Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 1 of 22

MEMORANDUM DECISION

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

Joel M. Schumm

Indianapolis, Indiana

Janet L. Wheeler

Certified Legal Intern

Indiana University–Robert H. 

McKinney School of Law

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tyler G. Banks

Supervising Deputy Attorney 

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Travon D. Blow,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 18, 2019

Court of Appeals Case No.

19A-CR-1183

Appeal from the Marion Superior 

Court

The Honorable Alicia A. Gooden, 

Judge

The Honorable Richard E. 

Hagenmaier, Commissioner

Trial Court Cause No.

49G21-1711-F2-43236

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 2 of 22

Statement of the Case

[1] Travon D. Blow appeals his convictions for dealing in a narcotic drug, as a 

Level 3 felony, and dealing in cocaine, as a Level 4 felony, following a jury 

trial. Blow raises three issues for our review, which we restate as follows:

1. Whether the trial court erred when it denied Blow’s 

request to proceed pro se, which request was accompanied 

by a request for counsel and, in any event, was made for 

the first time following the close of the evidence.

2. Whether the trial court improperly relied on defunct 

principles of res gestae when the court admitted into 

evidence certain text messages seized from Blow’s cell 

phone.

3. Whether the trial court erred when it permitted a detective 

to testify that certain evidence was consistent with or 

indicative of dealing in narcotics or being a dealer in 

narcotics.

[2] We affirm.

Facts and Procedural History

[3] On November 4, 2017, Indianapolis Metropolitan Police Department 

(“IMPD”) Officer Christopher Cooper initiated a traffic stop of a vehicle being 

driven by Blow on the west side of Indianapolis. After Officer Cooper activated

his emergency lights, Blow stopped his vehicle next to a gas pump at a nearby 

gas station and exited the vehicle. Officer Cooper observed Blow get out of his 

vehicle, drop a cell phone on the ground, and then reach his arm out of Officer 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 3 of 22

Cooper’s immediate view but near the area of a trash bin. Officer Cooper 

ordered Blow to return to the vehicle, which he did, and Officer Cooper called 

for backup. 

[4] After other IMPD officers arrived on the scene, Officer Cooper searched the 

trash bin near where he had observed Blow place his arm. There was trash 

inside the bin, but it was not “all the way full.” Tr. Vol. II at 179. However,

“on the top of everything that was in the” trash bin, Officer Cooper observed a 

clear plastic baggie with “several foil bindles” inside of it. Id. at 178. Officer 

Cooper looked more closely at the foil bindles and observed “white powder 

rock substances inside and also brown tannish substances,” which he 

recognized from his training and experience to be crack cocaine and heroin

packaged for distribution. Id. at 179. Officer Cooper then placed Blow under 

arrest and searched Blow’s person, seizing $574 in cash, mostly in twenty dollar 

bills. A later analysis determined that the baggie in the trash bin contained at 

least 1.29 grams of cocaine and 5.57 grams of heroin.

1

 Officers also seized the 

cell phone.

[5] The State charged Blow, in relevant part, with dealing in a narcotic drug, as a 

Level 3 felony, and dealing in cocaine, as a Level 4 felony. Officer Cooper 

testified at Blow’s ensuing jury trial, as did a chemist for the Marion County 

Forensics Services Agency. The State also called Samuel LaCorte, a certified 

1

 There was not enough of either substance to charge higher-level felonies, and so the laboratory did not 

conduct further tests.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 4 of 22

cell phone data extractor, and during his testimony the State had admitted into 

evidence numerous records from the cell phone seized at the gas station. Those 

records included text messages between Blow and an individual identified as 

“Wiz” in which Blow stated, for example: “I got 7 hun for 10 . . . u think i can 

get some extras for my [b]i[r]thday?”; “Can u bring the 10 to the house when u 

come tonight. i got the 7 . . . ”; “I gotta use the scale bruh. can i come thru”; 

“Left my scale at home. so when u get t[h]is way i need 2 use yours. let me 

kno bro”; “Around the corner. Comin up the alley”; “Get 8 of em ready for me 

real quick bro . . . .”; “I need 10 bro”; “Need 15”; “15 bro”; “Need 15”; “One is 

a stack fifty . . . the other is a G . . . .”; “20 . . . jus take a g . . . and ima slide 

down on u with the rest!” Ex. Vol. I at 69-70. Blow objected to the admission 

of the text messages between him and Wiz under Indiana Evidence Rule 

404(b). Tr. Vol. II at 55-56, 217. The trial court overruled Blow’s objection.

