FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

HILARY BOWE OAKES    JEFFREY A. MODISETT
Indianapolis, Indiana    Attorney General of Indiana

             RANDI E. FROUG
            Deputy Attorney General
            Indianapolis, Indiana

TYRONE O'NEAL,                 )
                                    )
    Appellant-Defendant,            )
                                    )
        vs.                         )    No. 49A04-9811-CR-570
                                    )
STATE OF INDIANA,                   )
                                    )
    Appellee-Plaintiff.             )

man "was about to go into convulsions" and "extremely nervous" himself, Officer Horn asked the backseat passenger to step out of the car and patted him down. Officer Horn found a bag of marijuana in the passenger's back pants pocket and tossed the bag onto the trunk of the car; he then noticed that O'Neal, who was sitting next to the driver, had shoved a clear plastic bag into his pants and had cracked open the passenger-side door. Officer Horn walked to the passenger side of the vehicle, whereupon O'Neal jumped out of the car and fled across Arlington Avenue onto 30th Street with a small automatic pistol in his hand. Officer Horn left the scene of the traffic stop and chased after O'Neal on foot.
    During the pursuit, O'Neal stopped beside a parked car, and Officer Horn halted on the opposite side of the car. After Officer Horn unsuccessfully attempted to subdue him with chemical spray, O'Neal raised his handgun and pointed it at the officer. Officer Horn ducked behind the car, pulled out his handgun, and ordered O'Neal to drop his weapon. Instead, O'Neal ran up the street and darted between two houses, where Officer Horn saw him remove the clear plastic bag from his pants and toss it next to a garage. O'Neal stopped in front of a privacy fence, threw his handgun over the fence, and was then knocked down, sprayed, and handcuffed by Officer Horn. Incident to O'Neal's arrest, Officer Horn searched his person and found $1,128 in cash, the majority of which consisted of $20 bills. IPD officers later recovered O'Neal's handgun and the clear plastic bag he had discarded during the chase; the bag contained what was later determined to be approximately 66 grams of crack cocaine, a paper towel, and approximately 10 smaller clear plastic bags.

items that, if not ready for packaging, could quickly be gotten ready for packaging, so I am going to enter judgment of conviction on the dealing as a Class A felony.

    The trial court sentenced O'Neal to 20 years' imprisonment (executed) on Count I, enhanced by five years (suspended) for the use of a handgun; one and one-half years on Count III, to be served concurrently with the sentence for Count I; one and one-half years on Count IV, to be served concurrently; and one year on Count V, to be served concurrently. O'Neal was also sentenced to three years' probation. The abstract of judgment form reflects that the trial court merged O'Neal's conviction for Count II (possession of cocaine) with his conviction for Count I (dealing in cocaine), and that he was not sentenced for his conviction for Count II. O'Neal now appeals his conviction for possession of cocaine with intent to deliver as a Class A felony.

prevarications were only a "factor" in its evaluation of his credibility, and the evidence adduced at trial was sufficient to sustain his conviction notwithstanding any error committed by the trial court.
    The facts of the instant case present us with a unique challenge in approaching our review. In the usual course of events, a defendant must make a timely objection to the allegedly erroneous admission of evidence submitted by the State to preserve the error for appeal. See, e.g., Sturma v. State, 683 N.E.2d 606, 608 (Ind. Ct. App. 1997). With respect to a bench trial, O'Neal correctly observes that
    it is considered that the trial judge when sitting as the finder of fact will ignore incompetent evidence tendered by the parties in arriving at his determination. Clearly, such a presumption cannot logically obtain where the judge himself solicits the incompetent evidence or otherwise causes it to be brought before the court.

McDonald v. State, 164 Ind. App. 285, 294-295, 328 N.E.2d 436, 442 (1975). Although we recognize that the trial court in the case at bar did not solicit or cause inadmissible evidence to be brought before it, it did voluntarily state that it had considered the veracity of O'Neal's pretrial statements in judging his credibility at trial. Because of the unusual circumstances surrounding the alleged error, we cannot reasonably conclude that O'Neal's assertion of error must be waived because he failed to object at the sentencing hearing.See footnote 7

(1969).See footnote 9 Consequently, we cannot say that the trial court committed fundamental error in considering O'Neal's pretrial statements as a factor in assessing his credibility; moreover, any error must be considered harmless in light of the overwhelming evidence of his guilt.

witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue." The requirement that the opinion be "rationally based" on perception "means simply that the opinion must be one that a reasonable person normally could form from the perceived facts." [Miller] at 195. The requirement that the opinion be "helpful" means, in part, that the testimony gives substance to facts which were difficult to articulate. Id. at 196.

