordingly, we affirm Kinnaman’s convictions.
Affirmed.
CRONE, J., and BROWN, J., concur.
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