Richard Vance Hastings v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED

this Memorandum Decision shall not be Jun 21 2016, 6:17 am

regarded as precedent or cited before any CLERK

court except for the purpose of establishing Indiana Supreme Court

Court of Appeals

and Tax Court

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

John L. Tompkins Gregory F. Zoeller

Brown Tompkins Lory & Mastrian Attorney General of Indiana

Indianapolis, Indiana Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Richard Vance Hastings, June 21, 2016

Appellant-Defendant, Court of Appeals Case No.

29A02-1507-CR-982

v. Appeal from the Hamilton

Superior Court

State of Indiana, The Honorable Gail Bardach,

Appellee-Plaintiff Judge

Trial Court Cause No.

29D06-1409-F6-7817

Mathias, Judge.

[1] Following a jury trial, Richard Hastings (“Hastings”) was convicted in

Hamilton Superior Court of Level 6 felony for operating a motor vehicle while

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intoxicated with a blood alcohol equivalent of 0.08 or more with a prior

conviction within five years. On appeal, Hastings presents two issues, one of

which we find dispositive: whether the trial court erred in excluding the

testimony of Hastings’ proffered expert witness. Concluding that the trial court

abused its discretion in excluding the testimony of this witness and that this

exclusion was not harmless, we reverse and remand.

Facts and Procedural History

[2] On the evening of September 12, 2014, Officer Charles Nichols (“Officer

Nichols”) of the Westfield Police Department was on patrol when he saw a

black Jeep Wrangler traveling at 65 miles per hour in a 40-mile-per-hour

construction zone on U.S. Highway 31. Officer Nichols initiated a traffic stop

and spoke with Hastings, who was driving the Jeep. Although Hastings claimed

to have had only one drink earlier in the evening, Officer Nichols noticed that

Hastings had red, bloodshot eyes and also observed two unopened cases of beer

in the back of the Jeep.

[3] Believing that Hastings might be intoxicated, Officer Nichols instructed

Hastings to undergo three field sobriety tests: the horizontal gaze nystagmus

test, the nine-step walk-and-turn test, and the one-leg stand test. Hastings failed

all three tests. Officer Nichols then transported Hastings to the police station,

where he tested Hastings with a chemical breath test. This test indicated that

Hastings’ blood alcohol equivalent (“BAE”) was 1.08 grams per 210 liters of

breath.

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[4] On September 17, 2014, the State charged Hastings with Class C misdemeanor

operating a motor vehicle while intoxicated, Class C misdemeanor operating a

motor vehicle with a BAE of 0.08 or greater, Level 6 felony operating a motor

vehicle while intoxicated and having a prior conviction within five years, and

Level 6 felony operating a motor vehicle with a BAE of 0.08 or greater and

having a prior conviction within five years.

[5] On the day prior to trial, the State filed a motion in limine seeking to prevent

Hasting’s expert witness, Dr. Robert Belloto, Jr. (“Dr. Belloto”), from testifying

regarding the specific chemical breath test device used on Hastings, the

Intoxylizer EC/IR II. The trial court held a hearing on this motion immediately

before the jury trial began. The State orally moved to expand its motion in

limine to include other areas of Dr. Belloto’s testimony. The trial court ruled

from the bench as follows:

I’m going to grant the State’s motion with respect to [Dr.

Belloto’s] testimony. I’m granting the motion with respect to

everything in both written motions. I’m also granting the motion

that the State is now making orally. That doesn’t exclude him from

testifying. It does exclude him from testifying before the jury until

such time as we have a hearing out of the presence of the jury to

determine what he will, whether he is qualified as an expert on

anything having to do with this trial, anything relevant in this

trial. I’m not forever excluding his testimony, that’s not what a motion

in limine does. What it does is exclude his testimony until such

time as I make a determination with him on the stand as to what

his testimony would be, outside the presence of the jury, that it is,

that he does qualify as an expert and that his testimony would be

relevant.

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Tr. pp. 17-18 (emphasis added).

