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:
DANIEL J. MOORE GREGORY F. ZOELLER
Laszynski & Moore Attorney General of Indiana
Lafayette, Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
FILED
Jan 31 2012, 9:30 am
IN THE CLERK
of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and
tax court
BRIEN CLAYTON, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1102-CR-138
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Thomas H. Busch, Judge
Cause No. 79D02-1002-FA-5
January 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Brien Clayton appeals his conviction for class A felony dealing in cocaine. He asserts
that the trial court abused its discretion in admitting expert opinion testimony regarding his
intent to deliver the cocaine. He further asserts that the State presented insufficient evidence
to support his conviction. Finding any error in the admission of the opinion testimony
harmless and also finding sufficient evidence to support the conviction, we affirm.
Facts and Procedural History
On February 4, 2010, Detective Bradley Curwick of the Lafayette Police Department
was working undercover and posing as an individual named “Travis.” He telephoned
Clayton, also known as “Smoke,” and asked if he could purchase crack cocaine. Clayton
stated that he was out of town. Thereafter, on February 9, 2010, Detective Curwick, still
posing as “Travis,” arranged to go with a woman named Vivian Hurst and purchase $180
worth of crack cocaine from Clayton. Hurst had purchased cocaine from Clayton
approximately five times in early February. Before Detective Curwick met with Hurst, police
officers photocopied bills totaling $200 that Curwick could give to Hurst in order to purchase
the crack cocaine. Detective Curwick was wired with a transmitter so that other officers
could hear what was transpiring and so that the transaction could be recorded.
Later that day, Detective Curwick picked up Hurst and the two traveled to Clayton‟s
residence in Lafayette. Detective Curwick parked in the alley behind the residence and gave
the buy money to Hurst. Hurst entered the residence and returned approximately two minutes
later. Upon her return, Hurst spit three rocks of crack cocaine out of her mouth and handed
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them to Detective Curwick. Each rock of crack cocaine was individually packaged in a
“corner bag” that had been knotted and tied. State‟s Ex. 15. The total weight of the three
rocks was 2.11 grams.
After Detective Curwick and Hurst drove away, surveillance officers stopped the
vehicle and arrested Hurst. As officers were obtaining a search warrant for the residence,
surveillance officers who had remained at the residence observed Clayton and another
individual exit the residence and drive to a nearby supermarket. Officers arrested Clayton. A
search incident to arrest revealed two prepaid cell phones, a Western Union receipt, and $393
in cash. Ninety dollars of the cash matched serial numbers from the money that had been
supplied to Hurst to buy the crack cocaine. During the subsequent search of the residence,
officers discovered a Styrofoam cup with a plastic baggie containing a white rock-like
substance inside. The substance was later determined to be crack cocaine with a total weight
of 21.95 grams. Tr. at 251.
On February 11, 2010, the State charged Clayton with class B felony conspiracy to
commit dealing in cocaine, class B felony dealing in cocaine, class A felony dealing in
cocaine, class D felony possession of cocaine, and class D felony maintaining a common
nuisance. The State also subsequently charged Clayton with being a habitual substance
offender and a habitual offender. Following a jury trial on December 14 and 15, 2010, the
jury found Clayton guilty as charged. A bench trial was held for the habitual offender phase
and Clayton was also found guilty of being a habitual offender. During sentencing, the trial
court merged four of Clayton‟s convictions into the class A felony dealing count and declined
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to enter judgment of conviction on the habitual substance offender count. The court
sentenced Clayton to thirty years for class A felony dealing in cocaine, enhanced by an
additional thirty years for being a habitual offender. The court ordered fifty years executed
time with the remaining ten years served on probation. This appeal ensued.
Discussion and Decision
Clayton first contends that the trial court abused its discretion in admitting the opinion
testimony of West Lafayette Police Detective Jonathon Eager regarding the intended use of
the cocaine found in Clayton‟s residence. Based upon Detective Eager‟s training and
experience, the State offered Detective Eager‟s opinion testimony “as an expert in the field of
narcotics investigation, trafficking, and drug culture.” Tr. at 275. Detective Eager testified
that dealers generally have larger amounts of cocaine than users, and that 21.95 grams of
cocaine would not be an amount possessed by a mere user. Id. at 284. Then, in addition to
asking Detective Eager to testify generally regarding the amount of drugs typically possessed
by dealers as opposed to users, the State asked Detective Eager to render his opinion
specifically regarding State‟s Exhibit Number 9, which consisted of the precise 21.95 grams
of crack cocaine seized from Clayton‟s residence. Defense counsel objected to Detective
Eager rendering an opinion regarding Clayton‟s intent regarding the specific drugs seized.
The trial court overruled the objection and permitted Detective Eager to testify “there‟s no
doubt that this was intended to be dealt and that it was not possessed by a user. Absolutely
not.” Tr. at 287. Detective Eager went on to opine that the specific packaging of the drugs in
Exhibit Number 9 indicated an intent to deal or deliver. Id. at 288-89.
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On appeal, Clayton argues that Detective Eager was not a qualified expert witness
under Indiana Evidence Rule 702 and also, that his testimony went beyond what is
permissible opinion testimony. The trial court has broad discretion in ruling on the
admissibility of evidence, and we will reverse such a ruling only for an abuse of that
discretion. Edwards v. State, 930 N.E.2d 48, 49-50 (Ind. Ct. App. 2010), trans. denied. An
abuse of discretion occurs if the decision is clearly against the logic and effect of the facts
and circumstances before the trial court. McClendon v. State, 910 N.E.2d 826, 832 (Ind. Ct.