[6] The State also called IMPD Detective Ryan Vanoeveren as a witness. 

Detective Vanoeveren has fifteen years of experience in narcotics investigations 

and has been involved in “hundreds” of cases involving heroin and a “similar” 

number involving cocaine. Id. at 225. After some background, the State began 

to ask Detective Vanoeveren questions about the baggie Office Cooper 

discovered in the trash bin. At that point, Blow objected on the ground that any 

questions as to “whether or not this evidence in particular is consistent with 

dealing or possession with intent to deal” would require Detective Vanoeveren 

to impermissibly testify to a “final conclusion” that was “the job of the jury to 

figure out . . . .” Id. at 240-41. The court overruled Blow’s objection.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 5 of 22

[7] Detective Vanoeveren then testified that the baggie appeared to contain “illegal 

narcotics” that had been “individually bagged up . . . for sale,” which was in his 

training and experience “consistent with . . . dealing.” Id. at 241. He testified 

that the street value of each foil bindle of heroin in the baggie was $20. He 

further testified that he had never personally encountered a user with “more 

than 10 bindles on them,” let alone fifty-eight. Id. at 242-43. He testified that

that much heroin was “consistent with” a “dealer.” Id. at 243. 

[8] When then asked “what conclusion if any” he could make from the amount of 

the cocaine found in the baggie, Detective Vanoeveren testified, “[a]ll together 

it’s dealing” and that it was “[a]ll consistent with dealing.” Id. at 243. He 

added that the amount of cocaine in each foil bindle had a street value of $20. 

He again testified that he had never encountered a user “that has more than 10” 

such bindles, let alone the twenty-seven that were in the plastic baggie. Id. at 

244. And he testified that the amount of cocaine in total was “indicative” of a 

“[d]ealer” and not a user. Id. 

[9] The State proceeded to ask Detective Vanoeveren about the “$574 in cash” 

found on Blow and whether “that amount of cash [was] indicative of using or 

dealing . . . .” Id. at 244-45. Blow objected and “re-state[d]” his “objection 

from previously.” Id. at 245. The court overruled Blow’s objection. Detective 

Vanoeveren testified that the number of twenty dollar bills in particular found 

on Blow was “consistent with somebody who’s dealing.” Id. at 246.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 6 of 22

[10] The State then “move[d] on to some text messages” recovered from Blow’s cell 

phone. Id. In reviewing those text messages, Detective Vanoeveren testified, 

without objection, that Wiz appeared to be a “supplier,” that the text messages 

“indicate[d]” that the “relationship between Wiz and this target phone is a drug 

dealing relationship,” and that the messages were “consistently ordering 

drugs.” Tr. Vol. III at 3-5. Detective Vanoeveren further testified that the 

reference to scales in those messages was consistent with dealing, though it was 

“certainly possible” for a user to also have scales. Id. at 4. And Detective 

Vanoeveren concluded by agreeing that the text messages 

“overall . . . indicat[ed] drug conversation.” Id. at 7.

[11] After the close of the State’s case-in-chief and outside the presence of the jury, 

Blow’s counsel informed the court that the defense intended to rest. Id. at 18. 

The following colloquy then occurred between the court, Blow, and the 

attorneys:

THE COURT: Mr. Blow, did you have something you want to 

say?

DEFENDANT: Yes. There is a strong conflict of interest, and I 

do not feel that proceeding to trial with this conflict of interest 

with my attorney here is . . . affording me a fair trial. I would 

like to go pro se.

THE COURT: Well, you can’t go pro se during the middle of 

the trial . . . . The State has rested. Are you going to testify or 

put on a defense? . . .
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 7 of 22

DEFENDANT: There’s a conflict of interest, Your Honor.

* * *

THE COURT: What is the conflict of interest?

* * *

DEFENDANT: We aren’t seeing eye to eye. . . . [T]here’s 

confusion between us.

THE COURT: You mean you just don’t get along with them

[your two attorneys], right?

DEFENDANT: There’s a conflict of interest. . . .

THE COURT: Alright. It seems to me that you [are] . . . just 

expressing displeasure with your attorneys, not that there’s 

actually a conflict of interest. . . . [S]o one more time, sir, are 

you going to testify or not? . . . We’re not gonna hold up these 

proceedings much longer?

