                                                                         FILED
                                                                    Nov 10 2016, 8:42 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                        Gregory F. Zoeller
Keating & LaPlante, LLP                                   Attorney General of Indiana
Evansville, Indiana
                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

William C. Williams,                                      November 10, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          82A04-1602-CR-295
        v.                                                Appeal from the Vanderburgh
                                                          Superior Court
State of Indiana,                                         The Honorable Leslie C. Shively,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          82D01-1308-FB-1047



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 82A04-1602-CR-295 | November 10, 2016                  Page 1 of 10
                                           Case Summary
[1]   William C. Williams was charged with two counts of Class B felony operating a

      vehicle with a schedule I or II controlled substance in his blood causing death.

      One count was based on having marijuana in his blood, and the other count

      was based on having methamphetamine in his blood. The jury convicted

      Williams of both counts. Williams now appeals his methamphetamine-related

      conviction only. Specifically, Williams contends that the State failed to

      establish a chain of custody for his blood sample so as to allow the admission of

      the results showing that his blood sample tested positive for methamphetamine.

      In order to establish the chain of custody for Williams’ blood sample, the State

      relied heavily on Exhibit 65, which the trial court admitted under the business-

      records exception to the hearsay rule. Williams, however, claims that the trial

      court abused its discretion in admitting Exhibit 65 because the State did not

      properly authenticate it.

[2]   We agree that the State did not properly authenticate Exhibit 65 either by a

      certification that complied with Indiana Evidence Rule 902(11) or by a records

      custodian who testified that the records were made at or near the time by—or

      from information transmitted by—someone with knowledge and that they were

      kept by the lab in the ordinary course of business. Without Exhibit 65, the State

      cannot establish the chain of custody for the sample of Williams’ blood that

      tested positive for methamphetamine. We therefore reverse Williams’

      conviction based on having methamphetamine in his blood.



      Court of Appeals of Indiana | Opinion 82A04-1602-CR-295 | November 10, 2016   Page 2 of 10
                               Facts and Procedural History
[3]   Around 8:00 p.m. on August 6, 2013, Williams was driving his motorcycle with

      his girlfriend, Nancy Parsons, as his passenger. They had been at a funeral

      home in Evansville for Williams’ sister’s viewing and were on their way to go

      line dancing when Williams ran into the back of a van that was stopped at an

      intersection. Nancy was ejected from the motorcycle and later died from her

      injuries. Williams was transported to the hospital, where he consented to a

      blood draw. The Indiana State Department of Toxicology tested Williams’

      blood, and it tested positive for THC. The Department of Toxicology sent a

      sample of Williams’ blood to NMS Labs in Pennsylvania for additional testing.

      NMS Labs issued a toxicology report showing that Williams’ blood sample

      tested positive for methamphetamine.1 See Ex. 65.


[4]   The State charged Williams with Count I: Class B felony operating a vehicle

      with a Schedule I or II controlled substance (marijuana) in his blood causing

      death and Count II: Class B felony operating a vehicle with a Schedule I or II

      controlled substance (methamphetamine) in his blood causing death.2 At trial,

      Williams testified that he did not know how methamphetamine could have

      been in his blood and objected to the admission of State’s Exhibit 65, which is a

      192-page “Litigation Support Package” from NMS Labs containing, among




      1
          This testing also showed the presence of amphetamine, but only methamphetamine is relevant to this case.
      2
       The State also charged Williams with operating a vehicle while intoxicated causing death, but the trial court
      granted Williams’ motion for a directed verdict on this count after the State’s case in chief.

      Court of Appeals of Indiana | Opinion 82A04-1602-CR-295 | November 10, 2016                      Page 3 of 10
      other documents, the toxicology report that shows his blood sample tested

      positive for methamphetamine and the chain of custody for his blood sample.