App. 2009), trans. denied.
Regarding Detective Eager‟s qualifications as an expert witness, Clayton asserts that
the trial court should have treated Detective Eager as a “skilled” witness rather than an
“expert” witness.1 By treating Detective Eager as an expert witness, Clayton asserts that the
trial court added weight to Detective Eager‟s opinion testimony. But, Clayton did not object
to Detective Eager‟s qualifications as an expert witness. Consequently, Clayton has waived
these arguments on appeal. A party cannot assert on appeal an objection not raised at trial.
Craig v. State, 883 N.E.2d 218, 220 (Ind. Ct. App. 2008). Arguments raised for the first time
on appeal are waived and will not be considered. Whitfield v. State, 699 N.E.2d 666, 669
(Ind. Ct. App. 1998), trans. denied.
Clayton maintains that Detective Eager‟s opinion testimony regarding the intended use
of the 21.95 grams of cocaine found in his residence went beyond what is permissible
1
“A „skilled‟ witness is defined as „a person with a degree of knowledge short of that sufficient to be
declared an expert under Indiana Rule 702, but somewhat beyond that possessed by ordinary jurors.‟” Davis v.
State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003) (quoting O’Neal v. State, 716 N.E.2d 82, 88-89 (Ind. Ct. App.
1999)), trans. denied.
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opinion testimony. Clayton concedes that Detective Eager was properly permitted to testify
generally as to what amounts of drugs are typically possessed by drug dealers as opposed to
drug users. As acknowledged by Clayton, this Court has reasoned that such testimony may
be helpful in determining the issue of intent to deliver because the testimony can establish
“the distinct characteristics that differentiate between a drug user and a drug dealer.” Davis,
791 N.E.2d at 269. However, Indiana Evidence Rule 704(b) provides that “[w]itnesses 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.”
Indeed, we have stated,
a police officer or law enforcement official who is offered and qualified as an
expert in the area of drugs, drug trade, drug trafficking, etc., may offer
testimony as to whether particular facts tend to be more or less consistent with
dealing in drugs. However, the expert may not make conclusion as to whether
the defendant is a dealer or whether the defendant had the intent to deal or
deliver …. In essence, the expert may comment on the facts of the case, but
must refrain from making any conclusions as to the defendant‟s intent, guilt, or
innocence.
Scisney v. State, 690 N.E.2d 342, 346 (Ind. Ct. App. 1997), aff’d in relevant part, 701 N.E.2d
847 (Ind. 1998). We agree with Clayton that Detective Eager‟s opinion testimony here,
which specifically addressed State‟s Exhibit 9, went too far regarding Clayton‟s intent to
deliver.
Nevertheless, any error in the admission of Detective Eager‟s testimony was harmless.
“Error is harmless if „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.‟” Tolliver v. State, 922 N.E.2d 1272,
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1278 (Ind. Ct. App. 2010) (quoting Cook v. State, 734 N.E.2d 563, 569 (Ind. 2000)), trans.
denied. As we will next address in the context of the sufficiency of the evidence, we are
confident that the State presented substantial independent evidence of Clayton‟s guilt such
that there is no substantial likelihood that the questioned opinion testimony contributed to his
conviction for dealing in cocaine.
Clayton challenges the sufficiency of the evidence to support his conviction. When
reviewing a claim of insufficient evidence, we consider only the probative evidence and
reasonable inferences that support the verdict. Gray v. State, 957 N.E.2d 171, 174 (Ind.
2011). We likewise consider conflicting evidence in the light most favorable to the verdict.
Id. We will affirm the conviction unless no reasonable trier of fact could have found the
elements of the crime beyond a reasonable doubt. Id.
To convict Clayton of dealing in cocaine as a class A felony, the State was required to
prove that he knowingly or intentionally possessed, with the intent to deliver, pure or
adulterated cocaine in an amount weighing three grams or more. Ind. Code § 35-48-4-1.
Detective Curwick traveled to a residence with Hurst in order to purchase cocaine from
Clayton. The State presented evidence that Clayton rented that residence. Hurst entered the
residence under surveillance and purchased three rocks of cocaine. Hurst identified Clayton
as the individual who sold her cocaine on that date as well as at least five times earlier in the
month of February. When Clayton was later arrested, he possessed some of the marked
purchase money from Hurst, two prepaid cell phones, and a wire transfer receipt. During a
subsequent search of the residence where the buy occurred, 21.95 grams of cocaine, divided
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into individual rocks, was found. Possessing a large amount of a narcotic substance is
circumstantial evidence of intent to deliver. Davis, 791 N.E.2d at 270. The State presented
sufficient evidence to prove that Clayton knowingly possessed with intent to deliver cocaine
in an amount weighing three grams or more.
Clayton contends that Hurst was the only witness to any drug transactions involving
Clayton and that Hurst lacks credibility. Clayton further asserts that although he was indeed
the tenant who rented the residence in which the cocaine was found, another individual also
lived at the residence and the cocaine could have belonged to him. Clayton‟s arguments are
merely an invitation for us to reweigh the evidence and reassess witness credibility, tasks not
within our prerogative on appeal. The State presented sufficient evidence to sustain
Clayton‟s conviction for class A felony dealing in cocaine, and any error in the admission of
Detective Eager‟s opinion testimony was harmless in light of the substantial evidence of
guilt. Therefore, we affirm Clayton‟s conviction.2
Affirmed.
MAY, J., and BROWN, J., concur.
2
Clayton does not challenge the sufficiency of the evidence to sustain the habitual offender finding.
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