687 N.E.2d at 380.
    "The admission of opinion testimony is within the discretion of the trial court." Hanson v. State, 704 N.E.2d 152, 155 (Ind. Ct. App. 1999); Mariscal, 687 N.E.2d at 380. As the State established during direct examination, Officer Horn had served as an IPD patrolman for five years and had made hundreds of arrests related to the use of crack cocaine. Officer Horn amply demonstrated his familiarity with "street" drug terminology, the means of ingesting crack cocaine, and various methods of packaging the drug. Although Officer Horn's experience and training may not be sufficiently comprehensive to qualify him as an expert witness under Evid. R. 702, we conclude that he was sufficiently qualified as a skilled witness under Evid. R. 701 to offer his rationally based and helpful opinion on the issue of O'Neal's intent to deal crack cocaine.See footnote 10 Consequently, O'Neal's arguments regarding the qualifications of expert witnesses must fail, and we find that the trial court did not abuse its discretion in admitting Officer Horn's testimony on the issue of intent.

on other grounds, 685 N.E.2d 698 (Ind. 1997) (jury could infer intent to deal from evidence that "defendant was in constructive possession of an amount of cocaine greater than that ordinarily carried by an individual user and that the [4.28 grams of] cocaine was packaged for sale" in a medicine bottle and a plastic bag "and sorted according to price and size"); Berry v. State, 574 N.E.2d 960, 963 (Ind. Ct. App. 1991), trans. denied ("Circumstantial evidence showing possession with intent to deliver may support a conviction.. The more narcotics a person possesses, the stronger the inference that he intended to deliver it and not consume it personally.").
    "Evidence of the illegal possession of a relatively large quantity of drugs is sufficient to sustain a conviction for possession with intent to deliver." Hazzard, 642 N.E.2d at 1369- 1370. O'Neal claims that his "very heavy" cocaine habit and the fact that he twice tested positive for cocaine while on pretrial release should persuade this Court that his possession of 66 grams of cocaine for personal use "was not unbelievable."See footnote 11 Not only did O'Neal's girlfriend testify that she never saw him use cocaine, but he also did not possess any means of ingesting the cocaine at the time of his arrest. See Berry, 574 N.E.2d at 963 (defendant possessed large quantity of dilaudid tablets and "many small plastic bags and twist ties," but no paraphernalia for ingestion of narcotics at time of arrest; State presented "ample evidence to support the inference" of defendant's intent to deal narcotics). O'Neal also attempts to offer plausible explanations for his possession of a handgun and $1,128 in cash, but we will

not invade the province of the trial court as the finder of fact by reweighing the evidence or judging the credibility of witnesses. See id.; McClendon v. State, 671 N.E.2d 486, 488 (Ind. Ct. App. 1996) ("The trier of fact is free to believe or disbelieve witnesses, as it sees fit [citation omitted].").

    So long as a judge remains open minded enough to refrain from finally deciding a case until all the evidence has been presented, comments made by the judge during the course of the proceedings will generally not be considered as indicative of disqualifying bias or prejudice [footnote omitted ("[.]")]. It has been said that the traditional judicial view is that if a judge can be disqualified for bias following a comment or ruling during the court proceedings, there is no limit to disqualification motions and there would be a return to judge shopping[.] The general rule of law is that what a judge learns in his or her judicial capacity is a proper basis for judicial observations and the use of such information should not result in disqualification[.] Thus mere criticism of a party or his attorney does not indicate prejudice[.] But, when a judge's remarks are so extreme that they show that his decision has been predetermined, improper bias or prejudice will be found to exist[.]

We do not find that the trial court's comments in the case at bar were sufficiently "extreme" to warrant the reversal of the its judgment.

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