The opinion
Apr 07 2015, 9:57 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Leeman Gregory F. Zoeller
Logansport, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Glenn Sciaraffa, April 7, 2015
Appellant-Defendant, Court of Appeals Cause No.
09A04-1410-CR-470
v. Appeal from the Cass Superior Court.
The Honorable Richard A.
State of Indiana, Maughmer, Judge.
Cause No. 09D02-1405-FB-24
Appellee-Plaintiff.
Riley, Judge.
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 1 of 16
STATEMENT OF THE CASE
[1] Appellant-Defendant, Glenn Sciaraffa (Sciaraffa), appeals his conviction for
dealing in methamphetamine, a Class B felony, Ind. Code § 35-48-4-1.1(a)(1)
(2013); maintaining a common nuisance, a Class D felony, I.C. § 35-48-4-
13(b)(1) (2013); possession of paraphernalia, a Class A misdemeanor, I.C. § 35-
48-4-8.3 (2013); and his adjudication as an habitual substance offender, I.C. §
35-50-2-10.1
[2] We affirm.
ISSUES
[3] Sciaraffa raises three issues on appeal, which we restate as follows:
(1) Whether the trial court committed a fundamental error by admitting
the presumptive positive test for methamphetamine;
(2) Whether fundamental error occurred during the State’s closing
argument; and
(3) Whether the State presented sufficient evidence beyond a reasonable
doubt to sustain Sciaraffa’s conviction.
FACTS AND PROCEDURAL HISTORY
1
This statute was repealed by P.L.158-2013, § 664, eff. July 1, 2014.
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 2 of 16
[4] During the evening of May 1, 2014, and into the early morning hours of May 2,
2014, Sciaraffa manufactured methamphetamine in his residence near
Galveston in Cass County, Indiana. He resided in the residence with his
girlfriend Brandi Bragg (Bragg) and Bragg’s fifteen-year-old son. Sciaraffa
manufactured the methamphetamine using the one-pot or “shake and bake”
method in a closet in his house, which he had outfitted with a trap door and a
fan to release the chemical fumes as he “burped” the gas from the mixture.
(Transcript pp. 131, 126). At one point during the evening, Sciaraffa and Bragg
tested the methamphetamine by smoking a small portion Sciaraffa had
extracted from the chemical solution. Bragg went to bed around 1 a.m. on the
morning of May 2, 2014, while Sciaraffa continued the manufacturing process.
[5] Bragg awoke around 11 a.m. that same morning and followed Sciaraffa out to
the garage. She “wanted to catch a buzz” and smoke some of the
methamphetamine Sciaraffa had manufactured during the night. (Tr. p. 118).
They both smoked the methamphetamine from a pipe in the garage and
Sciaraffa handed Bragg a small amount in a bag to consume later. Sciaraffa
then instructed Bragg “to clean house because he felt [] probation was going to
be there today.” (Tr. p. 118).
[6] Around 4:30 p.m. that afternoon, as Bragg was knocking on the garage door,
several law enforcement officers arrived at the residence. Bragg informed the
officers that Sciaraffa was in the garage and would not come out. When
Howard County Probation Officer Dustin DeLong (Officer DeLong)
approached the garage, Sciaraffa opened the door. Officer DeLong
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 3 of 16
immediately “noticed a very strong odor emitting from the garage,” which took
his breath away. (Tr. p. 25). Asked what he was doing, Sciaraffa “held up a
paint can,” “pointed to a guitar,” and informed the officer that he had been
painting the instrument. (Tr. p. 25). Because the odor was not a paint smell but
rather a “chemical type smell” that the officer could not really describe, Officer
DeLong did not believe Sciaraffa’s explanation. (Tr. p. 26).
[7] Officer DeLong informed Sciaraffa of the home visit; Sciaraffa agreed to a drug
screen, and consented to a search of the residence. When giving his urine
sample, Sciaraffa admitted that he had used methamphetamine within “the last
three days.” (Tr. p. 28). He did not appear to be under the influence at that
time and was “very cooperative.” (Tr. p. 36). During the search of the
cluttered residence, the officers located a pipe in the master bedroom; a pen
tube with a burned end and white residue on the kitchen counter; a blue
surgical glove containing lithium battery casings on a kitchen ceiling beam; a
bottle of acetone in the freezer; a glass pipe on a table on the back porch; a glass
bottle with a milky, oily substance in the middle room off the back porch; a red
Igloo container with liquid; an empty Coleman fuel can and a white container
annotated with “Fridge and Air Coil Cleaner” hidden behind a table in the back
closet; and a Gatorade bottle with liquid on top of a cabinet. (State’s Exh. 16).
