OPINION
MAY, Judge.
Max Koenig was convicted of dealing in a schedule II controlled substance, a Class B felony,
after a jury trial in which the court erroneously admitted a lab report because the State's supporting witness was not the individual who performed the test or prepared the report. The error was harmless, however, because there was sufficient admissible evidence to support the conviction. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
On April 7, 2006, Koenig visited the home of a friend, Josh Harbin. The two were drinking and taking prescription pills. Koenig gave Harbin several different pills, including methadone. Koenig told Harbin he usually took two methadone pills, but Harbin ingested five. Harbin became drowsy, and he asked Koenig to write down the pills Koenig had given him. Koenig gave Harbin a list of pills before he left. Harbin was found dead the next morning. A blood test revealed methadone in Harbin's system.
DISCUSSION AND DECISION
The lab test showing there was methadone in Harbin's blood should not have been admitted. In Melendes-Diaz v. Massachusetts, - U.S. -, 129 S.Ct. 2527, 2531, 174 L.Ed. 2d 814 (2009), the Supreme Court held a lab report prepared for use in a criminal prosecution is an affidavit that falls within the "core class" of testimonial statements covered by the Confrontation Clause. Therefore, a defendant's Sixth Amendment right is violated when the defendant is not allowed to confront the person who created the lab report used at his trial.
Id. In Jackson v. State, 891 N.E.2d 657, 661 (Ind.Ct.App. 2008), we had already reached the same result the Supreme Court reached in Melendez-Diaz: we held a certificate of analysis used to prove an element of charged
crime was a testimonial statement, so its admission into evidence without the testimony of the lab technician who prepared it violated the Sixth Amendment right to confront witnesses.
The State does not, and we think cannot, argue the challenged report in the case before us was admissible. The report was testimonial and the State did not call as a witness the person who prepared it. The report should not have been admitted with the support of only the coroner's testimonys.
See Jackson, 891 N.E.2d at 662 (a certificate of analysis showing the substance police found in Jackson's car was cocaine was testimonial and its admission without the testimony of the lab technician who prepared it was error).
Instead, the State argues Koenig should not be allowed to challenge the erroneous admission of the lab report because he waived his allegation of error on appeal by objecting at trial on different grounds. Koenig objected on unspecified hearsay and foundational grounds. The extent of the discussion was:
BY [Koenig's Counsell: Judge I am going to objection [sic] based upon here say [sic] and lack of foundation.
BY [The State]: Your Honor [the Coroner] has testified he received it in his job as the elected Coroner of Knox County Indiana. Uh as course [sic] of his duties from the draw on Josh Harbin and he is the custodian of the records of his office in which this is the file.
BY THE COURT: Objection overruled. The Court will admit State's Exhibit 4 into evidence.
(Tr. at 445-46.)
It is true that in some instances a party's failure to allege specific errors and present such errors before the trial court may result in a waiver of those errors on appeal. See U.S. Fidelity & Guar. Co. v. DeFluiter, 456 NE.2d 429, 431 (Ind.Ct.App.1983). However, we prefer to decide cases on their merits when possible, Masonic Temple Ass'n of Crawfordsville v. Indiana Farmers Mutual Ins. Co., 837 N.E.2d 1032, 1036 (Ind.Ct.App.2005), reh'g denied, and we decline the State's invitation to find Koenig may not challenge the plainly erroneous admission of the lab report.
The State relies on Small v. State, 736 N.E.2d 742, 747 (Ind.2000), but Small does not preclude Koenig's challenge. At trial, a police officer began to testify about contact he had with Small's co-defendant. Small objected on the ground the testimony was inadmissible hearsay that did not fall within the exceptions of either Ind. Evid. R. 801(d)(2) or 803(8).
On appeal Small argued his constitutional right to confront witnesses was violated because he was not able to cross-examine his co-defendant regarding the statement the co-defen
dant made to the officer. The Court noted a defendant may not raise one ground for objection at trial and argue a different ground on appeal and found the claim of error waived. Id. at 747.
Small argued at trial that because an officer's testimony was based on police ree-ords, it should have been excluded pursuant to Indiana Evidence Rule 803(8), the hearsay exception for public records and reports. But our Supreme Court noted the State did not admit any police records or investigative reports-instead, it relied solely on the officer's testimony. The trial court therefore did not abuse its discretion in allowing the testimony. Id. at 747 n. 10.
Koenig's hearsay and foundational objection was sufficient to preserve the Confrontation Clause argument he now raises.
