FOR PUBLICATION
                                                        FILED
                                                     Sep 06 2012, 9:32 am


                                                             CLERK
                                                           of the supreme court,
                                                           court of appeals and
                                                                  tax court



ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

MICHAEL FRISCHKORN                          GREGORY F. ZOELLER
Frischkorn Law LLC                          Attorney General of Indiana
Fortville, Indiana
                                            JODI KATHRYN STEIN
                                            Deputy Attorney General
                                            Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

TROY WILSON,                                )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )   No. 29A02-1202-CR-88
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE HAMILTON SUPERIOR COURT
                       The Honorable J. Richard Campbell, Judge
                           Cause No. 29D04-1008-CM-3885


                                 September 6, 2012

                            OPINION - FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

           Troy Wilson (“Wilson”) was convicted after a jury trial of Possession of Marijuana, as

a Class A misdemeanor1, and Driving While Intoxicated, as a Class A misdemeanor.2 He

now appeals his conviction for Driving While Intoxicated.

           We affirm.

                                                Issue

           Wilson presents two issues for our review, which we restate as a single issue: whether

the trial court abused its discretion when it did not permit Wilson to elicit testimony

concerning the reliability of toxicology test results from the Indiana Department of

Toxicology (“the Department”), as reflected in an audit of testing performed by the

Department from 2007 to 2009.

                                  Facts and Procedural History

           At around 2:52 a.m. on December 6, 2009, Wilson was driving his car eastbound on

236th Street in Cicero. Cicero Police Department Officer Bradley Gorgas (“Officer Gorgas”)

was on patrol in the same area, driving westbound on 236th Street.

           Wilson and Officer Gorgas both turned onto a side street, with Wilson’s car in front of

Officer Gorgas’s. Officer Gorgas twice saw Wilson’s car briefly cross over the centerline of

the road and immediately swerve back toward the right-hand fog line. Officer Gorgas

matched the speed of his police car to the speed of Wilson’s car, and determined that Wilson



1
    Ind. Code § 35-48-4-11(1).
2
    I.C. § 9-30-5-2(a) & (b).

                                                  2
was travelling around fifty-five miles per hour in a forty mile-per-hour speed zone. Officer

Gorgas therefore initiated a traffic stop.

       Wilson pulled his vehicle over after driving for another two blocks. When Officer

Gorgas reached the car, Wilson rolled his window down, and Officer Gorgas immediately

smelled the odor of an alcoholic beverage. Wilson’s speech was slurred and his eyes were

bloodshot and glassy.

       Wilson was belligerent and refused to comply with Officer Gorgas’s request to

conduct a field sobriety test. Wilson agreed to submit to a portable breath test for alcohol,

but refused to comply with Officer Gorgas’s request that he exit the car until Officer Gorgas

opened the car door himself. Once Wilson exited the car, Officer Gorgas moved to handcuff

Wilson, who clutched his chest and claimed to be having a heart attack. Officer Gorgas

called an ambulance and secured Wilson to wait for the ambulance.

       Once the ambulance arrived, paramedics began to treat Wilson while Officer Gorgas

performed an inventory search of Wilson’s car. The search recovered a small wooden

“dugout” box that contained a small amount of a substance that was later determined to be

marijuana. (Tr. at 104.) The ambulance transported Wilson to Riverview Hospital in

Noblesville, and Officer Gorgas followed the ambulance on the ten-minute drive.

       Wilson, accompanied by Officer Gorgas, was placed in the hospital’s emergency room

and received treatment for approximately one hour. Wilson had agreed to submit to a blood

draw to test for the presence of alcohol in his system. At around 4:09 a.m., nurse Stacia

Malloch (“Malloch”) performed the blood draw using a testing kit provided to Officer


                                             3
Gorgas by the Cicero Police Department, which kit the Police Department had received from

the Indiana State Department of Toxicology. Officer Gorgas sealed the kit and took Wilson

to the Hamilton County Jail, where he passed out unconscious on a bench in the booking

room while Officer Gorgas completed paperwork. The testing kit was placed into evidence

at the Cicero Police Department and was transported for testing and analysis at the Indiana

State Department of Toxicology’s laboratory.

