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, Jan 22 2014, 9:39 am collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: DORI NEWMAN GREGORY F. ZOELLER Noblesville, Indiana Attorney General of Indiana
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
TABITHA EDWARDS, ) ) Appellant, ) ) vs. ) No. 29A02-1305-CR-444 ) STATE OF INDIANA, ) ) Appellee. )
APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Gail Bardach Cause No. 29D06-1208-FD-8299
January 22, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge Tabitha Edwards (“Edwards”) was convicted in Hamilton Superior Court of Class
A misdemeanor operating a vehicle while intoxicated endangering a person and Class D
felony operating a vehicle while intoxicated with a prior within five years. Edwards
appeals and argues that the trial court abused its discretion in excluding certain evidence
proffered by the defense.
We affirm.
Facts and Procedural History
On August 30, 2012, around 1:45 a.m., Fishers Police Sergeant Mike Janes
(“Sergeant Janes”) was patrolling in his cruiser on I-69 southbound near the 116th Street
exit, in a construction zone with a speed limit of 55 miles per hour. He noticed in his
rearview mirror that a vehicle was approaching him at a high rate of speed. He estimated
that this vehicle was traveling well in excess of the speed limit and, after activating his
rear radar unit, confirmed that the car was traveling at 75 miles per hour. Sergeant Janes
then initiated a traffic stop of the vehicle. He approached the driver’s side and identified
Edwards as the driver of the vehicle and its sole occupant. While Sergeant Janes was
speaking with Edwards, he noticed that her dexterity was poor and that her eyes were red
and watery. He asked Edwards if she had consumed any alcohol, and she stated that she
had begun drinking around 7:00 p.m. that night and had stopped drinking around 9:00
p.m.
Sergeant Janes then radioed dispatch for another unit to assist him in administering
to Edwards field sobriety tests. Shortly thereafter, when two additional officers arrived at
2 the scene of the traffic stop, Sergeant Janes asked Edwards to exit her vehicle. He
noticed that, as she did so, she staggered and leaned against the car.
Sergeant Janes first administered the horizontal gaze nystagmus test, which
Edwards failed. Sergeant Janes then initiated the nine-step field sobriety test, but
Edwards indicated that one of her legs was shorter than the other, and Sergeant Janes did
not require her to complete the test. Sergeant Janes next administered two divided
attention tests—the first required Edwards to recite the alphabet beginning with the letter
C and ending with the letter N; the second required Edwards to count backwards from
103 to 78. During the first test, Edwards skipped the letter M. Edwards successfully
completed the second test.
Edwards then agreed to submit to a blood test. Sergeant Janes, who is also a
certified paramedic authorized to administer blood tests, transported Edwards to the
Fishers Police Department and drew her blood at 2:41 a.m. The blood test results
indicated that Edwards’s blood alcohol content was .09.
On August 30, 2012, the State charged Edwards with Count I, operating a vehicle
while intoxicated endangering a person, a Class A misdemeanor. On the day of trial,
April 9, 2013, the State amended the charging information to include Count II, operating
a vehicle with an alcohol concentration equivalent (“ACE”) of .08 or more, a Class C
misdemeanor; Count III, operating a vehicle while intoxicated with a prior within five
years, a Class D felony; and Count IV, operating a vehicle with an ACE of .08 or more
with a prior within five years.
At her jury trial, Edwards presented the testimony of pharmacist Dr. John Belloto
3 (“Dr. Belloto”). Dr. Belloto testified that he had reviewed Edwards’s gas chromatograms
and that the chromatograms indicated to him that fermentation had taken place such that
the results of the blood test may have been inaccurate and that this fermentation can
cause a blood test margin of error of up to twenty-five percent.
During Dr. Belloto’s testimony, the trial court refused to admit four documents
offered by Edwards: Defendant’s Exhibits B, C, D, and E. Edwards argued that, although
the documents contained hearsay, they should be admitted under the business records
hearsay exception, since they were produced by the Indiana Department of Toxicology.
The trial court did not admit the documents, finding that they contained inadmissible
hearsay and were not properly authenticated. The court stated:
[Dr. Belloto] did not say anything at all about the Department of Toxicology. He said that he reviewed these documents . . . He did not say where they came from. *** They have not been adequately identified. There is no foundation laid for their admissibility at this point. I’m not saying you can’t do that, but you haven’t done it yet.
Tr. pp. 245-46. Edwards, however, failed to elicit testimony from Dr. Belloto sufficient
to authenticate the documents.
The jury found Edwards guilty on Counts I and II. Edwards pleaded guilty to
counts III and IV. Due to concerns related to double jeopardy, the trial court entered
judgments of conviction on Counts I and III only. On May 7, 2013, the trial court
ordered Edwards to serve three years in the Department of Correction, with 185 days
executed and 180 days served on home detention with electronic monitoring. The trial
court suspended the remaining 730 days of Edwards’s sentence to probation.
