Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019 Page 1 of 10

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.

ATTORNEYS FOR APPELLANT

Valerie Boots

Marion County Public Defender Agency

Susan D. Rayl

Smith Rayl Law 

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. MacKenzie

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Zechariah Brian James,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 22, 2019

Court of Appeals Case No.

18A-CR-1086

Appeal from the Marion Superior 

Court

The Honorable Alicia Gooden, 

Judge

Trial Court Cause No.

49G21-1607-F2-026238

Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019 Page 2 of 10

Statement of the Case

[1] Zechariah James appeals from his conviction of one count of dealing in a 

narcotic drug1as a Level 2 felony, contending that the trial court abused its 

discretion or committed fundamental error by allowing an officer to testify as a 

skilled witness during his bench trial. We affirm.

Issue

[2] The sole issue presented for appeal is as follows: whether the trial court erred in 

allowing a detective with more than twenty years of experience in law 

enforcement, including supervising undercover narcotics purchases, to testify as 

a skilled witness.

Facts and Procedural History

[3] On the afternoon of July 6, 2016, Indianapolis Metropolitan Police Department 

Detectives Michael Condon and Gabriel Cuevas went to America’s Best Value 

Inn with an active warrant to arrest James for murder. Prior to arriving at that 

location, the officers were alerted that James had exited the east side of the 

building and had entered a vehicle.

[4] Law enforcement officers approached James, who was sitting in the front 

passenger seat of the vehicle and arrested him without incident pursuant to the 

warrant. The officers performed a search incident to arrest that resulted in the 

 

1

Ind. Code § 35-48-4-1(e)(1) (2016). 
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seizure of approximately fifty-five grams of heroin located in the left front 

pocket of James’ pants. The heroin had been packaged in knotted plastic 

baggies and was divided into quantities of 41.45 grams, 10.46 grams, 1.17 

grams, and .52 grams and placed in a larger plastic bag. During that search, 

officers also seized approximately $2,800 in cash that was folded and wrapped 

with a rubber band, identification cards, and cell phones. There were no items 

of paraphernalia recovered as part of the search. 

[5] On July 8, 2016, James was charged with dealing in a narcotic drug and 

possession of a narcotic drug, and was alleged to be an habitual offender. A 

bifurcated bench trial took place on April 6 and April 9, 2018. During the 

bench trial, Detectives Condon and Cuevas testified about their experience with 

encountering narcotics during investigations. A forensic scientist from the 

Marion County Crime Lab testified about his findings and report after testing, 

identifying, and weighing the heroin submitted for his review in this case.2 

James was convicted of dealing in a narcotic drug and possession of a narcotic 

drug.3 The trial court sentenced James to eighteen years in the Department of 

Correction for dealing in a narcotic drug. James now appeals. 

 

2 Marijuana was also found, tested, and identified. The State, however, dismissed all charges related to the 

marijuana that was seized.

3 The State dismissed the habitual offender enhancement during the trial.
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Discussion and Decision

[6] James argues that the trial court abused its discretion by allowing Detective 

Condon to testify as a skilled witness that James’ possession of that quantity of 

heroin and cash was consistent with amounts possessed by heroin dealers. 

James argues in the alternative that if Detective Condon’s continued testimony 

as a skilled witness, despite James’ objections, is considered to be a waiver of 

the argument, the error was nonetheless fundamental error. In either event, 

James urges this Court to reduce his conviction to possession of a narcotic drug 

for which he should be resentenced by this Court or the trial court. 

[7] A trial court has broad discretion in ruling on the admissibility of evidence. 

Dycus v. State, 108 N.E.3d 301, 303 (Ind. 2018). Ordinarily, a reviewing court 

will disturb a trial court’s rulings on the admissibility of evidence only where it 

has abused its discretion. Id. A trial court abuses its discretion if its decision is 

clearly against the logic and effect of the facts and circumstances before it, or if 

it misapplies the law. Id.

[8] In Kubsch v. State, 784 N.E.2d 905, 922 (Ind. 2003), the Supreme Court stated 

the following about skilled and expert witnesses:

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’), . . .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.’ 
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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.’

(internal citations omitted). Perception and perceive have been defined, 

respectively, as “the process, act, or faculty of perceiving. . . .insight, intuition, 

or knowledge gained by perceiving,” and “to become aware of directly through 

any of the senses,” especially sight or hearing. Id. The Supreme Court 

concluded the officer’s testimony should not have been admitted in Kubsch

because it was not rationally based upon his perceptions at the scene of the 

crime. 

[9] In Davis v. State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003), trans. denied, the 

condition that a skilled witness’s opinion be rationally based was defined as 

meaning that “the opinion must be one that a reasonable person could normally 

form from the perceived facts.” For an opinion to be helpful, it means in 

pertinent part that “the testimony gives substance to facts, which are difficult to 

articulate.” Id. at 269. The officer’s testimony in Davis was properly admitted 

because the State had laid an appropriate foundation supporting the officer’s 

training and expertise for his opinion about what someone possessing a package 

of that quantity of narcotics would intend to do with the substance. Id. 

[10] At the time of his testimony, Detective Condon had worked in law enforcement 

for twenty years and had worked for IMPD for sixteen of those twenty years. 

