Court of Appeals of Indiana | Opinion 48A05-1407-CR-321 | March 31, 2015 Page 1 of 13

ATTORNEY FOR APPELLANT

David W. Stone, IV

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Wenzel Williams,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

March 31, 2015

Court of Appeals Cause No.

48A05-1407-CR-321

Appeal from the Madison Circuit 

Court

Honorable David A. Happe, Judge

Trial Case No. 48C04-1402-FB-192

Robb, Judge.

Case Summary and Issues

[1] Following a jury trial, Wenzel Williams was convicted of two counts of dealing 

in cocaine, both Class B felonies. He raises four issues on appeal: (1) whether 

the trial court abused its discretion by denying Williams’s motion for 

continuance on the morning of his jury trial; (2) whether the trial court abused 

its discretion by limiting Williams’s cross-examination of the State’s 
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confidential informant; (3) whether the trial court abused its discretion by 

allowing a police officer to testify that he witnessed Williams participate in a 

drug transaction; and (4) whether the State committed prosecutorial misconduct 

during closing argument. Concluding none of Williams’s issues require 

reversal, we affirm. 

Facts and Procedural History

[2] Gayland Swaim began working with the Madison County Drug Task Force as 

a confidential informant in the spring of 2013. In April 2013, Swaim told law 

enforcement that he believed he could purchase crack cocaine from a person 

nicknamed “Bear,” who was later identified as Williams, and the officers 

proceeded to carry out two controlled buys with Williams. 

[3] On April 11, 2013, Swaim called Williams to finalize plans for a drug 

transaction. After searching Swaim and finding no drugs or money, Detective 

Keith Gaskill, acting as an undercover officer, provided Swaim with money and 

drove him to meet Williams. Swaim exited the vehicle and conducted a handto-hand exchange with Williams approximately ten yards away from Detective 

Gaskill. Williams and Swaim then entered Detective Gaskill’s vehicle together, 

and Detective Gaskill drove Williams to a nearby residence. After they 

dropped off Williams, Swaim provided Detective Gaskill with crack cocaine 

purchased from Williams.
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[4] On April 23, 2013, a second controlled buy was arranged between Swaim and 

Williams. Detective Gaskill searched Swaim, provided him with buy money, 

and drove him to meet Williams at the residence where they had dropped off 

Williams after the previous controlled buy. Swaim went inside the residence 

for approximately five minutes and returned to the vehicle along with Williams. 

Detective Gaskill drove to a local barbershop, where Williams left briefly before 

returning to the vehicle and handing his cell phone to Swaim as collateral in 

exchange for the buy money. After getting the money from Swaim, Williams 

again left the vehicle and returned minutes later with a package which he gave 

to Swaim. The package Williams gave Swaim contained cocaine. 

[5] On February 5, 2014, the State charged Williams with two counts of dealing in 

cocaine, both Class B felonies. On February 25, 2014, Williams’s original 

public defender withdrew, and the trial court appointed a new public defender, 

Evan Broderick, to represent Williams. On March 12, 2014, the trial court 

granted Williams a continuance and set a trial date for May 20, 2014. On May 

16, 2014, a hearing was held and the trial was continued due to court 

congestion. The trial date was rescheduled for June 11, 2014, after the trial 

court granted the State’s request to expedite the trial to a first-choice setting on 

that date. 

[6] Williams’s jury trial was set to begin on June 11, 2014, and his defense attorney 

made an oral motion for a continuance that morning. Defense counsel argued 

a continuance was needed for two reasons: (1) the State gave Williams notice 

of an additional witness the day before trial and (2) he wished to depose Swaim
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and felt he had not had adequate time to prepare for trial. The trial court 

excluded the State’s late witness but denied Williams’s motion for continuance, 

and the trial proceeded as scheduled. The jury found Williams guilty of both 

counts, and he was sentenced to sixteen years on each count, to be served 

concurrently, with five years suspended to probation. This appeal followed.