4 Edwards now appeals.
Discussion and Decision
Edwards claims that the trial court erred in excluding the four documents she
sought to admit through her expert witness, Dr. Belloto. Questions regarding the
admission or exclusion of evidence are within the discretion of the trial judge and are
reviewed on appeal only for an abuse of that discretion. Wells v. State, 904 N.E.2d 265,
269 (Ind. Ct. App. 2009), trans. denied. The trial court abuses its discretion only if its
decision is clearly against the logic and effect of the facts and circumstances before it, or
if the court has misinterpreted the law. Id.
A testifying expert witness may offer his opinion based in part upon documents
which have not been admitted and which contain inadmissible hearsay where that expert
has sufficient expertise to determine the accuracy and reliability of the information, the
document is of the type which is normally found to be reliable, and the information
contained in the document is the type customarily relied upon by an expert in the practice
of his profession. See Phillips v. State, 179 Ind. App. 517, 523-24, 386 N.E.2d 704, 708
(1979); Faulkner v. Markkay of Indiana, Inc., 663 N.E.2d 798, 800 (Ind. Ct. App. 1996).
However, the Rules of Evidence do not permit the admission of documents relied upon
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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, Jan 22 2014, 9:39 am collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: DORI NEWMAN GREGORY F. ZOELLER Noblesville, Indiana Attorney General of Indiana
CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
TABITHA EDWARDS, ) ) Appellant, ) ) vs. ) No. 29A02-1305-CR-444 ) STATE OF INDIANA, ) ) Appellee. )
APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Gail Bardach Cause No. 29D06-1208-FD-8299
January 22, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge Tabitha Edwards (“Edwards”) was convicted in Hamilton Superior Court of Class
A misdemeanor operating a vehicle while intoxicated endangering a person and Class D
felony operating a vehicle while intoxicated with a prior within five years. Edwards
appeals and argues that the trial court abused its discretion in excluding certain evidence
proffered by the defense.
We affirm.
Facts and Procedural History
On August 30, 2012, around 1:45 a.m., Fishers Police Sergeant Mike Janes
(“Sergeant Janes”) was patrolling in his cruiser on I-69 southbound near the 116th Street
exit, in a construction zone with a speed limit of 55 miles per hour. He noticed in his
rearview mirror that a vehicle was approaching him at a high rate of speed. He estimated
that this vehicle was traveling well in excess of the speed limit and, after activating his
rear radar unit, confirmed that the car was traveling at 75 miles per hour. Sergeant Janes
then initiated a traffic stop of the vehicle. He approached the driver’s side and identified
Edwards as the driver of the vehicle and its sole occupant. While Sergeant Janes was
speaking with Edwards, he noticed that her dexterity was poor and that her eyes were red
and watery. He asked Edwards if she had consumed any alcohol, and she stated that she
had begun drinking around 7:00 p.m. that night and had stopped drinking around 9:00
p.m.
Sergeant Janes then radioed dispatch for another unit to assist him in administering
to Edwards field sobriety tests. Shortly thereafter, when two additional officers arrived at
2 the scene of the traffic stop, Sergeant Janes asked Edwards to exit her vehicle. He
noticed that, as she did so, she staggered and leaned against the car.
Sergeant Janes first administered the horizontal gaze nystagmus test, which
Edwards failed. Sergeant Janes then initiated the nine-step field sobriety test, but
Edwards indicated that one of her legs was shorter than the other, and Sergeant Janes did
not require her to complete the test. Sergeant Janes next administered two divided
attention tests—the first required Edwards to recite the alphabet beginning with the letter
C and ending with the letter N; the second required Edwards to count backwards from
103 to 78. During the first test, Edwards skipped the letter M. Edwards successfully
completed the second test.
Edwards then agreed to submit to a blood test. Sergeant Janes, who is also a
certified paramedic authorized to administer blood tests, transported Edwards to the
Fishers Police Department and drew her blood at 2:41 a.m. The blood test results
indicated that Edwards’s blood alcohol content was .09.
On August 30, 2012, the State charged Edwards with Count I, operating a vehicle
while intoxicated endangering a person, a Class A misdemeanor. On the day of trial,
April 9, 2013, the State amended the charging information to include Count II, operating
a vehicle with an alcohol concentration equivalent (“ACE”) of .08 or more, a Class C
misdemeanor; Count III, operating a vehicle while intoxicated with a prior within five
years, a Class D felony; and Count IV, operating a vehicle with an ACE of .08 or more
with a prior within five years.
At her jury trial, Edwards presented the testimony of pharmacist Dr. John Belloto
3 (“Dr. Belloto”). Dr. Belloto testified that he had reviewed Edwards’s gas chromatograms
and that the chromatograms indicated to him that fermentation had taken place such that
the results of the blood test may have been inaccurate and that this fermentation can
cause a blood test margin of error of up to twenty-five percent.
During Dr. Belloto’s testimony, the trial court refused to admit four documents
offered by Edwards: Defendant’s Exhibits B, C, D, and E. Edwards argued that, although
the documents contained hearsay, they should be admitted under the business records
hearsay exception, since they were produced by the Indiana Department of Toxicology.