* * *

DEFENDANT: I want to share something with the court[], 

please?

THE COURT: Yes, Sir.

DEFENDANT: Um, the oath of attorney, Rule 22, states that I 

do solemnly swear or affirm that I will support the Constitution 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 8 of 22

of the United . . . States and the Constitution of the State of 

Indiana. . . .

* * *

THE COURT: What’s your motion?

DEFENDANT: My motion is to be afforded a fair trial and to 

go pro se.

THE COURT: Okay. I deny your right to [proceed] pro se. 

Bring the jury back in.

* * *

[DEFENSE COUNSEL]: . . . [I]f I could request 10 

minutes . . . .

THE COURT: No, we’re done. We’re not gonna take any more 

time on this.

[DEFENSE COUNSEL]: . . . [A]s far as Mr. Blow testifying, I 

have advised him I believe it’s not in his best interest.

THE COURT: Okay.

[DEFENSE COUNSEL]: . . . [W]e have talked about it and he 

has agreed that it is not in his best interest.

THE COURT: Okay.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 9 of 22

[DEFENSE COUNSEL]: So, I just wanted to put that on the 

record.

THE COURT: Alright. So, we are going to proceed. . . .

[THE PROSECUTOR]: Judge, I’m sorry. . . .

THE COURT: . . . [W]hat do you want to do?

[THE PROSECUTOR]: He’s invoked his right to go pro se.

THE COURT: He’s not going pro se. I denied that.

[THE PROSECUTOR]: Okay. But I think the court should 

have a hearing with him on that issue before moving along.

* * *

THE COURT: . . . [N]o matter what he tells me, he’s not going 

to now go pro se during the middle of the trial. How far did you 

go in school, Mr. Blow?

DEFENDANT: What I mean by going pro se is to be afforded 

some time to continue the furtherance of my investigation of my 

own case.

THE COURT: No, no, no, we’re not going to that. You want to 

represent yourself, is that what you’re saying?

DEFENDANT: I want to afford an attorney that will represent 

me according to my likeness.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 10 of 22

THE COURT: Okay. Alright. I think . . . the gist of this is that 

he’s just not happy with his attorneys. He doesn’t think they’re 

doing what is in his best interest. He’s just telling me he wants to 

go with another attorney. You’re not getting a continuance. 

You’re not competent to represent yourself at this point because 

of what’s going on. So, we are gonna bring the jury out, and I’m 

gonna ask you if you rest or not. . . .

Id. at 19-23. The court then called the jury back in, and defense counsel rested. 

After closing statements, the jury found Blow guilty of dealing in a narcotic 

drug, as a Level 3 felony, and dealing in cocaine, as a Level 4 felony. The court 

entered its judgment of conviction and sentenced Blow accordingly, and this 

appeal ensued.

Discussion and Decision

Issue One: Blow’s Purported Request to Proceed Pro Se

[12] On appeal, Blow first asserts that the trial court erred under the Sixth 

Amendment to the United States Constitution and under Article 1, Section 13 

of the Indiana Constitution when it denied his purported request to proceed pro 

se. “A request to proceed pro se is a waiver of the right to counsel, and 

consequently, there are several requirements to invoking the right of selfrepresentation successfully.” Stroud v. State, 809 N.E.2d 274, 279 (Ind. 2004). 

“A defendant’s request must be clear and unequivocal, and it must be made 

within a reasonable time prior to the first day of trial.” Id. (cleaned up); see also 

Sherwood v. State, 717 N.E.2d 131, 135 (Ind. 1999) (citing Hunt v. State, 459 

N.E.2d 730, 733 (Ind. 1984)). 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 11 of 22

[13] A defendant’s request is not “clear and unequivocal” where, in making the 

request, he “vacillate[s] between representing himself and being represented by 

counsel.” Stroud, 809 N.E.2d at 280. And the “[f]ailure to make a timely 

request is deemed a waiver” of the right to proceed pro se. Hunt, 459 N.E.2d at 

733. “[M]orning-of-trial requests are per se untimely.” Moore v. State, 557 

N.E.2d 665, 669 (Ind. 1990). The “denial of such a request is permissible.” 

Hotep-El v. State, 113 N.E.3d 795, 809 (Ind. Ct. App. 2018), trans. denied.