          On August 5, 2010, Wilson was charged with Possession of Marijuana, as a Class A

misdemeanor (“Count I”); Operating a Vehicle While Intoxicated Endangering a Person, as a

Class A misdemeanor (“Count II”); and Operating a Vehicle With an Alcohol Concentration

Equivalent of 0.08 grams or more, as a Class C misdemeanor (“Count III”).3

          On September 22, 2010, Wilson filed a demand for a jury trial, which the trial court

granted on September 28, 2010. After several continuances, a jury trial was conducted on

December 8 and 9, 2011. During the trial, Wilson sought to introduce testimony from Scott

Kriger, Ph.D. (“Dr. Kriger”), the Department’s Director, concerning audits conducted of

testing results produced by the Indiana State Department of Toxicology during 2007, 2008,

and 2009. The State objected to the relevance of the proffered testimony. The trial court

sustained the State’s objections and ruled the testimony inadmissible.

          At the conclusion of the trial, the jury found Wilson guilty of all charges. On January

4, 2012, the trial court entered judgments of conviction on Counts I and II and sentenced

Wilson to 365 days imprisonment with 351 days suspended and 365 days of probation as to


3
    See I.C. § 9-30-5-1(a).

                                                 4
both Count I and Count II, with the sentences to run concurrently.

       This appeal followed.

                                 Discussion and Decision

                                    Standard of Review

       Wilson’s appeal challenges the trial court’s rulings that precluded him from eliciting

testimony from Dr. Kriger concerning the results of audits conducted at the Indiana State

Department of Toxicology Laboratory. We review a trial court’s rulings on the admissibility

of evidence at trial for an abuse of discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct.

App. 2010), trans. denied. An abuse of discretion occurs when the trial court’s decision is

contrary to the logic and effect of the facts and circumstances before it, or when the trial

court errs on a matter of law. Id. We do not reweigh evidence and consider any conflicting

evidence in favor of the trial court’s ruling, though we also consider any uncontested

evidence favorable to the defendant. Lindsey v. State, 916 N.E.2d 230, 238 (Ind. Ct. App.

2009), trans. denied.

       Further, even where the trial court has abused its discretion, we do not reverse the

judgment on appeal where the trial court’s error is harmless, that is, where the appealing

party’s substantive rights were not prejudiced by the trial court’s decision. Ind. Trial Rule

61.

                                          Analysis

       Wilson’s contention on appeal is that the trial court violated his confrontation rights

under the Constitutions of the United States and the State of Indiana when it precluded him


                                              5
from eliciting Dr. Kriger’s testimony concerning results of the audit of the Department’s

laboratory.

       The Confrontation Clause of the Sixth Amendment of the U.S. Constitution provides,

in relevant part, that “the accused shall enjoy the right … to be confronted with the witnesses

against him.” The Indiana Constitution extends a similar guarantee. See Ind. Const. art. 1, §

13. In a line of cases beginning with Crawford v. Washington, 541 U.S. 36 (2004), the

Supreme Court held that the Confrontation Clause precluded from admission into evidence

against a criminal defendant out-of-court testimonial statements except where the statement

was made by an unavailable witness whom the defendant had a prior opportunity to cross-

examine. Crawford, 541 U.S. at 53-54.

       A subsequent case in the Crawford line, Melendez-Diaz, held that the right of

confrontation encompasses a requirement that defendants be able to cross-examine laboratory

analysts who created certificates of analysis concerning the nature of a particular substance—

in that case, cocaine. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11 (2009). The

Supreme Court later held that “surrogate testimony” of one analyst for another was not

sufficient to satisfy this right, Bullcoming v. New Mexico, 564 U.S. ____, 131 S.Ct. 2705,

2714 (2011), and thus in almost any event “the analysts who write reports that the

prosecution introduces must be made available for confrontation.” Id. at 2715. This is

because the defendant may seek to “expose any lapses or lies on the certifying analyst’s part”

during a cross-examination of that analyst. Id.

       Here, Wilson’s blood sample was taken on December 6, 2009 and analyzed by Dawn


                                              6
Golden (“Golden”), an analyst with the Department’s laboratory, in May and June 2011.

Wilson cross-examined Golden concerning her work in the analysis of his blood sample.