The trial court did not admit the documents, finding that they contained inadmissible
hearsay and were not properly authenticated. The court stated:
[Dr. Belloto] did not say anything at all about the Department of Toxicology. He said that he reviewed these documents . . . He did not say where they came from. *** They have not been adequately identified. There is no foundation laid for their admissibility at this point. I’m not saying you can’t do that, but you haven’t done it yet.
Tr. pp. 245-46. Edwards, however, failed to elicit testimony from Dr. Belloto sufficient
to authenticate the documents.
The jury found Edwards guilty on Counts I and II. Edwards pleaded guilty to
counts III and IV. Due to concerns related to double jeopardy, the trial court entered
judgments of conviction on Counts I and III only. On May 7, 2013, the trial court
ordered Edwards to serve three years in the Department of Correction, with 185 days
executed and 180 days served on home detention with electronic monitoring. The trial
court suspended the remaining 730 days of Edwards’s sentence to probation.
4 Edwards now appeals.
Discussion and Decision
Edwards claims that the trial court erred in excluding the four documents she
sought to admit through her expert witness, Dr. Belloto. Questions regarding the
admission or exclusion of evidence are within the discretion of the trial judge and are
reviewed on appeal only for an abuse of that discretion. Wells v. State, 904 N.E.2d 265,
269 (Ind. Ct. App. 2009), trans. denied. The trial court abuses its discretion only if its
decision is clearly against the logic and effect of the facts and circumstances before it, or
if the court has misinterpreted the law. Id.
A testifying expert witness may offer his opinion based in part upon documents
which have not been admitted and which contain inadmissible hearsay where that expert
has sufficient expertise to determine the accuracy and reliability of the information, the
document is of the type which is normally found to be reliable, and the information
contained in the document is the type customarily relied upon by an expert in the practice
of his profession. See Phillips v. State, 179 Ind. App. 517, 523-24, 386 N.E.2d 704, 708
(1979); Faulkner v. Markkay of Indiana, Inc., 663 N.E.2d 798, 800 (Ind. Ct. App. 1996).
However, the Rules of Evidence do not permit the admission of documents relied upon
by an expert witness to prove the truth of matters they contain if those documents are
otherwise inadmissible. Faulkner, 663 N.E.2d at 800. In other words, an expert
witness’s reliance on hearsay statements may not simply be used as means for presenting
documents containing inadmissible hearsay to a jury.
Edwards contends that the trial court abused its discretion in excluding the
5 documents, arguing that “the rule of hearsay does not bar the evidence that Edwards tried
to admit because the witness was an expert and can form opinions based on reliable
hearsay pursuant to Indiana Rules of Evidence 702 and 703.” Appellant’s Br. at 7. We
disagree.
An offer of proof is required to challenge on appeal a trial court’s ruling denying
admission into evidence proffered testimony or other information. Ind. R. Evid.
103(a)(2). “The purpose of an offer to prove is to enable the trial court and this court to
determine the admissibility and relevance of the proffered evidence.” Carter v. State, 932
N.E.2d 1284, 1287 (Ind. Ct. App. 2010). Failure to make an offer of proof waives
appellate review. Id. Here, Edwards did not make an offer of proof sufficient to preserve
the issue for appeal. Therefore, Edwards’s claim of error is waived.
Waiver notwithstanding, Edwards’s claim still fails. Authentication is a condition
precedent to admissibility. See Ind. R. Evid. 901(1). The requirement of authentication
is “satisfied by evidence sufficient to support a finding that the matter in question is what
its proponent claims.” Id. Here, Edwards asserts that, though Exhibits B, C, D, and E
contained hearsay, 1 the trial court improperly excluded the documents because the
documents were admissible under the business records hearsay exception pursuant to
Indiana Evidence Rule 803(6).2 However, at trial, Edwards, in attempting to introduce
1 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is inadmissible unless it falls under a hearsay exception. Ind. R. Evid. 801; see also Jenkins v. State, 725 N.E.2d 66, 68 (Ind. 2000) (citing Ind. R. Evid. 802). However, hearsay can be admissible under one of several exceptions, including the business records exception. Ind. R. Evid. 803. 2 Rule 803(6) provides that “[a] record of an act, event, condition, opinion, or diagnosis [is admissible hearsay] if: 6 the documents during Dr. Belloto’s testimony, failed to submit an affidavit or elicit any
testimony demonstrating that Exhibit B, C, D, or E were business records maintained by
the Indiana Department of Toxicology. Rather, Dr. Belloto merely testified that he had
received the documents from Edwards’s counsel and that he assumed that Edwards’s
counsel had received the documents from the State. Furthermore, the documents
themselves did not contain any information proving that they were produced by the
Indiana Department of Toxicology. Without any indication of their authenticity, the trial
court properly refused to admit Exhibits B, C, D, and E. Therefore, under these facts and
circumstances, we conclude that the trial court did not abuse its discretion when it refused
to admit the documents Edwards sought to introduce during Dr. Belloto’s testimony.
Conclusion
For all of these reasons, we conclude that the trial court did not abuse its discretion
in excluding the documents proffered by Edwards at trial.
Affirmed.
BRADFORD, J., and PYLE, J., concur.
(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(9) or (10) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. 7