[14] Blow’s purported request to proceed pro se was not “clear and unequivocal” and 

also was not timely. See Stroud, 809 N.E.2d at 279. Following the close of the 

State’s case-in-chief, Blow informed the trial court that he wanted to proceed 

“pro se.” Tr. Vol. III at 19. The court’s initial reaction was to deny the request 

as untimely, given that Blow first made the request not even as early as the 

morning of trial but only after all the evidence had already been presented. 

Nonetheless, the court inquired2 with Blow about his purported request, and in 

his colloquy with the court Blow stated that he wanted “some time to continue 

the furtherance of my investigation of my own case” and that he “want[ed] to 

afford an attorney that will represent me according to my likeness.” Id. at 23.

[15] The trial court had no obligation to grant Blow’s end-of-trial request. Blow’s 

request vacillated between going forward pro se and going forward with different 

counsel. As such, his request was not a clear and unequivocal invocation of the 

2

 Although the court was understandably frustrated with Blow’s maneuver, we reject Blow’s assertion on 

appeal that “the court refused to evaluate the merits” of his request. Appellant’s Br. at 10.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 12 of 22

right to proceed pro se. Stroud, 809 N.E.2d at 280. Moreover, if a morning-oftrial request is per se untimely, Blow’s request—which came after the close of 

evidence and, contrary to Blow’s assertions on appeal, was accompanied by a 

request for a continuance to conduct further evidentiary investigation3

—was as 

untimely as it gets. The trial was effectively over. The court acted within its 

discretion in denying Blow’s request.

[16] We also briefly address Blow’s freestanding argument under Article 1, Section 

13 of the Indiana Constitution. According to Blow, that provision of the 

Indiana Constitution affords more robust protections for self-representation 

than does the Sixth Amendment. But the Indiana Supreme Court thinks 

otherwise. The Court has held that Article 1, Section 13 “track[s] federal 

standards” and “gives no broader rights than the Sixth Amendment” with 

respect to claims of self-representation. Edwards v. State, 902 N.E.2d 821, 828-

29 (Ind. 2009). 

[17] Blow asserts that Edwards is limited to mentally impaired defendants, but we 

agree with the State that Blow’s reading is without merit. Under Blow’s 

reading of Edwards, limiting Article 1, Section 13 to federal standards for the 

mentally impaired but granting broader rights to defendants not so impaired 

“give[s] lesser protection to more vulnerable people than it would for nonmentally-impaired defendants . . . .” Appellee’s Br. at 16. We reject Blow’s

3

 Blow erroneously asserts on appeal that his purported request to proceed pro se was simply to present his 

own closing argument. Appellant’s Br. at 11.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 13 of 22

assessment accordingly. There is no separate analysis for this Court to consider 

under the Indiana Constitution. Edwards, 902 N.E.2d at 828-29. We affirm the 

trial court’s denial of Blow’s equivocal and untimely request to proceed pro se.

Issue Two: Admission of the Text Messages

[18] We next consider Blow’s argument that the trial court abused its discretion 

when it admitted into evidence, over Blow’s objection, the text messages 

recovered from Blow’s cell phone. We review the trial court’s evidentiary 

rulings for an abuse of discretion. Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017). 

An abuse of discretion occurs when the trial court’s decision is clearly against 

the logic and effect of the facts and circumstances before the court. Id. “In our 

review, we look to the totality of the circumstances and consider conflicting 

evidence in the light most favorable to the trial court’s ruling.” Id.

[19] Blow objected to the admission of the text messages under Indiana Evidence 

Rule 404(b). That Rule states in relevant part that “[e]vidence of a crime, 

wrong, or other act is not admissible to prove a person’s character in order to 

show that on a particular occasion the person acted in accordance with the 

character.” Ind. Evidence Rule 404(b)(1). However, such evidence “may be 

admissible for another purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” 

Evid. R. 404(b)(2) (emphasis added).

[20] Blow asserts on appeal that the text messages were inadmissible under Rule 

404(b)(2) because some of those messages “did not occur near the same time or 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 14 of 22

under the same circumstances as [the] charged offense[s] . . . .” Appellant’s Br. 

at 17. Specifically, Blow argues that the State and trial court improperly relied 

on defunct principles from the doctrine of res gestae rather than on legal concepts 

embodied by our modern Evidence Rules. Blow asserts that “the trial court 

relied heavily” on res gestae authority; that the court admitted the evidence 

“based on its intrinsic nature” to the charged offenses; and that the State offered 

the text messages to “complete[] the story,” show “course of conduct,” and 

“give context” to Blow’s arrest. Id. at 18 (quotation marks omitted).

