MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Feb 05 2020, 8:54 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brandon E. Murphy                                        Curtis T. Hill, Jr.
Cannon Bruns & Murphy, LLC                               Attorney General of Indiana
Muncie, Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darrell Derringer,                                       February 5, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1565
        v.                                               Appeal from the Jay Superior
                                                         Court
State of Indiana,                                        The Honorable Max C. Ludy, Jr.,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         38D01-1802-F6-23



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1565 | February 5, 2020                Page 1 of 9
[1]   Darrell Derringer appeals his conviction for Level 6 Felony Operating a Vehicle

      While Intoxicated,1 arguing that the trial court erred by admitting certain

      evidence and by precluding Derringer’s counsel from making a specific closing

      argument. Finding no error, we affirm.


                                                     Facts
[2]   On February 12, 2018, Jay County Sheriff’s Department Deputy Tyler Hartzell

      initiated a traffic stop of Derringer on US 27 for travelling 38 miles per hour in

      a 20 miles-per-hour zone. As Deputy Hartzell approached Derringer’s vehicle,

      he “detected the odor of burnt marijuana almost immediately.” Tr. Vol. II p.

      74. Deputy Hartzell asked Derringer to exit the vehicle, and Derringer

      complied. Deputy Hartzell noticed that Derringer had “red bloodshot eyes” and

      “slurred speech” and that Derringer “[s]taggered from the vehicle[.]” Id. at 77,

      109. After Derringer failed a field sobriety test, Deputy Hartzell handcuffed him

      and transported him to the Jay County Security Center.


[3]   At the Security Center, Hartzell conducted other sobriety tests on Derringer,

      and Derringer failed all of them. Then, Deputy Hartzell transported Derringer

      to a local hospital to complete a blood draw. The blood was sent to the State

      laboratory for a complete report, which revealed that Derringer’s blood tested

      positive for traces of marijuana.




      1
          Ind. Code §§ 9-30-5-2(a), -3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1565 | February 5, 2020   Page 2 of 9
[4]   On February 15, 2018, the State charged Derringer with one count of Level 6

      felony operating a vehicle while intoxicated. On March 5, 2018, the State also

      filed a notice of intent to introduce the laboratory report into evidence.

      Derringer did not file a demand to confront and cross-examine the preparer of

      the laboratory report.


[5]   During Derringer’s April 25, 2019, jury trial, the State introduced the laboratory

      report as evidence. The State then asked Deputy Hartzell a series of questions

      about the protocol for handling blood samples, the procedure for having blood

      samples tested, the standards of the Indiana Department of Toxicology, and the

      ways in which laboratory reports are compiled and delivered to other State

      officials, such as investigators, the prosecuting attorney, and other deputies. See

      generally id. at 87-90. Deputy Hartzell described his experiences with these

      situations as a law enforcement officer and explained that he had followed the

      proper procedure to the best of his abilities.


[6]   Derringer objected, arguing that “the State has failed to lay an adequate

      foundation for the report.” Id. at 90. The trial court overruled Derringer’s

      objection, finding that the State had laid the proper foundation and established

      a chain of custody. Additionally, the trial court noted that Derringer had

      waived any objection to the veracity of the laboratory report by failing to file a

      demand for confrontation and cross-examination of the report’s preparer.


[7]   During closing arguments, Derringer’s counsel once again attempted to contest

      the admissibility of the laboratory report. The State objected, arguing that


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1565 | February 5, 2020   Page 3 of 9
       Derringer’s counsel should be precluded from making this argument because

       Derringer had already waived his right to confront and cross-examine the

       preparer of the laboratory report. The trial court sustained the State’s objection,

       precluded Derringer’s counsel from remaking this argument, and admonished

       the jury.


[8]    At the conclusion of the trial, on April 26, 2019, the jury found Derringer guilty

       as charged. On June 17, 2019, the trial court sentenced Derringer to two years

       executed in the Jay County Security Center. Derringer now appeals.