[6] At the conclusion of the State’s case-in-chief, Hastings called Dr. Belloto as a

witness. Dr. Belloto was then questioned by both parties outside the presence of

the jury to determine his qualifications as an expert. The trial court ruled:

I don’t find that Dr. Belloto satisfies the requirement for the

Court to accept him as an expert to testify in this area. I just have

a really difficult time believing that any pharmacist in any drug

store could walk into a courtroom and testify in an operating

while intoxicated case as an expert on this issue, and that is the

position that he has taken. He has been, he has testified

approximately 20 times, he said. He hasn’t been trained with

respect to anything except the various machines. He’s studied

pharmacy, he’s studied pharmo, pharmokinetics. So have a lot of

other people. I don’t find him to be an expert.

Tr. pp. 171-72.

[7] At the conclusion of the first stage of the trial, the jury found Hastings guilty of

both misdemeanor counts. Hastings then pleaded guilty to the Level 6 felony

enhancements, i.e., he admitted that he had a prior conviction for operating

while intoxicated within the past five years. At sentencing, the trial court

merged the other convictions into the one count of Level 6 felony operating a

motor vehicle with a BAE of 0.08 or greater while having a prior conviction

within the last five years. The court sentenced Hastings to 910 days, with 360

days executed and 550 days suspended to probation. Hastings now appeals.

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Discussion and Decision

A. Standard of Review

[8] Hastings first argues that the trial court erred in excluding the testimony of Dr.

Belloto. Decisions regarding the admission of evidence are entrusted to the

sound discretion of the trial court, and we review the court’s decision 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’s ruling on the admission of evidence

constitutes an abuse of 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.

B. Procedural Claims

[9] Hastings first argues that the procedure used by the trial court to address the

State’s objection to Dr. Belloto’s testimony was so unfair as to constitute

fundamental error. Because he made no objection to the trial court’s procedure

below, Hastings must argue that the trial court’s procedure was fundamental

error. See Sampson v. State, 38 N.E.3d 985, 992 (Ind. 2015) (noting that the

failure to object at trial waives the issue for review unless fundamental error

occurred). The fundamental error doctrine is an exception to the general rule

that the failure to object at trial constitutes procedural default or “waiver”

precluding consideration of the issue on appeal. Id. However, the fundamental

error exception applies only when the error constitutes a blatant violation of

basic principles, the harm or potential for harm is substantial, and the resulting

error denies the defendant fundamental due process. Id. Also, harm is not

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shown by the fact that the defendant was ultimately convicted. Id. Instead,

harm is found when error is so prejudicial as to make a fair trial impossible. Id.

[10] Hastings complains that the trial court erred by permitting the State to file its

motion in limine the day before trial. However, the trial court had issued a pre-

trial order, applicable to both parties, that set the day before trial as the deadline

for such motions. We fail to see how this constitutes error. Moreover, Hastings

refers us to no authority (and we are aware of no such authority) that would

require the State to file a pre-trial motion in order to object to Dr. Belloto’s

testimony. The State would have been within its rights to simply object to Dr.

Belloto’s testimony during the trial. As noted by the State on appeal, it was not

the prosecutor’s burden to disqualify Dr. Belloto’s testimony; it was Hastings’

burden to establish Dr. Belloto as an expert. See Prewitt v. State, 819 N.E.2d 393,

410 (Ind. Ct. App. 2004) (“the proponent of expert testimony bears the burden

of establishing the foundation and reliability of the scientific principles and tests

upon which the expert’s testimony is based.”); Ollis v. Knecht, 751 N.E.2d 825,

829-30 (Ind. Ct. App. 2001) (“[T]he party wishing to admit the expert’s

testimony has the burden of proving that the evidence is admissible.”).1

[11] Furthermore, the cases to which Hastings cites are readily distinguishable. In

fact, the cases he cites involve the exclusion of witnesses who were not timely

disclosed. See, e.g., Williams v. State, 714 N.E.2d 644, 651 (Ind. 1999); Cook v.

1

See also Robert L. Miller, Jr., 13 Ind. Practice, Evidence § 702.207 (3d ed.).

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State, 675 N.E.2d 687, 691 (Ind. 1996); Wiseheart v. State, 491 N.E.2d 985, 991

(Ind. l986). None of these cases involves a determination that a witness was not

qualified to testify as an expert.

[12] Hastings also complains that the exclusion of his expert witness denied him his

right to present a defense and witnesses in his favor. Our supreme court has

explained:

Every defendant has the fundamental right to present witnesses

in their own defense. Chambers v. Mississippi, 410 U.S. 284, 302

(1973); Washington v. Texas, 388 U.S. 14, 19(1967); Kellems v.