[21] As our Supreme Court has explained: “Res gestae—the common-law doctrine 

that made evidence admissible as part of a crime’s story—did not survive the 

adoption of Indiana’s Rules of Evidence in 1994.” Snow, 77 N.E.3d at 176. 

Arguments that evidence is admissible because, for example, it is “inextricably 

bound up,” “inextricably intertwined,” within the “circumstances and context,” 

or is “part and parcel” with other evidence “are not proper grounds for 

admissibility.” Id. at 177 (quotation marks omitted). Instead, the admissibility 

of evidence is to be determined under “the legal concepts and vocabulary of the 

Indiana Rules of Evidence.” Id. (quotation marks omitted).

[22] Blow’s attribution of res gestae principles to the State and trial court misstates the 

record. In the trial court, defense counsel, not the State, repeatedly argued, along 

the lines of res gestae, that the text messages were inadmissible because they did 

not go to “the story” of the charges. Tr. Vol. II at 59. In one hearing before the 

court, defense counsel argued that “case law[] makes it clear 

that . . . the . . . text messages . . . can come in if they are . . . intrinsic to the 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 15 of 22

crime charged.” Id. at 58-59. In support of that statement, defense counsel 

cited Bennett v. State, a pre-Snow, 2014 opinion from our Court. 5 N.E.3d 498 

(Ind. Ct. App. 2014). Defense counsel then attempted to distinguish Bennett

and asserted that the text messages here were inadmissible because they were 

extrinsic to the charges and did not “complete[] the story” or tell “the rest of the 

story” of the alleged offenses. Tr. Vol. II at 59-60. At a subsequent hearing 

before the court, defense counsel repeated those arguments, stating that, for the 

text messages to be admissible, the State must show that they “complete the 

story.” Id. at 145-47.

[23] The State responded to Blow’s objection by asserting that the text messages 

were relevant to showing Blow’s “intent to deal” and “intent to deliver” the 

cocaine and heroin. Id. at 56, 147. The trial court agreed, stating that the text 

messages were admissible under “the exception”—Rule 404(b)(2)—because 

they “go[] to show intent.” Id. at 58. And while the State did respond to 

Blow’s specific argument by additionally asserting that the evidence 

“complet[ed] the story,” the context of the proceedings as a whole makes clear

that the State’s position to the trial court was that the evidence was admissible 

under Rule 404(b)(2) as evidence of Blow’s intent to deal. Id. at 147. Further, 

in overruling Blow’s objection to part of the messages, the court stated, “I read 

the Bennett case. . . . [T]he relevance is . . . he possess[es] . . . the intent.” Id. at 

148.

[24] Blow’s reading of the record is incorrect, and the record does not support his 

argument on this issue. Accordingly, we are not persuaded by his argument 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 16 of 22

that the trial court erred when it admitted the text messages by relying on 

principles of res gestae. The State moved to admit the text messages as evidence 

of Blow’s intent, consistent with Indiana Evidence Rule 404(b)(2). And the 

trial court quite specifically agreed. As Blow does not present an argument on 

appeal supported by cogent reasoning that the evidence was not relevant to his 

intent under that Rule, we affirm the trial court’s admission of the text 

messages. See Ind. Appellate Rule 46(A)(8)(a).

Issue Three: Detective Vanoeveren’s Testimony 

[25] We next address Blow’s argument that the trial court erred when it permitted 

Detective Vanoeveren to testify to “ultimate conclusions of guilt.” Appellant’s 

Br. at 14. We initially note that Blow objected to only part of Detective 

Vanoeveren’s testimony.

4

 In particular, Blow objected to Detective 

Vanoeveren’s testimony regarding the contents of the plastic baggie and the

cash. Blow did not object to Detective Vanoeveren’s testimony regarding the 

text messages. However, on appeal Blow conflates the different parts of

Detective Vanoeveren’s testimony under the same standard of review, which is 

incorrect. We will review Blow’s properly preserved objections under our abuse 

of discretion standard, and we will review his unpreserved arguments under our 

fundamental error standard.

