FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARIELENA DUERRING GREGORY F. ZOELLER

Duerring Law Office Attorney General of Indiana

South Bend, Indiana

BRIAN REITZ

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KEVIN M. CLARK, )

)

Appellant-Defendant, )

)

vs. ) No. 20A05-1202-CR-62

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ELKHART SUPERIOR COURT

The Honorable George W. Biddlecome, Judge

Cause No. 20D03-1002-FA-7

October 31, 2012

OPINION - FOR PUBLICATION

MAY, Judge
2

Kevin Clark appeals the admission of evidence found in his bag and in the trunk of his 

car. He also appeals the admission of police testimony regarding the conversion of 

pseudoephedrine to methamphetamine.1 We affirm.

FACTS AND PROCEDURAL HISTORY

On August 25, 2011, Robert Dunlap, the owner of a self-storage facility, contacted 

police because he believed someone was living in a storage unit in violation of the rental 

agreement. Sergeant Michael McHenry and Officer Dustin Lundgren arrived at the scene at 

approximately midnight and went to the storage unit. Sergeant McHenry observed three 

men, including Clark, leaving the storage unit. Clark was carrying a black duffel bag and, 

when asked to stop, he sat the bag on the ground. Sergeant McHenry asked the men to sit on 

the ground, and they complied. Sergeant McHenry asked Clark if he had anything illegal in 

the bag, and Clark admitted there was marijuana in the bag. Sergeant McHenry searched the 

bag without a warrant or Clark’s consent. He found marijuana, baggies of 

methamphetamine, pseudoephedrine pills, a butane lighter, and clear plastic baggies.

Based on the items found in Clark’s bag, Sergeant McHenry suspected there may be 

an active methamphetamine lab on site. Sergeant McHenry took his drug-sniffing dog to 

investigate Clark’s car, and the dog indicated two areas where drugs might be found in the 

vehicle. Sergeant McHenry found marijuana in the vehicle and, upon opening the trunk, 

detected an ammonia-type smell consistent with methamphetamine manufacture. Sergeant 

 

1

 Clark listed sufficiency of the evidence as an issue on appeal, but he makes no argument regarding that issue. 

Therefore, we decline to address it. See Ind. Appellate Rule 46(A)(8)(a); Matheney v. State, 688 N.E.2d 883, 

907 (Ind. 1997) (failure to make a cogent argument on appeal waives the issue for our consideration).
3

McHenry opened a tool box in the trunk, determined the methamphetamine laboratory inside 

was not active, and obtained a search warrant for the vehicle. Sergeant McHenry called 

Trooper Maggie Shortt to the scene, and she processed the methamphetamine lab.

The State charged Clark with Class A felony attempted dealing in methamphetamine,2

Class D felony possession of chemical reagent or precursors with intent to manufacture 

controlled substances,3and Class A misdemeanor possession of marijuana.4 After a jury trial, 

Clark was convicted of Class A felony attempted dealing in methamphetamine and sentenced 

to forty-five years incarcerated.

DISCUSSION AND DECISION

Admission of evidence is within the sound discretion of the trial court, and we review 

its decision for an abuse of discretion. Cox v. State, 774 N.E.2d 1025, 1026 (Ind. Ct. App. 

2002). An abuse of discretion occurs when the decision is clearly against the logic and effect 

of the facts and circumstances before the court. Id. We consider only the evidence in favor 

of the trial court’s decision. Id. Clark argues the trial court abused its discretion when it 

admitted evidence procured from an illegal search and seizure of Clark’s bag.

1. Search and Seizure of Clark’s Bag

The Fourth Amendment to the United States Constitution5 provides:

The right of the people to be secure in their persons, houses, papers and 

effects, against unreasonable searches and seizures, shall not be violated, and 

no warrants shall issue, but upon probable cause, supported by oath or 

 

2

Ind. Code § 35-41-5-1 (attempt); Ind. Code § 35-48-4-1(b)(1) (dealing in cocaine or narcotic drug).

3

Ind. Code § 35-48-4-14.5(a).

4

Ind. Code § 35-48-4-11.

5 Clark does not challenge the admission of the evidence based on the Indiana Constitution.
4

affirmation, and particularly describing the place to be searched, and the 

persons or things to be seized.

Officer McHenry’s initial search of Clark’s bag and vehicle occurred without a warrant. 

When a search is conducted without a warrant, the search must fall within one of the 

exceptions to the warrant requirement and be constitutionally reasonable. Berry v. State, 704 

N.E.2d 462, 465 (Ind. 1998). Warrantless searches may be constitutional when: (1) incident 

to an arrest, which requires probable cause a crime has been committed, or (2) as part of an 

investigative stop, which requires reasonable suspicion a crime may be occurring or is about 

to occur. Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), reh’g denied.

Clark argues the officers did not have reason to believe criminal activity was afoot. 

We disagree. The police were summoned to the storage facility by its owner, who believed 

one of the tenants was committing criminal trespass by living in the storage unit in violation 

of the storage facility rental agreement. That report gave the officers reasonable suspicion of 

criminal activity, which justified stopping the tenant, Clark, and the third man with them. 