State, 651 N.E.2d 326, 328 (Ind. Ct. App. 1995). This right “is in

plain terms the right to present a defense, the right to present the

defendant’s version of the facts as well as the prosecution’s to the

jury so it may decide where the truth lies.” Washington, 388 U.S.

at 19. At the same time, while the right to present witnesses is of the

utmost importance, it is not absolute. See Chambers, 410 U.S. at 302;

Kellems, 651 N.E.2d at 328. “In the exercise of this right, the accused,

as is required of the State, must comply with established rules of

procedure and evidence designed to assure both fairness and reliability in

the ascertainment of guilt and innocence.” Chambers, 410 U.S. at 302.

Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998), aff’d in relevant part on reh’g, 711

N.E.2d 1237 (Ind. 1999) (emphasis added).

[13] Here, the trial court’s exclusion of Dr. Belloto’s testimony was done pursuant to

the established Indiana Rules of Evidence. The mere fact that the trial court

may have erred in excluding the evidence does not transform any evidentiary

error into constitutional error. In short, Hastings has not persuaded us that the

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procedure used by the trial court to determine whether Dr. Belloto should be

permitted to testify as an expert constituted fundamental error.

C. Indiana Evidence Rule 702

[14] Hastings argues that the trial court abused its discretion by excluding Dr.

Belloto’s testimony.2 The admission of expert testimony is governed by Indiana

Evidence Rule 702, which provides:

(a) A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if the expert’s scientific, technical, or other

specialized knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue.

(b) Expert scientific testimony is admissible only if the court is

satisfied that the expert testimony rests upon reliable scientific

principles.

2

The State claims that Hastings waived his claim regarding the exclusion of Dr. Belloto’s testimony because

he allegedly failed to make an offer of proof. Pursuant to Indiana Evidence Rule 103(a)(2), “a party may

claim error in a ruling to . . . exclude evidence only if the error affects a substantial right of the party and . . .

a party informs the court of its substance by an offer of proof, unless the substance was apparent from the

context.” Here, Dr. Belloto was examined extensively by both parties regarding his qualifications as an expert

witness. Included in this questioning was sufficient information to reveal what the substance of Dr. Belloto’s

testimony would have been, i.e., the effects of alcohol on the human body and how alcohol is absorbed and

metabolized by the body. It is also apparent that he would have testified to some extent regarding the

procedures and chemistry used in the chemical breath machines for which he has received training. We

accordingly decline to hold that Hastings failed to preserve his appellate argument by failing to make an offer

to prove. See Bedree v. Bedree, 747 N.E.2d 1192, 1196 (Ind. Ct. App. 2001) (holding that an offer of proof was

not strictly necessary where the substance of the testimony the excluded witness would have given was

apparent from the context of the case); see also Arhelger v. State, 714 N.E.2d 659, 666 (Ind. Ct. App. 1999)

(noting that an offer of proof need not be “formal” and must only (1) make the substance of the excluded

evidence or testimony clear to the court, (2) identify the grounds for admission of the testimony, and (3)

identify the relevance of the testimony).

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[15] Thus, for a witness to qualify as an expert, the subject matter of the witness’s

testimony must be distinctly related to some scientific field, business, or

profession beyond the knowledge of the average person, and the witness must

have sufficient skill, knowledge, or experience in that area so that the opinion

will aid the trier of fact. Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999).

[16] Although federal courts use the standard set forth in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), when determining whether expert

testimony is based on reliable scientific principles, Indiana courts are not bound

by Daubert. Still, the principles stated in Daubert can be helpful. Id. As

explained in Turner v. State:

Although Indiana courts are not bound by Daubert, we have

previously noted that [t]he concerns driving Daubert coincide

with the express requirement of Indiana Rule of Evidence 702(b)

that the trial court be satisfied of the reliability of the scientific

principles involved. Though we may consider the Daubert factors

in determining reliability, there is no specific “test” or set of

“prongs” which must be considered in order to satisfy Indiana

Evidence Rule 702(b). We therefore find Daubert helpful, but not

controlling, when analyzing testimony under Indiana Evidence

Rule 702(b).