4

 Blow mistakenly asserts on appeal that his two objections were “continuing” objections. Appellant’s Br. at 

5. They were not. Tr. Vol. II at 240, 246.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 17 of 22

Whether the Trial Court Abused Its Discretion

[26] We first consider whether the trial court abused its discretion in the admission 

of those portions of Detective Vanoeveren’s testimony to which Blow objected. 

Again, the trial court has broad discretion when ruling on the admissibility of 

evidence, and we will reverse the trial court’s judgment only when its decision 

is clearly against the logic and effect of the facts and circumstances before the 

court. Snow, 77 N.E.3d at 176.

[27] Detective Vanoeveren testified as a skilled witness. As the Indiana Supreme 

Court has explained:

Although a witness may not be qualified to offer expert 

testimony under Indiana Evidence Rule 702, the witness may be 

qualified as a “skilled witness” (sometimes referred to as a 

“skilled lay observer”), see Warren v. State, 725 N.E.2d 828, 831 

(Ind. 2000), under Indiana Evidence Rule 701. A skilled witness 

is a person with “a degree of knowledge short of that sufficient to 

be declared an expert under [Indiana Evidence] Rule 702, but 

somewhat beyond that possessed by the ordinary jurors.” 13 

Robert Lowell Miller, Jr., Indiana Evidence § 701.105, at 318 (2d 

ed. 1995). Under Indiana Evidence Rule 701, a skilled witness 

may provide an opinion or inference that is “(a) rationally based 

on the perception of the witness and (b) helpful to a clear 

understanding of the witness’s testimony or the determination of 

a fact in issue.” Evid. R. 701.

Kubsch v. State, 784 N.E.2d 905, 922 (Ind. 2003). “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 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 18 of 22

conclusions.” Evid. R. 704(b). However, “[t]estimony in the form of an 

opinion or inference otherwise admissible is not objectionable just because it 

embraces an ultimate issue.” Evid. R. 704(a).

[28] In Williams v. State, on which Blow substantially relies, the Indiana Supreme 

Court held a detective’s testimony that “‘there’s zero doubt in my mind that 

that was a transaction for cocaine’ crossed the line into declaring [the 

defendant’s] guilt.” 43 N.E.3d 578, 582 (Ind. 2015). As the Court explained:

In the context of this drug-dealing offense, [the detective’s]

testimony . . . does not just describe or imply some elements of 

the offense, but all of them—including mens rea. [The detective]

could (and indeed did) imply guilt by explaining to the jury the 

process of controlled buys and utilizing confidential informants; 

his experience handling narcotics; and how narcotics are weighed 

and tested. He could also testify to the validity and authenticity 

of the audio and video recordings produced during both 

transactions. And he could testify to all of the particular actions 

of the [d]efendant: that on the first buy, he handed the CI 

money; the CI completed a hand-to-hand exchange with [the 

defendant]; and the CI returned to the vehicle with crack cocaine. 

All of these statements would have been admissible, even though 

they may quite strongly lead to an inference of dealing in 

cocaine. But [the detective] was not permitted to expressly state 

the ultimate legal conclusion that [the defendant] performed a 

“transaction for cocaine.” At that point, his testimony no longer 

merely implied guilt, but declared it just as conclusively as if he 

had stated, “there’s zero doubt in my mind that he is guilty of 

dealing cocaine”—a statement that would clearly violate Rule 

704(b). Since his testimony that a “transaction for cocaine” 

occurred effectively resolved the ultimate issue of guilt as to the 

first buy, the trial court abused its discretion by admitting this 

statement 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 19 of 22

Id. at 582-83 (cleaned up).

[29] We agree with the State that Williams does not control here. Detective 

Vanoeveren’s testimony with respect to the contents of the plastic baggie and 

the cash was never that “Blow is a dealer,” that “Blow was dealing,” or a like 

statement. Rather, Detective Vanoeveren’s testimony was that, based on his 

training and experience, the amount of contraband found in the trash bin was 

“consistent with” and “indicative” of a “dealer,” Tr. Vol. II at 243-44; that the 

manner in which the contraband was packaged was “consistent with dealing,” 

id. at 241, 243; and that the amount of money found on Blow, especially the 

number of twenty dollar bills, was “consistent with somebody who’s dealing,” 

id. at 246. Without question, Detective Vanoeveren’s testimony created a 

strong inference of guilt against Blow, but Detective Vanoeveren himself did 

not declare Blow guilty or otherwise cross the line into deciding the ultimate 

issue of Blow’s guilt. He merely testified that the contraband and cash 

discovered at the gas station and on Blow’s person was evidence consistent with 

dealing in narcotics. 