Wilson also cross-examined Dr. Kriger, who was the Director of the Department at the time

Golden performed the analysis on Wilson’s blood sample in May and June 2011. Both

Golden’s and Dr. Kriger’s testimony concerned the basic and applied science underlying the

operation of the gas chromatography instruments used to analyze and produce a result from

Wilson’s blood sample and Golden’s analysis of the sample. Wilson was able at trial to elicit

testimony from both witnesses concerning such matters as the calibration and maintenance of

the gas chromatography machine, the meaning of the expiration dates printed on the testing

kit issued to Officer Gorgas, and the specific laboratory and chain of custody protocols

associated with the testing of the blood sample. From this, we conclude that Wilson was

afforded the opportunity to cross-examine the analyst responsible for the test results showing

the alcohol content of his blood, and thus there was no denial of his right to confrontation.4

       Wilson also argues that even if the trial court’s decision to preclude certain lines of

questioning with Dr. Kriger did not violate the Confrontation Clause, the trial court

nevertheless erred when it concluded that the evidence he sought to elicit from Dr. Kriger

was irrelevant. Relevant evidence is that evidence “having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable


4
 Indeed, we observe that Golden’s analysis was in fact the second time testing had been performed on
Wilson’s sample and complied with the Department’s procedures requiring that such occur once the
analyst who performed the first testing on Wilson’s blood in 2010 was no longer employed by the
Department. That is, the Department’s procedures properly contemplated the need for new analysis, and
implemented those procedures in advance of and separate from the Supreme Court’s ruling in Bullcoming.


                                                  7
or less probable than it would be without the evidence.” Ind. Evidence Rule 401. Only

relevant evidence is admissible at trial. Evid. R. 402.

       Here, Wilson sought to examine Dr. Kriger concerning the results of audits performed

at the Department’s laboratory. During Wilson’s offer of proof, he examined Dr. Kriger

concerning the audit results. Dr. Kriger testified that the audits covered testing of substances

for marijuana, cocaine, and alcohol performed from 2007 to 2009. The portion of the audits

covering marijuana and cocaine tests had been completed. The portion of the audits covering

blood-alcohol testing had been suspended, and Dr. Kriger had not received any information

concerning the preliminary results of the blood-alcohol testing audit. Numerous personnel

changes had occurred between the 2007 through 2009 testing period covered by the audit and

Dr. Kriger’s arrival at the Department in February 2011, and Dr. Kriger had introduced

numerous changes to the testing and analysis procedures followed by the Department.

       At the conclusion of the offer of proof, Wilson argued that this testimony was relevant

to the jury’s consideration of the results of the 2011 blood-alcohol testing performed on his

blood sample. The trial court concluded that because the audit applied only to tests

conducted in the years 2007, 2008, and 2009, any audit results would have no bearing upon

the tests Golden performed on Wilson’s blood sample in 2011. Wilson argues that these

matters bear upon the jury’s assessment of the credibility of the Department’s analysis of his

blood sample because his test “could have been part of an audit” and the audit had previously

found problems with the analysis of samples for cocaine. (Appellant’s Br. at 8.) Wilson

contends that his samples were excluded from the audit because both the chronological scope


                                               8
of the audit and the decision to suspend the audit were arbitrary, and these decisions “went

directly to the credibility of Dr. Kriger, the credibility of the Department … and the

credibility of the test results received from the Department.” (Appellant’s Br. at 8.)

       We do not agree. The discontinuation of the audit on blood-alcohol samples and the

period of time covered by the audits generally may bear upon the credibility of the

Department’s testing results from 2007 to 2009. But it is not clear that these questions bear

upon the credibility of the Department’s analysis here, where different procedures were

executed by different analysts serving under a different Director more than 1 ½ years beyond

the chronological scope of the audits. Thus, we cannot conclude that the trial court abused its

discretion when it determined that the testimony Wilson sought to introduce was not relevant

to the question of the reliability of Golden’s testing and excluded that testimony from

evidence.

                                         Conclusion

       Because Wilson’s confrontation rights were not violated and the exclusion of

irrelevant testimony by Dr. Kriger regarding the Department’s audit results was not error, we

affirm Wilson’s convictions.

       Affirmed.

RILEY, J., and CRONE, J., concur.




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