Our Supreme Court has noted the close relationship between hearsay and confrontation: "Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 LEd.2d 177 (2004) ] makes clear that in a criminal prosecution any hearsay permitted under the rules of evidence is also subject to the defendant's right 'to be confronted with the witnesses against him' under the Sixth Amendment to the United States Constitution." Hammon v. State, 829 N.E.2d 444, 449 (Ind.2005), rev'd and remanded on other grounds by Davis v. Washington, 547 U.S. 813, 824, 126 S.Ct. 2266, 165 LEd.2d 224 (2006). The Confrontation Clause applies only to testimonial hearsay. Davis, 547 U.S. at 824, 126 S.Ct. 2266. Hearsay rules and the Confrontation Clause are "generally designed to protect similar values" and they "stem from the same roots." White v. Illinois, 502 U.S. 346, 353, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992).
The Confrontation Clause is violated when hearsay evidence is admitted as substantive evidence against a defendant with no opportunity to cross-examine the hearsay declarant at trial. Kentucky v. Stincer, 482 U.S. 730, 737, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). In Giles v. Califoria, -- U.S. --, 128 S.Ct.
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OPINION
MAY, Judge.
Max Koenig was convicted of dealing in a schedule II controlled substance, a Class B felony,
after a jury trial in which the court erroneously admitted a lab report because the State's supporting witness was not the individual who performed the test or prepared the report. The error was harmless, however, because there was sufficient admissible evidence to support the conviction. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
On April 7, 2006, Koenig visited the home of a friend, Josh Harbin. The two were drinking and taking prescription pills. Koenig gave Harbin several different pills, including methadone. Koenig told Harbin he usually took two methadone pills, but Harbin ingested five. Harbin became drowsy, and he asked Koenig to write down the pills Koenig had given him. Koenig gave Harbin a list of pills before he left. Harbin was found dead the next morning. A blood test revealed methadone in Harbin's system.
DISCUSSION AND DECISION
The lab test showing there was methadone in Harbin's blood should not have been admitted. In Melendes-Diaz v. Massachusetts, - U.S. -, 129 S.Ct. 2527, 2531, 174 L.Ed. 2d 814 (2009), the Supreme Court held a lab report prepared for use in a criminal prosecution is an affidavit that falls within the "core class" of testimonial statements covered by the Confrontation Clause. Therefore, a defendant's Sixth Amendment right is violated when the defendant is not allowed to confront the person who created the lab report used at his trial.
Id. In Jackson v. State, 891 N.E.2d 657, 661 (Ind.Ct.App. 2008), we had already reached the same result the Supreme Court reached in Melendez-Diaz: we held a certificate of analysis used to prove an element of charged
crime was a testimonial statement, so its admission into evidence without the testimony of the lab technician who prepared it violated the Sixth Amendment right to confront witnesses.
The State does not, and we think cannot, argue the challenged report in the case before us was admissible. The report was testimonial and the State did not call as a witness the person who prepared it. The report should not have been admitted with the support of only the coroner's testimonys.
See Jackson, 891 N.E.2d at 662 (a certificate of analysis showing the substance police found in Jackson's car was cocaine was testimonial and its admission without the testimony of the lab technician who prepared it was error).
Instead, the State argues Koenig should not be allowed to challenge the erroneous admission of the lab report because he waived his allegation of error on appeal by objecting at trial on different grounds. Koenig objected on unspecified hearsay and foundational grounds. The extent of the discussion was:
BY [Koenig's Counsell: Judge I am going to objection [sic] based upon here say [sic] and lack of foundation.
BY [The State]: Your Honor [the Coroner] has testified he received it in his job as the elected Coroner of Knox County Indiana. Uh as course [sic] of his duties from the draw on Josh Harbin and he is the custodian of the records of his office in which this is the file.
BY THE COURT: Objection overruled. The Court will admit State's Exhibit 4 into evidence.
(Tr. at 445-46.)
It is true that in some instances a party's failure to allege specific errors and present such errors before the trial court may result in a waiver of those errors on appeal. See U.S. Fidelity & Guar. Co. v. DeFluiter, 456 NE.2d 429, 431 (Ind.Ct.App.1983). However, we prefer to decide cases on their merits when possible, Masonic Temple Ass'n of Crawfordsville v. Indiana Farmers Mutual Ins. Co., 837 N.E.2d 1032, 1036 (Ind.Ct.App.2005), reh'g denied, and we decline the State's invitation to find Koenig may not challenge the plainly erroneous admission of the lab report.
The State relies on Small v. State, 736 N.E.2d 742, 747 (Ind.2000), but Small does not preclude Koenig's challenge. At trial, a police officer began to testify about contact he had with Small's co-defendant. Small objected on the ground the testimony was inadmissible hearsay that did not fall within the exceptions of either Ind. Evid. R. 801(d)(2) or 803(8).