In the garage, the officers located clear air hose tubing used in the gassing
process and digital scales. All of these items are associated with the
manufacture of methamphetamine.
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 4 of 16
[8] Samples were taken from the liquid inside the Gatorade bottle and from the
oily, milky residue in the glass bottle and analyzed by Indiana State Police
forensic scientist Kim Burrow (Scientist Burrow). During her analysis, Scientist
Burrow did not find any presence of a controlled substance in the Gatorade
bottle, but concluded that the glass bottle presumptively “indicated the presence
of [m]ethamphetamine.” (State’s Exh. 28). She had an insufficient sample
detail to run a confirmatory test, and noted on her certificate of analysis that
“the concentration was insufficient for complete identification.” (State’s Exh.
28).
[9] On May 7, 2014, the State filed an Information, charging Sciaraffa with Count
I, dealing in methamphetamine, a Class B felony; Count II, possession of
methamphetamine, a Class D felony; Count III, possession of chemical agents
or precursors with the intent to manufacture a controlled substance, a Class D
felony; Count IV, maintaining a common nuisance, a Class D felony; and
Count V, possession of paraphernalia, a Class A misdemeanor. In addition, the
State filed an Information alleging Sciaraffa to be an habitual substance
offender. On May 12, 2014, the State dismissed Count IV and Sciaraffa
proceeded to trial on the remaining charges.
[10] On August 13 through August 14, 2014, the trial court conducted a bifurcated
jury trial. At the close of the evidence, the jury returned a guilty verdict on all
four Counts. Thereafter, the jury also determined that Sciaraffa was an habitual
substance offender. On September 8, 2014, the trial court sentenced Sciaraffa to
twenty years for Class B felony dealing in methamphetamine, a concurrent
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 5 of 16
three years for Class D felony possession of methamphetamine, a concurrent
three years for Class D felony maintaining a common nuisance, and a
consecutive one year for Class A misdemeanor possession of paraphernalia.
The trial court enhanced the sentence for Sciaraffa’s Class B felony with eight
years for the habitual substance offender adjudication. In sum, Sciaraffa
received an aggregate twenty-nine-year sentence.
[11] Sciaraffa now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Admission of Evidence
[12] First, Sciaraffa contends that the trial court abused its discretion when it
admitted into evidence the presumptively positive test results for
methamphetamine found in the glass bottle. Our standard of review for rulings
on the admissibility of evidence is well-settled. Admission or exclusion of
evidence rests within the trial court’s sound discretion and its decision is
reviewed for an abuse of that discretion. Southward v. State, 957 N.E.2d 975,
977 (Ind. Ct. App. 2011). The trial court’s decision must be clearly erroneous
and against the logic and effect of the facts and circumstances before it
constitutes an abuse of discretion. Id.
[13] Sciaraffa admits that he failed to object to the admission of the evidence at
issue, thereby failing to preserve his claim for appellate review. See id. To
avoid the review of his argument being waived, he invokes the fundamental
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 6 of 16
error doctrine which permits appellate review of otherwise procedurally
defaulted claims. Id. As our supreme court has noted, this narrow doctrine
may lead to reversal where there has been a “blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error
denies the defendant fundamental due process.” Matthews v. State, 849 N.E.2d
578, 587 (Ind. 2006).
[14] Focusing on the foundational requirements for the admission of evidence,
Sciaraffa contends that Scientist Burrow’s failure to explain the scientific
principles and standards of a presumptively positive test should have excluded
its presentation from the jury. Because of the State’s “heavy” reliance on the
erroneously admitted test in its prosecution of Sciaraffa, the jury was “highly
likely” influenced to return a guilty verdict. (Appellant’s Br. p. 14).
[15] Pursuant to Indiana Rule of Evidence 702, expert scientific testimony is
admissible only if reliability is demonstrated to the trial court. The Rule
provides
(a) A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is satisfied
that the expert testimony rests upon reliable scientific principles.