Discussion and Decision

I. Motion for Continuance

[7] First, Williams argues the trial court erred by denying his motion for 

continuance on the morning of his jury trial. If a defendant’s motion for 

continuance is based on the absence of material evidence, absence of a material 

witness, or illness of the defendant, and if certain statutory criteria are met, then 

the defendant is entitled to a continuance as a matter of right. See Ind. Code § 

35-36-7-1; Elmore v. State, 657 N.E.2d 1216, 1218 (Ind. 1995). Here, Williams’s 

motion for continuance did not meet the requirements of Indiana Code section 

35-36-7-1. Therefore, the trial court’s decision to deny his motion for 

continuance is reviewed for an abuse of discretion, and we give great deference 

to the trial court’s ruling. Elmore, 657 N.E.2d at 1218. An abuse of discretion 

may be found where the moving party shows there was good cause for the 

motion and that he was prejudiced by the denial. Stafford v. State, 890 N.E.2d 

744, 750 (Ind. Ct. App. 2008). Continuances to allow time for additional 

preparation are generally disfavored and require a specific showing of how 

additional time would aid counsel. Robinson v. State, 724 N.E.2d 628, 634 (Ind. 
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Ct. App. 2000), trans. denied. Furthermore, “[a] continuance requested for the 

first time on the morning of trial is not favored.” Lewis v. State, 512 N.E.2d 

1092, 1094 (Ind. 1987). 

[8] As an initial matter, we note Williams obtained partial relief when the trial 

court excluded the State’s late witness. Therefore, only Williams’s asserted 

interest in further preparation for cross-examining Swaim could support his 

motion for continuance. Williams argued that he needed to depose Swaim in 

order to uncover evidence necessary to attack Swaim’s credibility; specifically,

Williams wished to discover any “deals” that Swaim had made with the State 

in exchange for acting as a confidential informant. Transcript at 12. 

[9] Swaim’s identity, along with his criminal history, was disclosed to Williams on 

May 19, 2014. From that date until the trial date on June 11, Williams neither 

requested a continuance nor attempted to depose Swaim. Williams focuses on

Swaim’s recent theft conviction, a number of continuances he received in that 

case while acting as an informant for the Madison County Drug Task Force, 

and what he believed to be a lenient plea agreement. However, Williams was 

able to admit into evidence Swaim’s purportedly favorable plea agreement. 

Additionally, he was permitted to impeach Swaim with a multitude of past 

forgery convictions. And as the trial court pointed out, Williams could have 

attempted to schedule a deposition with Swaim prior to the day of trial but did 

not. Therefore, we cannot say that Williams has met his burden of establishing 

he was prejudiced or that the trial court abused its discretion by denying his 

motion for continuance. 
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II. Swaim’s Criminal History & Cross-examination

[10] Second, Williams contends the trial court abused its discretion by prohibiting 

him from impeaching Swaim with the entirety of Swaim’s criminal record. A 

trial court’s ruling to admit or exclude impeachment evidence is reviewed for an 

abuse of discretion. Scalissi v. State, 759 N.E.2d 618, 624 (Ind. 2001). An abuse 

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

and effect of the facts and circumstances. Hale v. State, 976 N.E.2d 119, 123 

(Ind. Ct. App. 2012).

[11] Indiana Evidence Rule 609 governs the use of past convictions for 

impeachment and says that evidence that a witness has been convicted of “(1) 

murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal 

confinement; or (2) a crime involving dishonesty or false statement, including 

perjury” may be used for the purpose of attacking the witness’s credibility. Ind. 

Evidence Rule 609(a). The rule also states that 

if more than ten (10) years have passed since the witness’s conviction 

or release from confinement . . . [it] is admissible only if: (1) its 

probative value, supported by specific facts and circumstances, 

substantially outweighs its prejudicial effect; and (2) the proponent 

gives an adverse party reasonable written notice . . . .

Evid. R. 609(b). 

[12] Swaim’s criminal history includes a laundry list of convictions: theft (2012); 

forgery (2000); forgery (1999); child molesting (1991); possession of marijuana 

(1991); battery; (1990); dealing in marijuana (1985); home invasion (1984); 

dealing in marijuana (1984); and robbery (1987). At trial, the jury was made 
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aware that Swaim had been found guilty of sixteen counts of forgery and that 

he had recently pled guilty to theft as a Class D felony,1 but the trial court did 

not allow Williams to exploit Swaim’s remaining convictions at trial. 

[13] To the extent Williams wished to use Swaim’s past convictions to show his 

dishonesty, the trial court did not abuse its discretion in concluding that the 

excluded convictions—all of which were more than ten years old—were 

inadmissible. Even if some of those convictions fell under Indiana Evidence 

Rule 609(a), their probative value did not substantially outweigh their 

prejudicial effect where Williams was able to impeach Swaim with numerous 

other convictions. 