On appeal Small argued his constitutional right to confront witnesses was violated because he was not able to cross-examine his co-defendant regarding the statement the co-defen
dant made to the officer. The Court noted a defendant may not raise one ground for objection at trial and argue a different ground on appeal and found the claim of error waived. Id. at 747.
Small argued at trial that because an officer's testimony was based on police ree-ords, it should have been excluded pursuant to Indiana Evidence Rule 803(8), the hearsay exception for public records and reports. But our Supreme Court noted the State did not admit any police records or investigative reports-instead, it relied solely on the officer's testimony. The trial court therefore did not abuse its discretion in allowing the testimony. Id. at 747 n. 10.
Koenig's hearsay and foundational objection was sufficient to preserve the Confrontation Clause argument he now raises.
Our Supreme Court has noted the close relationship between hearsay and confrontation: "Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 LEd.2d 177 (2004) ] makes clear that in a criminal prosecution any hearsay permitted under the rules of evidence is also subject to the defendant's right 'to be confronted with the witnesses against him' under the Sixth Amendment to the United States Constitution." Hammon v. State, 829 N.E.2d 444, 449 (Ind.2005), rev'd and remanded on other grounds by Davis v. Washington, 547 U.S. 813, 824, 126 S.Ct. 2266, 165 LEd.2d 224 (2006). The Confrontation Clause applies only to testimonial hearsay. Davis, 547 U.S. at 824, 126 S.Ct. 2266. Hearsay rules and the Confrontation Clause are "generally designed to protect similar values" and they "stem from the same roots." White v. Illinois, 502 U.S. 346, 353, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992).
The Confrontation Clause is violated when hearsay evidence is admitted as substantive evidence against a defendant with no opportunity to cross-examine the hearsay declarant at trial. Kentucky v. Stincer, 482 U.S. 730, 737, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). In Giles v. Califoria, -- U.S. --, 128 S.Ct. 2678, 2686, 171 L.Ed.2d 488 (2008), the Court noted "courts prior to the founding excluded hearsay evidence in large part because it was unconfronted." The lab report should not have been admitted
and Koenig did not lose his ability to challenge the error just because he presented his objection in terms of hearsay and foundation.
While the lab report should not have been admitted and Koenig preserved
that allegation of error with his trial objection on hearsay and foundation grounds, the error was harmless because there was sufficient evidence to support his conviction even without the lab report. See West v. State, 805 N.E.2d 909, 911 (Ind.Ct.App. 2004) (error in admitting test results was harmless because the evidence was sufficient to support the conviction even without considering the improperly admitted test results), trans. denied 812 N.E.2d 808 (Ind.2004).
The State is not required to introduce the subject contraband to obtain a conviction for dealing or possession. Helton v. State, 907 N.E.2d 1020, 1024 (Ind. 2009). The identity and quantity of a controlled substance, and the defendant's possession of or dealing in narcotics, may be established through witness testimony and circumstantial evidence. Id. The exclusion of the seized items in Helton's case, therefore, did not foreclose prosecution and conviction based on other evidence. In Halsema v. State, 823 N.E2d 668, 678 n. 1 (Ind.2005), Halsema contended that because the identity of the drugs was not "scientifically determined" his conviction of possession of methamphetamine could not be sustained. Our Supreme Court held the identity of a drug can be proven by circumstantial evidence: "In the absence of expert testimony based on chemical analysis, this may include the 'testimony of someone sufficiently experienced with the drug indicating that the substance was indeed a dangerous drug'" Id. (quoting Slettvet v. State, 258 Ind. 312, 316, 280 N.E.2d 806, 808 (1972)).
While the type of cireumstantial evidence usually contemplated is the testimony of someone experienced with the drug who identifies the substance, proof by cireumstantial evidence is not within the exclusive realm of experienced drug users; other cireumstantial evidence may be sufficlient. Clifton v. State, 499 N.E.2d 256, 258 (Ind.1986). In Clifton, police identified the appearance of the substance as resembling heroin, and a witness who swallowed the substance as police approached testified the substance was heroin he purchased for his girlfriend.
Koenig admitted he gave Harbin methadone, he told Harbin he usually took two, he watched Harbin take five methadone pills, he made a list of the drugs he had given Harbin, he told police where he had obtained the methadone, and he indicated he was familiar with drugs. A witness who was present when Harbin took the methadone corroborated Koenig's statement. There was sufficient evidence to support the conviction without the lab report, and we accordingly affirm.
Affirmed.
CRONE, J., and BROWN, J., concur.