The proponent of expert testimony bears the burden of establishing the
foundation and reliability of the scientific principles. Doolin v. State, 970 N.E.2d
785, 787 (Ind. Ct. App. 2012). There is no specific test that must be considered
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 7 of 16
in order to satisfy Rule 702(b). Id. 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 concluding that
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.
[16] In support of his argument, Sciaraffa references Doolin and Burkett v. State, 691
N.E.2d 1241 (Ind. Ct. App. 1998), trans. denied, for the proposition that the
testimony must include an explanation of the nature of the presumptive test and
its reliability. In Burkett, police stopped a speeding car, driven by Burkett.
Burkett failed the field sobriety test and a portable breath test. Burkett, 691,
N.E.2d at 1243. Before he was transported to jail, the officer conducted a
patdown search for his safety. Id. During this search, the officer discovered a
green, leafy substance in Burkett’s pocket, which, after conducting a field test,
yielded a positive result for marijuana. Id. On appeal, we upheld the trial
court’s decision that the 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. at 1245.
[17] Although Doolin presented similar circumstances as Burkett, we reached the
opposite result. While the officer in Doolin provided a general overview of the
steps he intended to follow when conducting the field test, he did not testify as
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 8 of 16
to any specific name or otherwise identify the test, indicate its reliability, the
scientific principles on which it was based, or recognize any standards regarding
its use and operation. Doolin, 970 N.E.2d at 789. In fact, we noted that the
officer’s explanation at trial was nothing more than to “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.” Id. Due to the
lack of any foundational evidence, the Doolin court concluded that the State
failed to establish the test’s reliability under Evid. R. 702(b). Id.
[18] We find Sciaraffa’s equation of Scientist Burrow’s chemical tests with the quick,
on-the-scene field tests performed by an officer unpersuasive. Scientist Burrow
is a professional forensic scientist with the Indiana State Police Laboratory and
has an extensive education and experience in drug analysis. She testified to the
specific test performed on the glass bottle, which presumptively “indicated the
presence of [m]ethamphetamine.” (State’s Exh. 28). She elaborated that she
performed a “Thimlar chromatography test and a gas chromatography/mass
spectrometry test” on the specimen. (Tr. p. 202). These are the “specialized
tests” that are part of the normal testing procedure and which require “expert
training to administer.” (Tr. p. 203). Both of these tests are “generally accepted
in the relevant scientific community.” Markley v. State, 603 N.E.2d 891, 893 n.5
(Ind. Ct. App. 1992), trans. denied.
[19] In order to identify a controlled substance in a specimen, Scientist Burrow is
required to perform at least two tests: “one being a presumptive test and one
being a confirmatory test.” (Tr. p. 206). The presumptive test on the glass
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 9 of 16
bottle indicated the presence of methamphetamine; however, “there wasn’t
enough sample” to confirm the presumptive testing’s result. (Tr. p. 206). As
such, Scientist Burrow was not “scientifically certain that it was
methamphetamine.” (Tr. p. 206). The mere fact that she could not perform a
confirmatory test does not invalidate the test or inhibit its admissibility but
rather reflects on the weight of her testimony. See McKnight v. State, 1 N.E.3d
193, 203-04 (Ind. Ct. App. 2013) (finding that any inaccuracy in the scales used
to weigh the cocaine went to the weight of the evidence and not its
admissibility).
[20] Based on Scientist Burrow’s testimony, we conclude that the State properly
established the foundation and reliability underlying the scientific principles of
the test performed on the glass bottle in accordance with Evid. R. 702(b).
Therefore, there was no error, let alone a fundamental error, in the trial court’s
admission of the evidence.
II. State’s Closing Argument
[21] Next, Sciaraffa contends that the State committed prosecutorial misconduct
when it indicated during closing argument that the State had located actual
methamphetamine during the search of the residence.
[22] In reviewing a claim of prosecutorial misconduct properly raised in court, we
determine whether (1) misconduct occurred, and if so, (2) whether the
misconduct, under all the circumstances, placed the defendant in a position of
grave peril to which he or she would not have been subjected to otherwise.