[14] Williams also argues that in addition to using the convictions for Rule 609 

purposes, Swaim’s entire criminal history was necessary to show bias because 

of deals he was allegedly receiving from the State in exchange for his service as 

a confidential informant. More specifically, Williams argues that Swaim

received a very lenient plea agreement for his recent theft conviction and that 

Swaim’s significant criminal history would highlight the favorableness of his 

plea. Williams relies on our supreme court’s decision in Smith v. State, 721 

N.E.2d 213, 219-20 (Ind. 1999), which held a trial court abused its discretion by 

 

1

 In Indiana, theft is considered a “crime involving dishonesty” under Indiana Rule 609(a). See Rowe v. State, 

704 N.E.2d 1104, 1108 (Ind. Ct. App. 1999), trans. denied. 
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prohibiting the defendant from questioning a witness about his pending charges 

and a possible deal that he had made in exchange for his testimony. 

[15] There is one major difference between this case and the circumstances in Smith: 

that is, Williams was actually allowed to admit evidence of Swaim’s most recent 

plea agreement, while the defendant in Smith could make no reference to a deal 

whatsoever. Williams was free to argue that Swaim received favorable 

treatment and that he had a self-serving interest in working with the State and 

testifying against Williams. After an offer of proof and argument on the issue, 

the trial court concluded that diving into the intricacies of the plea negotiation 

process, sentencing considerations, and the significance of Swaim’s full criminal 

history would create a risk of confusing the jury without providing much added

benefit to Williams. Considering the ways Williams was able to impeach 

Swaim, we find no abuse of discretion in the trial court’s limiting of crossexamination. 

III. Testimony on Ultimate Issue

[16] Third, Williams argues that a State’s witness, Detective Gaskill, was improperly 

allowed to give an opinion concerning Williams’s guilt. Indiana Evidence Rule 

704(b) provides that “[w]itnesses may not testify to opinions concerning intent, 

guilt, or innocence in a criminal case . . . .” 

[17] During the State’s direct examination of Detective Gaskill, the following 

testimony was given:
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[State]: On this occasion, this first occasion, any doubt in your mind 

that what you saw was a drug transaction?

[Williams’s objection overruled.]

[State]: You gave the confidential informant money when he got out 

of the vehicle. Any doubt in your mind that a drug transaction took 

place in front of you?

[Detective Gaskill]: On buy number one (1) on April 11th?

[State]: Yes, sir.

[Detective Gaskill]: No. Having conducted over two hundred and 

fifty (250) of these types of investigations, there’s zero doubt in my 

mind that that was a transaction for cocaine.

Tr. at 316. Williams argues that Detective Gaskill’s testimony is effectively an 

opinion that Williams was guilty of the crime of dealing in cocaine, 

transgressing Indiana Evidence Rule 704(b). We disagree. 

[18] “Rule 704(b) does not prohibit presentation of evidence that leads to an 

inference, even if no witness could state [an] opinion with respect to that 

inference.” Steinberg v. State, 941 N.E.2d 515, 526 (Ind. Ct. App. 2011)

(alteration in original) (quoting 13 Robert L. Miller, Jr., Indiana Practice § 

704.201 at 589 (3d ed. 2007)), trans. denied. In Robles v. State, this court 

considered an appeal of a conviction for operating a vehicle while intoxicated in 

which a law enforcement officer testified that the defendant was “intoxicated.” 

705 N.E.2d 183, 186 (Ind. Ct. App. 1998). We held that there was no violation 

of Rule 704(b) because the officers were testifying as to their personal 

observations, not whether the defendant was guilty or innocent of the charged 

offense. Id. We find Robles analogous to this case. Detective Gaskill testified 

to his belief that he personally observed a drug transaction occur in front of his 
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eyes. While this certainly leads to an inference of guilt, it does not run afoul of 

Rule 704(b). 

IV. Prosecutorial Misconduct

[19] Finally, Williams contends that the State, in closing argument, committed 

prosecutorial misconduct and deprived him of a fair trial. Specifically, he 

argues that the State’s declaration that drugs are a serious problem was an 

attempt to persuade the jury to convict Williams for a reason other than guilt. 