      Tr. p. 233-247, 307. Although all 192 pages were admitted into evidence, only

      two pages—the actual toxicology report—were submitted to the jury.3

      Williams, however, admitted smoking marijuana two days before the accident

      and did not object to the toxicology report from the Department of Toxicology

      showing that his blood tested positive for THC. Id. at 132, 300; Ex. 63. The

      jury convicted Williams of both counts, and the trial court sentenced him to

      eight years with two years suspended to probation on each count, to be served

      concurrently.

[5]   Williams now appeals his methamphetamine-related conviction only.4



                                     Discussion and Decision
[6]   Williams contends that the State failed to establish a chain of custody for his

      blood sample “so as to allow the admission of the results of tests showing it

      contained methamphetamine.” Appellant’s Br. p. 10. Regarding the chain of

      custody for fungible evidence, including blood samples, the State bears the

      burden of giving reasonable assurances that the evidence remained in an

      undisturbed condition as it passed through various hands. Troxell v. State, 778




      3
          All 192 pages are labeled Exhibit 65(B), while the two pages are labeled Exhibit 65(A).
      4
       Williams says he is challenging both convictions; however, Exhibit 65 concerns only methamphetamine
      (Count II). Williams does not challenge Exhibit 63, which concerns only marijuana (Count I).

      Court of Appeals of Indiana | Opinion 82A04-1602-CR-295 | November 10, 2016                   Page 4 of 10
      N.E.2d 811, 814 (Ind. 2002). The State need not establish a perfect chain of

      custody, and once the State strongly suggests the exact whereabouts of the

      evidence, any gaps go to the weight of the evidence and not to its admissibility.

      Id.


[7]   In order to establish the chain of custody for Williams’ blood sample, the State

      relied heavily on Exhibit 65, see Appellee’s Br. p. 16, which the trial court

      admitted under the business-records exception to the hearsay rule, see Tr. p.

      233-47. Williams argues, however, that the trial court abused its discretion in

      admitting Exhibit 65 because the State did not properly authenticate it.

[8]   Indiana Evidence Rule 902(11) allows the self-authentication of business

      records that meet the requirements of Indiana Evidence Rule 803(6), the

      business-records exception to the hearsay rule, as shown by a certification under

      oath from a business records custodian or another qualified person. Evidence

      Rule 902(11) provides:

              The following items of evidence are self-authenticating; they
              require no extrinsic evidence of authenticity in order to be
              admitted:


                                                    *****


              (11) Certified Domestic Records of a Regularly Conducted
              Activity. Unless the source of information or the circumstances
              of preparation indicate a lack of trustworthiness, the original or a
              copy of a domestic record that meets the requirements of Rule
              803(6)(A)-(C), as shown by a certification under oath of the custodian or
              another qualified person.

      Court of Appeals of Indiana | Opinion 82A04-1602-CR-295 | November 10, 2016     Page 5 of 10
       (Emphasis added). The certification should set forth the signer’s qualifications

       and be notarized in order to avoid any issues concerning the identity of the

       person who signed it. See 13B Robert L. Miller, Jr., Indiana Practice, Courtroom

       Handbook on Indiana Evidence, Rule 902 (2015-16 ed.).


[9]    Thus, for a document to be self-authenticated under Evidence Rule 902(11), the

       proponent must show that the requirements of the business-records exception to

       the hearsay rule are met. Those requirements are:

               (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(11) or (12) 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.


       Ind. Evidence Rule 803(6).


[10]   Here, the Certification of Authenticity for Exhibit 65 submitted by the State

       provides in relevant part:



       Court of Appeals of Indiana | Opinion 82A04-1602-CR-295 | November 10, 2016        Page 6 of 10
[11]   The Certification of Authenticity is deficient because it contains only a notary

       signature as “witness.” There is no signature by a records custodian or another

       qualified person,5 and the certification does not set forth the qualifications of the

       purported records custodian or other qualified person. Moreover, the

       certification does not show that the records meet the requirements of Evidence

       Rule 803(6)(A)-(C), that is, that they were made at or near the time by—or from

       information transmitted by—someone with knowledge and that they were

       made and kept by the lab in the ordinary course of business. Accordingly, the

       Certification of Authenticity is insufficient to authenticate Exhibit 65 pursuant

       to Evidence Rule 902(11).




