ROBB, J.
Ashworth argues the trial court improperly admitted opinion evidence from Detective Rogers regarding Rogers’s elimination of two individuals as suspects. This court reviews the trial court’s decision to admit evidence for an abuse of discretion. Pickens v. State, 764 N.E.2d 295, 297 (Ind. Ct. App. 2002), trans. denied. An abuse of discretion occurs when the trial court’s ruling is clearly against the logic and effect of the facts and circumstances before the court. Id.
During direct examination, the prosecutor asked Detective Rogers his opinion regarding whether two individuals, Clayton Drayden and Andrew Broyles, [footnote omitted] had any “involvement” in Summers’s murder. Tr. at 457. Ashworth’s counsel objected and received permission to ask a preliminary question, during which the following exchange occurred:
Q You said there was an investigation as to [Drayden’s and Broyles’s] involvement, was that investigation by you?
A Partially, yes.
Q Okay. Is your opinion based upon in part [on] what others did?
A Yes. Id. at 458.
Ashworth’s counsel then renewed his objection on the ground that Detective Rogers’s opinion would be “based on the conduct of [an investigation] he didn’t participate in” (that is, the “file” from Detective Cooper’s investigation, which included Detective Cooper’s notes and witness statements, id. at 445), but the trial court overruled the objection, reasoning that because Detective Rogers at least partially participated in the investigation (he testified he conducted some independent investigation, but did not specify what that entailed, see id.), his opinion regarding the involvement of Broyles and Drayden “goes to the weight of his opinion” and not its admissibility, id. at 458. Detective Rogers then opined that Drayden and Broyles “had absolutely nothing to do with this crime” because they provided inaccurate details about it. Id.
A. Witness “Perception” and Indiana Evidence Rule 701
Ashworth argues the trial court abused its discretion when it allowed Detective Rogers to render this opinion because it was based in part on hearsay. [1] Ashworth’s argument invokes Indiana Evidence Rule 701, which limits lay opinion testimony such as Detective Rogers’s to opinions that 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 in issue.” Our supreme court has defined “perception” within the meaning of Rule 701 as “the process, act, or faculty of perceiving . . . . insight, intuition, or knowledge gained by perceiving,” and its verb form (i.e., “perceive”) as “to become aware of directly through any of the senses, esp. sight or hearing.” Kubsch v. State, 784 N.E.2d 905, 922 (Ind. 2003) (citations omitted); see also 13 Robert Lowell Miller, Jr., Indiana Practice, Indiana Evidence § 701.102 at 399 (indicating that “perception” within the meaning of Rule 701 means “the facts on which the opinion is based must be within the witness’s personal knowledge”).
Because the record is unclear regarding the extent to which Detective Rogers’s opinion is based on his own investigation, it is difficult to determine whether the opinion is based on his “perception” within the meaning of Rule 701(b). The opinion testimony would be inadmissible if, for example, Detective Rogers conceded it was based on a discussion with Detective Cooper during which Detective Cooper stated his belief that Drayden and Broyles had nothing to do with the murder. Under such circumstances, Detective Rogers’s opinion is merely a reiteration of Detective Cooper’s and plainly not one based on his perception. If, on the other hand, Detective Cooper testified he based his opinion on interviews with Drayden and Broyles and a comparison of their explanations of the murder with evidence recovered from the crime scene, the opinion may be more accurately described as based on facts Detective Rogers perceived.
Although our research has not disclosed an Indiana case directly addressing whether opinion testimony that is based in part on an investigation conducted by someone other than the testifying officer is within the officer’s perception, at least one decision has addressed the issue in the context of Federal Rule of Evidence 701.4 In United States v. Garcia, 413 F.3d 201, 209-10 (2d Cir. 2005), a DEA agent was permitted to testify over the defendant’s objections that in his opinion the defendant was involved in a cocaine distribution ring. Noting that the agent’s testimony regarding the basis for his opinion was laden with “information gathered by various persons in the course of an investigation,” the court reasoned such an opinion could not accurately be described as based on the agent’s personal perception. 413 F.3d at 213. As such, the court concluded the agent’s opinion testimony was inadmissible under Federal Rule 701. Id.
B. Harmless Error
The Second Circuit’s opinion in Garcia supports interpreting “perception” within the meaning of Indiana Evidence Rule 701 as excluding officer opinion testimony that is based in part on a colleague’s investigation. Nevertheless, we need not resolve this issue because even if the trial court improperly admitted Detective Rogers’s opinion testimony, the resulting error was harmless.
CRONE, J., and BROWN, J., concur.
[1] We note as an aside that Detective Rogers’s opinion that Drayden and Broyles “had absolutely nothing to do with this crime” is a straightforward violation of the rule prohibiting opinion testimony regarding an individual’s guilt or innocence in a criminal case. See Ind. Evid. Rule 704(b); Taylor v. State, 689 N.E.2d 699, 706 (Ind. 1997). This was not the only instance the rule was violated. See Tr. at 456 (questioning Detective Rogers: “Q In your analysis of [this] case, did you – or do you also believe David Ashworth to have been involved with respect to this particular homicide? A Yes, I do.”). Ashworth, however, did not object to either violation at trial and does not argue on appeal that these violations require reversal, and this court cannot reverse on grounds not argued by the appellant unless the violations constitute fundamental error. See Wilke v. State, 496 N.E.2d 616, 619 (Ind. Ct. App. 1986). Because we conclude below that any error in admitting Detective Rogers’s opinion testimony was harmless, see infra, Part I.B., it follows that any error also was not fundamental, see Monegan v. State, 721 N.E.2d 243, 255 (Ind. 1999).