[20] When reviewing a claim of prosecutorial misconduct that was properly raised 

before the trial court, we must determine “(1) whether misconduct occurred, 

and if so, (2) whether the misconduct, under all of the circumstances, placed the 

defendant in a position of grave peril to which he or she would not have been 

subjected otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citation and 

quotation marks omitted). Whether misconduct has occurred is decided by 

reference to case law and the Rules of Professional Conduct. Id. “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. (emphasis in 

original) (citation omitted). 

[21] Williams’s claim of prosecutorial misconduct stems from the following 

statements made by the prosecutor during closing argument: 

[State]: . . . When we talked about [sic] in jury selection someone said 

that there’s a drug problem in Anderson. Yeah, there is. 

[Defense]: Judge, I’m going to object. Call to duty argument.
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[Court]: Approach

[SIDEBAR]

[Court]: Objection overruled. Proceed.

[State]: Drugs are a big deal. They’re a big deal. And when he throws 

around loosely the fact that, oh, his client may be an addict but he 

didn’t . . . he didn’t deal, he didn’t deliver, again, I don’t know how he 

says it with a straight face cause [sic] you saw it happen. He wants 

you to think that it’s not a big deal, but it is. It is. So, please, when 

you retire back there, look to the Judge’s instructions, follow the law 

that you’ve been given, apply the law to the facts, do your duty and 

find him guilty. Thank you.

Tr. at 393. 

[22] As an initial matter, the State asserts that Williams failed to preserve his claim

of prosecutorial misconduct. The State cites Delarosa v. State, which declares 

that “[t]o preserve a claim of prosecutorial misconduct, a defendant must object 

and request an admonishment. If the defendant is not satisfied with the 

admonishment, the defendant must move for a new trial.” 938 N.E.2d 690, 696 

(Ind. 2010); accord Ryan, 9 N.E.3d at 667. Because Williams did not seek an 

admonishment or a mistrial, the State believes Williams’s claim is forfeited. 

We cannot agree. Williams did object to the prosecutor’s statement during 

closing argument, and the trial court overruled that objection. It makes 

absolutely no sense for the State to say a defendant must request an 

admonishment and a mistrial after having been told by the trial court that no 

misconduct occurred. Statements in Delarosa and Ryan that requests for an 

admonishment and a mistrial are necessary to preserve a claim of prosecutorial 

misconduct presuppose that an objection is sustained and the trial court would 

actually have entertained a request for an admonishment. Put simply, 
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Williams’s overruled objection is sufficient to preserve his prosecutorial 

misconduct claim.

[23] “It is misconduct for a prosecutor to request the jury to convict a defendant for 

any reason other than his guilt.” Coleman v. State, 750 N.E.2d 370, 375 (Ind. 

2001) (citation omitted). Williams contends that the prosecutor’s comments in 

closing argument were an invitation for the jury to convict in order to combat 

the community’s drug problem, rather than because Williams was guilty of the 

crime of dealing in cocaine. Indeed, an argument that “the jury owes it to the 

community” to find a defendant guilty amounts to prosecutorial misconduct. 

See Woods v. State, 547 N.E.2d 772, 781-82 (Ind. 1989), cert. denied, 501 U.S. 

1259 (1991), abrogated on other grounds by Richardson v. State, 717 N.E.2d 32 (Ind. 

1999). 

[24] The State responds that the prosecutor’s comments were in response to an 

implicit request by defense counsel for jury nullification. The State argues 

defense counsel’s characterization of Williams as merely an “addict,” tr. at 390,

was an attempt to downplay his conduct and suggest that a small-time drug deal 

did not warrant punishment. In the State’s view, the prosecutor’s remark that 

“[d]rugs are a big deal” and “[defense counsel] throws around loosely the fact 

that, oh, his client may be an addict but he didn’t . . . he didn’t deal” was a

reaction to argument by defense counsel. Id. at 393. “Prosecutors are entitled 

to respond to allegations and inferences raised by the defense even if the 

prosecutor’s response would otherwise be objectionable.” Ryan, 9 N.E.3d at 
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669 (citation omitted). Under the circumstances of this case, we hold that the

prosecutor’s statements do not constitute reversible error. 

Conclusion

[25] We conclude the trial court did not abuse its discretion by denying Williams’s 

motion for continuance, limiting cross-examination of Swaim, or allowing a 

witness to testify that he saw a drug transaction. Further, William’s alleged 

prosecutorial misconduct claim does not constitute reversible error. 

[26] Affirmed. 

Bailey, J., and Brown, J., concur.