See State v. Eichholtz, 752 N.E.2d 163, 167 (Ind. Ct. App. 2001) (911 call from identified 

source sufficient to establish reasonable suspicion). 

Just after the officers stopped the three men, Clark admitted he had marijuana in the

bag he was carrying. That admission gave Officer McHenry probable cause to search the 

bag. See State v. Spillers, 847 N.E.2d 949, 955 (Ind. 2006) (an admission of criminal activity 

is sufficient to support probable cause). 

Because the officers had reasonable suspicion to stop the men and because Clark 
5

admitted his bag contained marijuana, we cannot say the trial court abused its discretion in 

admitting the items found in Clark’s black duffel bag.6

2. Testimony Regarding Conversion of Pseudoephedrine to Methamphetamine

To prove Clark committed Class A felony attempted dealing in methamphetamine, the 

State had to prove Clark possessed more than three grams of methamphetamine. See Ind. 

Code §35-48-4-1(b)(1). During trial, over Clark’s objection, the Prosecutor elicited the 

following testimony from Trooper Shortt:

[State]: Trooper Shortt, you testified that you yourself have 

manufactured methamphetamine?

[Shortt]: Correct.

[State]: And you’ve been involved in investigations in over 200 

methamphetamine laboratories?

[Shortt]: Correct.

[State]: So you’ve seen how much finished product is typically produced 

in methamphetamine one-pot methods; is that fair to say?

[Shortt]: I’ve seen meth at scenes.

[State]: Okay.

[Shortt]: I can’t sit up here and testify that the meth that I see at scenes 

came from the cook that was currently going on, because, 

generally, the cooks that are currently going on that I process 

have not reached the HCl phase.

[State]: Okay. When you did the methamphetamine cooks yourself, did 

it go through the HCl phase?

[Shortt]: It did.

[State]: And did it receive an amount at that point in time that you could 

see?

[Shortt]: That I could see, yes.

[State]: Typically, how much quantity would you see when it went 

through the final stage, and it precipitated out into a solid form?

 

6 Clark also argues Officer McHenry’s search of Clark’s car was illegal because it was tainted by the illegal 

search of his bag. However, as the search of his bag was constitutional, it could not have tainted the search of 

his car, and we need not address this argument. See, e.g., Aldrich v. Coda, 732 N.E.2d 243, 245 n.2 (Ind. Ct. 

App. 2000) (court declined to address subsequent issue when decision regarding initial issue precluded such 

argument).
6

[Shortt]: It looked to be over 50 percent of what we started with.

[State]: Okay. So in your experience it was over a 50 percent from the 

amount that you put in of pseudoephedrine to what you actually 

saw come out in the end; is that fair to say?

[Shortt]: Yes.

(Tr. at 569-70.) Clark argues the trial court abused its discretion when it allowed Trooper 

Shortt to testify regarding the conversion ratio of pseudoephedrine to methamphetamine. We 

disagree.

Ind. Evidence Rule 701 provides:

If the witness is not testifying as an expert, the witness’s testimony in the form 

of opinions or inferences is limited to those opinions or inferences which are 

(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 at issue.

A skilled witness is one who has “a degree of knowledge short of that sufficient to be 

declared an expert under Rule 702, but somewhat beyond that possessed by the ordinary 

jurors.” Mariscal v. State, 687 N.E.2d 378, 380 (Ind. Ct. App. 1997) (quoting 13B Robert L. 

Miller Jr., Courtroom Handbook on Indiana Evidence 196 (1996)), trans. denied. A police 

officer’s experience and training may be the foundation for skilled witness testimony. 

Stephenson v. State, 742 N.E.2d 463, 480 (Ind. 2001), cert. denied 534 U.S. 1105 (2002).

Trooper Shortt’s testimony was rationally based on her perceptions and was helpful to 

the determination of facts at issue in the case. Trooper Shortt testified she had investigated 

over 200 methamphetamine labs and had twice cooked methamphetamine herself. She began 

investigating methamphetamine laboratories in 2007, completed a forty-hour course on the 

manufacture of methamphetamine, and participated in a twenty-four hour job training at the 
7

Indiana State Police clandestine laboratory. She is required to take at least eight hours of 

refresher training each year. Her testimony could reasonably assist the jury in deciding 

whether Clark possessed the components to produce more than three grams of 

methamphetamine. For these reasons, we hold the trial court did not abuse its discretion 

when it allowed Trooper Shortt to testify over Clark’s objection.

CONCLUSION

The trial court did not abuse its discretion in admitting the evidence gleaned from the 

search of Clark’s bag and car because the officers had reasonable suspicion to stop Clark and 

search Clark’s bag after he admitted it contained marijuana. Nor did the trial court abuse its 

discretion when it allowed Trooper Shortt to testify over Clark’s objection because her 

testimony was opinion testimony of a lay witness based on her experience, and not expert 

testimony. Accordingly, we affirm.

Affirmed.

NAJAM, J., and KIRSCH, J., concur.