       5
        In addition, the Certification of Authenticity was not made under the penalties of perjury. See Speybroeck v.
       State, 875 N.E.2d 813, 820 n.7 (Ind. Ct. App. 2007), reh’g denied; In re Paternity of H.R.M., 864 N.E.2d 442,
       448 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Opinion 82A04-1602-CR-295 | November 10, 2016                       Page 7 of 10
[12]   Alternatively, the State argues that it properly authenticated Exhibit 65 by the

       testimony of NMS Labs analyst Jennifer Turri. To admit business records this

       way, the proponent of the exhibit may call a witness who has a functional

       understanding of the record-keeping process of the business with respect to the

       specific entry, transaction, or declaration contained in the document. Rolland v.

       State, 851 N.E.2d 1042, 1045 (Ind. Ct. App. 2006). The sponsor of an exhibit

       need not have personally made it, filed it, or have firsthand knowledge of the

       transaction represented by it; rather, the sponsor need only show that the

       exhibit was part of certain records kept in the routine course of business and

       placed in the records by one who was authorized to do so and who had

       personal knowledge of the transaction represented at the time of entry. Embrey

       v. State, 989 N.E.2d 1260, 1264-65 (Ind. Ct. App. 2013); see also Sandleben v.

       State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014) (“[A] sponsor must still testify

       about how the record was made, who filed it, and that the person who filed it

       was both authorized to do so and had personal knowledge of the transaction.”),

       trans. denied.


[13]   Here, Turri—an analyst at NMS Labs, not a records custodian—testified that

       she was the analyst who tested Williams’ blood, that she came up with a

       finding, and that it is common to log findings in a report. She then identified

       Williams’ toxicology report, which comprises only two pages of the 192-page

       Exhibit 65. Turri explained that she did not prepare Williams’ toxicology

       report. Rather, toxicology reports are computer generated after results are

       submitted through NMS’s laboratory information system. Tr. p. 233; see also id.


       Court of Appeals of Indiana | Opinion 82A04-1602-CR-295 | November 10, 2016   Page 8 of 10
       at 234 (“How it works is after we generate our results . . ., it’s all electronic. . . .

       I don’t physically make this report. But this is how the company does it.”).

[14]   Turri’s testimony, however, only partially explains how the two-page

       toxicology report was created (that is, by computer) and does not show that the

       record was made at or near the time by—or from information transmitted by—

       someone with knowledge and that it was kept by the lab in the ordinary course

       of business. See Evid. R. 803(6) (“all these conditions [must be] shown by the

       testimony of the custodian or another qualified witness . . . .”). In addition,

       Turri’s testimony does not address the other 190 pages of Exhibit 65, which

       include the critical chain-of-custody evidence for Williams’ blood sample.

       Turri’s testimony, therefore, does not authenticate Exhibit 65. Without Exhibit

       65, the State cannot establish the chain of custody for Williams’ blood sample.


[15]   Anticipating our conclusion that the State failed to establish the chain of

       custody for Williams’ blood sample, the State “requests that [we] affirm

       Williams’ conviction on count I, causing death when operating a motor vehicle

       with” marijuana in his blood. Appellee’s Br. p. 20 n.9. Accordingly, we

       reverse Williams’ conviction on Count II, which is based on the

       methamphetamine evidence, and affirm Williams’ conviction on Count I,

       which is based on the unchallenged marijuana evidence.6




       6
        In light of this result, we do not address Williams’ argument that he could be sentenced on only Count I or
       Count II because “only one accident and one death was involved.” Appellant’s Br. p. 16.

       Court of Appeals of Indiana | Opinion 82A04-1602-CR-295 | November 10, 2016                      Page 9 of 10
[16]   Reversed in part.

       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 82A04-1602-CR-295 | November 10, 2016   Page 10 of 10