953 N.E.2d 1039, 1050 (Ind. 2011) (citations and internal quotations omitted).

[17] Accordingly, in determining whether evidence is admissible under Rule 702(b),

Indiana courts may consider whether the theory or technique can be and has

been tested, whether the theory has been subjected to peer review and

publication, whether there is a known or potential error rate, and whether the

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theory has been generally accepted within the relevant field of study. Id. at 1048

(citing Daubert, 509 U.S. at 593-94). Moreover, as clarified in Turner:

Indiana’s Rule 702 is not intended to interpose an unnecessarily

burdensome procedure or methodology for trial courts. [T]he

adoption of Rule 702 reflected an intent to liberalize, rather than to

constrict, the admission of reliable scientific evidence. As the Supreme

Court instructed in Daubert, “[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of

attacking shaky but admissible evidence.” 509 U.S. at 596.

Evidence need not be conclusive to be admissible. The weakness

of the connection of the item [of evidence] to the defendant goes

toward its weight and not its admissibility. Cross-examination

permits the opposing party to expose dissimilarities between the

actual evidence and the scientific theory. The dissimilarities go to

the weight rather than to the admissibility of the evidence.

Turner, 953 N.E.2d at 1050-51 (emphasis added) (some citations and internal

quotations omitted).

[18] In the present case, Dr. Belloto earned a B.S. in pharmacy from the Ohio State

University (“OSU”), an M.S. in mathematics from the University of Toledo, an

M.S. in pharmacy with an area of study in analytical and physical chemistry,

from OSU, and a Ph.D. in pharmacy from OSU. He was licensed as a

pharmacist in Pennsylvania and Ohio. He was also an assistant professor of

pharmacology at the University of Toledo, where he had taught regarding the

effect of alcohol on the human body. His area of study was in chemical and

physical pharmacology, where he “worked on what we call a dosing and

setting, helping dose drugs so that they’re at their appropriate therapeutic

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range.” Tr. p. 164. He also he had training on several chemical breath test

machines: the Alcotest, the DataMaster, and the Intoxilyzer. Id. When

Hasting’s counsel asked Dr. Belloto, “have you had the occasion to study the

effects and ingestion of alcohol and issues of absorption and burn off,” Dr.

Belloto replied:

Well, that’s what we call pharmacokinetics, that’s again, that’s

what I studied for my Ph.D. That’s what every pharmacist

studies if they want to get a pharmacy degree. So the idea is

looking at absorption, elimination, how are drugs eliminated, not

just looking at the routes but in clinical pharmacology we

quantify those routes as we call it, some call it clinical

pharmacology or pharmacokinetics, or toxicokinetics, depending

if you’re modeling a toxicological effect. As far as the effect, we

call that pharmacodynamics so that you’re modeling both the

time course of the drug and the pharmacological and

toxicological effects.

Tr. p. 165. When asked if he had training and background in “describing the

difference between a person drinking a drink with one ounce of alcohol and the

difference between absorption and burn off of that,” Dr. Belloto replied, “Yes.”

Id. at 166. He had also testified in approximately twenty other cases.

[19] It appears undisputed that Dr. Belloto’s credentials were impressive. He had

extensive training and experience with alcohol and how it affects the human

body. In terms of the rule, subject matter of Dr. Belloto’s testimony was related

to a scientific field—pharmacokinetics—that was beyond the ken of the average

person, and Dr. Belloto had sufficient knowledge and experience in this area

that would have been helpful to the trier of fact.

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[20] The trial court’s decision to exclude Dr. Belloto’s testimony was based on the

Dr. Belloto’s statement that any pharmacist would be qualified to testify as an

expert, a statement with which the trial court took umbrage. However, nothing

about Dr. Belloto’s generalization about the qualifications of any pharmacist

diminishes Dr. Belloto extensive personal qualifications relating to the issues in

this case.

[21] “If the witness has any peculiar knowledge or experience not common to the

world that renders the witness’s opinion founded upon that knowledge any aid

to the trier of fact, the witness may testify as an expert.” 13 Indiana Practice,

Indiana Evidence § 702.107 (3d ed.). In fact, our courts have allowed testimony

from “experts” who had no formal training and who were, unfortunately, far

less trained than pharmacists, e.g. drug users who testified regarding the

identity of drugs based on their own experience. See Clark v. State, 6 N.E.3d 992,

998 (Ind. Ct. App. 2014) (noting that Indiana courts have repeatedly held that a

person familiar with a particular drug through use may be qualified as an expert

to offer an opinion as to whether a substance in question is that drug).