[30] Nonetheless, Blow asserts that our Court has held that testimony that the 

evidence is “indicative of a dealer” impermissibly reaches an ultimate issue. 

Appellant’s Br. at 15 (citing Scisney v. State, 690 N.E.2d 342, 346 (Ind. Ct. App. 

1997), summarily aff’d in relevant part, 701 N.E.2d 847, 849 (Ind. 1998)). Blow 

misreads Scisney. In that case, the State couched the defendant’s facts as a 

hypothetical and then asked the witness whether a “hypothetical” defendant on 

such facts “would be a ‘suspect dealer.’” 690 N.E.2d at 345-46. After the 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 20 of 22

witness agreed, the State then proceeded to “isolate[] each of the relevant facts 

and solicit[] testimony concluding that each fact was indicative of a dealer[,] 

not a user, thus reinforcing the conclusion that [the defendant] was a dealer.” 

Id. at 346.

[31] We held as follows:

the expert may not make conclusions as to whether the defendant 

is a dealer or whether the defendant had the intent to deal or 

deliver. Similarly, the expert may not be presented with a 

hypothetical set of facts which reflect the facts of the case and be 

asked to conclude whether a hypothetical individual is more 

likely a dealer or user.

Id. However, we recognized that such witnesses “may offer testimony as to 

whether particular facts tend to be more or less consistent with dealing in 

drugs.” Id. In other words, we acknowledged, explicitly contrary to Blow’s 

argument, that a witness may testify to whether particular facts are consistent 

with dealing or with being a dealer, and Blow’s assertion that we prohibited 

testimony regarding whether a fact is “indicative of a dealer” misreads Scisney. 

Accordingly, the trial court did not abuse its discretion when it permitted

Detective Vanoeveren’s testimony with respect to the contents of the plastic 

baggie and the cash, and we affirm the court’s admission of that testimony.

Whether the Trial Court Committed Fundamental Error

[32] Blow also asserts that the trial court erred when it permitted Detective 

Vanoeveren’s testimony regarding the text messages. As Blow did not object to 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 21 of 22

this part of Detective Vanoeveren’s testimony, to demonstrate reversible error 

on this issue Blow must show that fundamental error occurred. C.S. v. State, 

131 N.E.3d 592, 595 (Ind. 2019) (quoting Kelly v. State, 122 N.E.3d 803, 805 

(Ind. 2019)). “An error is fundamental . . . if it made a fair trial impossible or 

constituted a clearly blatant violation of basic and elementary principles of due 

process presenting an undeniable and substantial potential for harm.” Id.

(quotation marks omitted). “Fundamental error is a daunting standard that 

applies only in egregious circumstances where the trial judge should have 

corrected the situation sua sponte.” Id. at 596 (cleaned up).

[33] Although Blow does not argue that fundamental error occurred and has 

therefore waived this issue for our review, his waiver notwithstanding, 

Detective Vanoeveren testified that Wiz appeared to be a “supplier,” that the 

text messages “indicate[d]” that the “relationship between Wiz and this target 

phone is a drug dealing relationship,” and that the messages were “consistently 

ordering drugs.” Tr. Vol. III at 3-5. Detective Vanoeveren further testified that 

the reference to scales in those messages was consistent with dealing, though it 

was “certainly possible” for a user to also have scales. Id. at 4. And Detective 

Vanoeveren concluded by agreeing that the text messages 

“overall . . . indicat[ed] drug conversation.” Id. at 7.

[34] For the same reasons the trial court did not abuse its discretion when it 

permitted Detective Vanoeveren to testify about the plastic baggie and the cash, 

the trial court also did not err, let alone commit fundamental error, when it 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1183 | December 18, 2019 Page 22 of 22

permitted Detective Vanoeveren’s testimony about the text messages. We 

affirm the trial court’s nonintervention in that testimony.

Conclusion

[35] In sum, we affirm Blow’s convictions.

[36] Affirmed.

Vaidik, C.J., and Tavitas, J., concur.