      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


      Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016        Page 1 of 15
      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.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016   Page 2 of 15
[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.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016   Page 3 of 15
      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.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016   Page 4 of 15
                                        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

      Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016   Page 5 of 15
       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.).


       Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016   Page 6 of 15
       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



       Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016   Page 7 of 15
       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).

       Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016                     Page 8 of 15
[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

       Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016   Page 9 of 15
       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

       Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016   Page 10 of 15
       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.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016   Page 11 of 15
[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.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016   Page 12 of 15
       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.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016               Page 13 of 15
       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.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016             Page 14 of 15
                                                     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.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1507-CR-982 | June 21, 2016             Page 15 of 15