[22] The State readily admits that it does not challenge that “the effects of alcohol

can be studied in a scientific manner.” Appellee’s Br. p. 16. It challenges only

“whether Dr. Belloto’s training as a pharmacist provided the requisite

“‘knowledge, skill, expertise, training, or education’ to qualify as an expert on

that subject.” Id. at 16-17. However, Dr. Belloto testified that he had studied the

effects of alcohol ingestion and the issues of absorption and “burn off” in

humans as part of his Ph.D. training in pharmokinetics. The fact that Dr.

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Belloto did not regularly prescribe ethanol as a drug does not diminish from the

fact that he has training and education beyond the knowledge of the average

person, and his testimony would have been helpful to the trier of fact.

[23] We therefore conclude that the trial court abused its discretion when it

determined that Dr. Belloto was not an expert and excluded his testimony.3

However, just because the trial court abused its discretion does not necessarily

mean that we must reverse Hastings’s conviction.

D. Harmless Error

[24] Errors in the admission or exclusion of evidence are to be disregarded unless

they affect the substantial rights of a party. Barnhart v. State, 15 N.E.3d 138, 143

(Ind. Ct. App. 2014). “In other words, we will find an error in the exclusion of

evidence harmless if its probable impact on the jury, in light of all of the

evidence in the case, is sufficiently minor so as not to affect the defendant’s

substantial rights.” Id. (citing Williams v. State, 714 N.E.2d 644, 652 (Ind.

1999)).

[25] The trial court here entered a judgment of conviction for Level 6 felony

operating a motor vehicle with a BAE of 0.08 or greater. Indeed, the State

3

Our holding should not be construed to mean that any pharmacist is automatically qualified to testify as an

expert in any driving-while-intoxicated case. The qualifications of every expert must be determined on a case-

by-case basis, depending on the “knowledge, skill, experience, training, or education” of that particular

witness. Here, Dr. Belloto had extensive education and training in the field of pharmacology and

pharmacokinetics and even taught this subject as a college professor. Also, he testified that he had studied the

issue of the ingestion, absorption, and metabolization of alcohol in the human body. This, not simply the title

of “pharmacist,” is what qualified him to be an expert witness in this area.

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presented evidence that Hastings’s BAE was .108. Dr. Belloto’s testimony

would have addressed the effects of alcohol on the human body and how it is

absorbed and metabolized. He also explained that he had training on several

chemical breath test devices, including the Intoxilyzer, a variant of which was

used in this case. Because the trial court excluded Dr. Belloto’s testimony, the

jury was not allowed to hear any of this testimony. Therefore, we cannot say

that the improper exclusion of this testimony did not contribute to the jury’s

verdicts. This is not to say that the evidence was not sufficient to support the

jury’s finding that Hastings was intoxicated. We are simply unable to conclude

that the exclusion of Dr. Belloto’s testimony did not have any impact on the

jury’s verdict.

[26] Accordingly, we are constrained to reverse Hastings’s conviction and remand

for retrial. On remand, Dr. Belloto should be permitted to testify regarding the

effects of alcohol on a person of Hastings’ height and weight and how it is

absorbed and metabolized by the body. 4

4

Dr. Belloto also explained that he had training on several chemical breath test devices, including the

Intoxilyzer, a variant of which was used in this case. However, the evidence in the record is insufficient to

determine whether Dr. Belloto can give an informed opinion regarding how this device operates. To the

extent that Hastings argues that Dr. Belloto should have been permitted to testify regarding whether, based

upon video recordings of Hastings on the night of the incident, he believed Hastings was intoxicated, we

disagree. How a person behaves while intoxicated is not a subject that is beyond the knowledge of the

average person. Thus, Dr. Belloto’s opinion on whether Hastings’ behavior indicated that he was intoxicated

would not be helpful to the jury. On remand, Dr. Belloto may not testify regarding this issue.

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Conclusion

[27] The exclusion of Dr. Belloto’s testimony was improper and was not harmless.

We therefore reverse Hastings’ conviction and remand for retrial consistent

with this opinion.5

[28] Reversed and remanded.

Vaidik, C.J., and Barnes, J., concur.

5

Because we reverse Hastings’ conviction, we do not address his other argument that his trial counsel was

ineffective.

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