As a detective with the IMPD violent crimes unit Condon had been involved in 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1086 | January 22, 2019 Page 6 of 10

controlled purchases of heroin, using either an undercover detective or a 

confidential informant for those purchases. He testified that the undercover 

officers or informants would purchase one or two grams of heroin for the 

purchase price of anywhere from $60 to $250. He further testified that heroin 

that is purchased as one or two grams is usually packaged in aluminum tinfoil. 

He identified the paraphernalia frequently used by addicts to ingest heroin and 

also testified about the physical signs exhibited by heroin addicts. 

[11] Detective Condon added that confidential informants or undercover detectives 

will purchase drugs from a target three to four times a week in part to build a 

rapport with the dealer. Dealers do not find it unusual for addicts to purchase 

the same amount several times during the week. He also stated that users 

generally do not have enough money to buy a bulk amount of narcotics and if 

they did buy a large amount they would likely overdose.

[12] Condon testified that unlike users, dealers he has arrested will be in possession 

of ten or more ounces of a narcotic, with an ounce being approximately twentyeight grams. In general, dealers he had arrested were not also in possession of 

paraphernalia. 

[13] On cross-examination, Detective Condon testified that although he was a 

detective in the violent crimes unit and had never been a narcotics detective, he 

had attended narcotics detective school and undercover detective school in 

addition to training sessions provided by the law enforcement academy. He 
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testified that he had also been involved in executing search warrants on the 

homes of drug dealers. 

[14] The following are the three objections made by James’ counsel during Detective 

Condon’s testimony and the trial court’s rulings on the same:

Q: - - I guess generally speaking what is heroin?

A: Heroin is a narcotic that is extremely, highly addictive -

[Defense counsel]: Objection judge[.] [A]t this point [what] he 

says [is] fine as to what the specific drug is, saying he’s testifying 

about his experience with [the] drug[.] [B]ut he’s not a chemist[.] 

[H]e’s not a Doctor[.] I don’t know that he’s laid a proper

foundation to testify as to what heroin is, and what the effects of 

it may be or anything along those lines.

[The Court]: I’ll sustain [the objection] as to the detective’s last 

comment maybe be [sic] - - his expertise not in the technical 

sense but based on his training experience there might be a [sic], 

more for the foundation later[,] but at this point I’ll sustain the 

objection.

* * * *

Q: When somebody is purchasing the 60s had [sic] to $200 range 

of heroin how often are they going to see their heroin dealer?

[Defense counsel]: Objection judge[.] I think that goes beyond 

his personal knowledge and is also speculation.

[The Court]: Why don’t you rephrase.

* * * *
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Q: Let’s talk about heroin dealers now[.] [A]re they typically 

using their own product?

A: Typically[,] no.

Q: Why don’t you often come across heroin users or heroin 

dealers who are also users?

A: - - number one they’d never be successful because they will be 

using their own product and -

[Defense counsel]: Objection judge[.] I think this goes into sort 

of opinion testimony that’s not really backed up by any kind of 

foundation that this person is expert on you know heroin dealers. 

He’s a violent crimes detective[.] [H]e’s been a violent crimes 

detective his entire detective career[.] [T]o my knowledge she’s 

[sic] never been a narcotics detective[.] I don’t [know] what 

special training he has in narcotics[.] I appreciate that he has 

been involved in some undercover buys[,] but at this point I think 

his testimony is going onto just basically his own personal 

opinion.

[The Court]: Perhaps [the State,] and understand again [this is 

being] tried to the court as opposed to a jury, but perhaps a 

further expansion on his training experience in narcotics offenses 

may be helpful. I will find that you know assuming that can be 

established of this detective will be operating as a skilled witness,

not an expert witness[.] [S]ome witnesses are allowed to render 

opinions based on their experience so.

[The State]: Thank you judge.

Tr. Vol. II, pp. 57-62. 

[15] We do not find that the argument has been waived. James’ counsel objected to 

testimony that would require speculation and argued to limit Detective 
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Condon’s testimony to opinions rationally based on his perceptions and 

experience. Even so, Detective Condon demonstrated a degree of knowledge 

beyond that of ordinary jurors, and his testimony met the requirements of Rule 

701. The trial court did not abuse its discretion by allowing Detective Condon 

to testify as a skilled witness. 

[16] Further, even if the argument had been waived, the admission of Detective 

Condon’s testimony does not amount to fundamental error, an extremely 

narrow exception to the waiver rule. James has not established that the alleged 

errors were so prejudicial to his rights such that he was denied a fair trial. See 

Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (fundamental error is narrow 

exception to waiver rule where defendant bears burden of showing errors so 

prejudicial to his rights that fair trial is impossible).

[17] Ryan Farrell, a forensic scientist in the Marion County Crime Lab, testified 

about his findings and report after testing, identifying, and weighing the heroin 

submitted for his review in this case. He testified without objection to the 

identification of the substance and the amounts contained in each of the 

separate bags. Detective Condon testified without objection to the amount of 

heroin generally purchased by users or addicts and amounts of heroin generally 

possessed by drug dealers. Assuming for the sake of argument that the issue 

was waived, James has not met his burden of establishing fundamental error.
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Conclusion

[18] For the reasons stated above, the trial court did not abuse its discretion in 

admitting the testimony of a skilled witness.

[19] Affirmed.

Bailey, J., and Crone, J., concur.