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 10 of 16
Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied. A prosecutor has the
duty to present a persuasive final argument and thus placing a defendant in
grave peril, by itself, is not misconduct. Id. “Whether a prosecutor’s argument
constitutes misconduct is measured by reference to case law and the Rules of
Professional Conduct. The gravity of peril is measured by the probable
persuasive effect of the misconduct on the jury’s decision rather than the degree
of impropriety of the conduct.” Id. (quoting Cooper v. State, 854 N.E.2d 831,
835 (Ind. 2006)). To preserve a claim of prosecutorial misconduct, the
defendant must—at the time the alleged misconduct occurs—request an
admonishment to the jury, and if further relief is desired, move for a mistrial.
Id.
[23] Sciaraffa did not raise any objection to nor seek relief from the prosecutor’s
remarks during trial; rather, the record reflects that he acknowledged to the jury
that he intentionally failed to object to the contested statements. In order to
avoid procedural default, he now asserts that the State’s remarks constituted
fundamental error. In evaluating Sciaraffa’s claim, we look, in addition to the
customary requirements of the doctrine, at the alleged misconduct in the
context of all that happened and all relevant information given to the jury—
including evidence admitted at trial, closing argument, and jury instructions—
to determine whether the misconduct has such an undeniable and substantial
effect on the jury’s decision that a fair trial was impossible. Id.
[24] We stress that “[a] finding of fundamental error essentially means that the trial
[court] erred . . . by not acting when he or she should have.” Id. (quoting
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 11 of 16
Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012)). Fundamental error is meant to
permit appellate courts a means to correct the most egregious and blatant trial
errors that otherwise would have been procedurally barred, not to provide a
second bite at the apple for defense counsel who ignorantly, carelessly, or—like
here—strategically failed to preserve an error. Id.
[25] In closing argument, the State argued:
What do I have to prove? That a person, [Sciaraffa], knowingly or
intentionally manufactured methamphetamine pure or adulterated. So
I have to prove that it was the defendant, [Sciaraffa]. [Bragg] said it
was him. She knows him. She lived with him for three years. She
said she saw him do it. How do we know it was knowingly or
intentionally? She saw him take the steps, she handed him a fuel can,
she saw him burping the vessel, those are things that he was doing
intentionally. He knew what he was doing. How do we know it was
manufactured? We have the remnants. We have [Bragg’s] testimony
and most importantly we have the final product. [Bragg] told you the
night that he was making it they each had some. That it was the same
methamphetamine she has had every time. It gave her the same effect
that she knew it was methamphetamine. They used it again the next
morning. We know just like making cookies if you take some of the
steps out, if you are not manufacturing them, if you are not baking
them you don’t have the right finished product. We know he
manufactured because he had the finished product. [Bragg] saw him
do it, we have the remnants to prove he did it and we have the finished
product to show that he did it. . . . I anticipate [defense counsel] is
going to get up here and say well you didn’t find everything. . . . I
don’t have to give you every ingredient. Why is that? Because just
like when you bake cookies the ingredients go in and the sugar
dissolves, the eggs get mixed in, you no longer have those individual
ingredients. But again we know that the manufacturing, the baking,
takes place because you have the finished product. . . . We know that
they were all there, that they all went in because we have the finished
product.
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 12 of 16
(Tr. pp. 221-23). Pointing to the lack of “actual methamphetamine in
evidence,” Sciaraffa maintains that the prosecutor’s statements of “he had the
finished product” and “we have the final product” suggest to the jury that the
State “had actual evidence of methamphetamine in its possession that had been
excluded from presentation at trial.” (Appellant’s Br. p. 10). We disagree.
[26] Placed within the context of the closing argument, the State’s remark that “he
had the finished product” clearly referred to a permissible inference made from
analysis of the evidence presented at trial. Poling v. State, 938 N.E.2d 1212,
1217 (Ind. Ct. App. 2010). The State argued that Bragg’s testimony established
the manufacturing process, up to the consumption of the actual
methamphetamine—in other words, the final product. Bragg testified to the
jury that she aided Sciaraffa, she saw him burp the vessel, and shared some of
the drug.
[27] Furthermore, Sciaraffa’s argument that the State’s use of the term “we” alludes
to the cover-up of evidence is equally without merit. At trial, Sergeant Patrick
Zeider (Sergeant Zeider) explained to the jury that “all the liquids [he] located,
[he] tested” with water and pH paper on the scene. (Tr. p. 176). He also
specified that he only took samples from two containers: the Gatorade bottle
and the glass bottle with the milky, oily content. Sergeant Zeider clarified that
he placed the samples in evidence bags, properly labeled them, and delivered
them to the State Police Laboratory for further analysis by Scientist Burrow.
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 13 of 16
[28] Overall, the jury received preliminary and final instructions with correct
statements of the law. The court’s preliminary instruction No. 20 cautioned the
jury that “[w]hen the evidence is completed, the attorneys will make final
arguments. These final statements are not evidence. The attorneys are
permitted to characterize the evidence, discuss the law and attempt to persuade
you to a particular verdict. You may accept or reject those arguments as you
see fit.” (Tr. Vol. 6 Jury Instructions). Viewed in the totality and context of the
evidence, we conclude that the State’s comments during closing argument fell
within the bounds of prosecutorial advocacy and no misconduct, let alone
fundamental error, occurred.
III. Sufficiency of the Evidence.
[29] Lastly, Sciaraffa contends that the State failed to present sufficient evidence
beyond a reasonable doubt to support his conviction for dealing in
methamphetamine, a Class B felony. Generally, in addressing a claim of
insufficient evidence, an appellate court must consider only the probative
evidence and reasonable inferences supporting the judgment, without weighing
evidence or assessing witness credibility, and determine therefrom whether a
reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. Glenn v. State, 884 N.E.2d 347, 355 (Ind. Ct. App. 2008),
trans. denied.
[30] To convict Sciaraffa of dealing in methamphetamine, the State was required to
establish that Sciaraffa knowingly or intentionally manufactured
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 14 of 16
methamphetamine, pure or unadulterated. See I.C. § 35-48-4-1.1(a)(2013).
Focusing on Bragg’s testimony, Sciaraffa claims that “Bragg testified that she
smoked methamphetamine twice with Sciaraffa but there was no evidence
showing beyond a reasonable doubt that Sciaraffa actually made the
methamphetamine that she claims they smoked together.” (Appellant’s Br. p.
15). Insofar as Sciaraffa disputes Bragg’s testimony and requests this court to
reweigh her credibility, we decline his invitation as this is the “jury’s exclusive
province.” McHenry v. State, 820 N.E.2d 124, 126-27 (Ind. 2005). Considering
the evidence presented at trial, we conclude that the State carried its burden of
proof.
[31] Bragg testified that she saw Sciaraffa manufacture methamphetamine using the
“shake and bake” method during the evening of May 1 and into the early
morning hours of May 2, 2014. (Tr. p. 131). She noticed Sciaraffa “burp” the
vessel several times to release the gasses which had build up inside. (Tr. p.
126). She admitted that when the process reached its conclusion, she and
Sciaraffa sampled the product by smoking a small portion. Around 11 a.m. that
morning, Bragg wanted to catch another buzz, and she informed the jury that
both she and Sciaraffa smoked methamphetamine from a pipe in the garage,
after which Sciaraffa handed her a small amount in a little bag to consume
later. Bragg’s testimony is underscored by her self-professed four-year addiction
to methamphetamine; she knew what it looked like and was well-versed in the
manufacturing process.
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 15 of 16
[32] During a search of the residence later that same day, law enforcement officers
noticed a chemical-type smell emitting from the garage. Throughout Sciaraffa’s
residence, the officers also located items associated with the manufacture of
methamphetamine, including stripped lithium battery casings and a glass bottle,
which presumptively tested positive for methamphetamine. Mindful of the
testimony and evidence presented at trial, we conclude that the State
sufficiently supported Sciaraffa’s conviction for Class B felony dealing in
methamphetamine.
CONCLUSION
[33] Based on the foregoing, we hold that no fundamental error occurred during the
admission of the presumptive positive test for methamphetamine or the State’s
closing arguments. We also conclude that the State presented sufficient
evidence beyond a reasonable doubt to sustain Sciaraffa’s conviction for dealing
in methamphetamine.
[34] Affirmed.
[35] Vaidik, C. J. and Baker, J. concur
Court of Appeals of Indiana | Opinion | 09A04-1410-CR-470 | April 7, 2015 Page 16 of 16