                                    Discussion and Decision
                                            Admission of Evidence

[9]    First, Derringer argues that the trial court erred by admitting the laboratory

       report. “The admission and exclusion of evidence falls within the sound

       discretion of the trial court[.]” Reed v. Bethel, 2 N.E.3d 98, 107 (Ind. Ct. App.

       2014). Reversal of a trial court’s decision to admit evidence is appropriate only

       where the decision is clearly against the logic and effect of the facts and

       circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997). “Moreover, we

       will sustain the trial court[’s] [decision on the admission of evidence] if it can be

       done on any legal ground apparent in the record.” Jester v. State, 724 N.E.2d

       235, 240 (Ind. 2000).


[10]   Derringer contends that the State failed to lay an adequate foundation for the

       laboratory report’s veracity. Specifically, Derringer argues that the State did not

       establish a chain of custody of the laboratory report to prove that it had not

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1565 | February 5, 2020   Page 4 of 9
       been tampered with and, consequently, that admission of the report was

       erroneous.


[11]   For laboratory reports, “[t]he State is required to show a chain of custody for

       the purpose of showing the unlikelihood of tampering, loss, substitution or

       mistake.” McCotry v. State, 722 N.E.2d 1265, 1267 (Ind. Ct. App. 2000).

       “However, to show a chain of custody, the State need only provide a

       ‘reasonable assurance’ that the evidence was undisturbed as it passed from the

       custody of one person to the next.” Id. (quoting Kennedy v. State, 578 N.E.2d

       633, 639 (Ind. 1991)). So long as the State presents evidence that “strongly

       suggests” the exact whereabouts of the evidence at all times, there is a sufficient

       chain of custody. Id. “To mount a successful challenge to the chain of custody,

       one must present evidence that does more than raise a mere possibility that the

       evidence may have been tampered with.” Troxell v. State, 778 N.E.2d 811, 814

       (Ind. 2002).


[12]   Additionally, pursuant to Indiana Code section 35-36-11-3, “[i]f the defendant

       wishes for the person who prepared the laboratory report to be present at the

       trial for cross-examination, the defendant must file a demand for cross-

       examination not later than ten (10) days after the defendant receives the notice

       filed under section 2 of this chapter[.]”


[13]   In its assessment of the State’s evidence regarding the chain of custody of the

       laboratory report, the trial court held as follows:




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1565 | February 5, 2020   Page 5 of 9
               Exhibit 1, the top page is Indiana State Department of Toxicology
               and has Indiana State Department of Toxicology case number on
               it 18-01233. That’s carried over to the NMS lab report cite number
               18-01233, and it’s – appears to me that the protocol was used to
               send this to the Department of Toxicology in Indiana. And I think
               it’s been known that the State Department of Toxicology has been
               using an out-of-state lab on some things. But I see the report from
               NMS and what came back from the Department of Toxicology
               has the same patient ID number on it. And [Derringer] did not
               request the opportunity to cross-examine the people doing the test
               – the testing itself as required.

               So therefore, the test is admissible, and I believe that there’s a
               sufficient foundation at this point in time to allow the report in
               because the protocol was followed. It was sent to the Indiana State
               Department of Toxicology, sent to a Pennsylvania lab, but it still
               has the same patient number on it. It was returned to the
               Department of Toxicology, apparently, and then given to – the
               evidence was the State or the prosecuting attorney’s investigator,
               and then to the deputy. So the objection will be overruled.


       Tr. Vol. II p. 91-92.


[14]   The record shows that based on his expertise and experience with toxicology

       reports, Deputy Hartzell provided reasonable assurance that the evidence was

       undisturbed as it passed from one person to the next. Moreover, the trial court

       reviewed the laboratory report and noted that Derringer had already waived

       any opportunity to contest the report’s validity because he did not file a demand

       to confront and cross-examine the preparer from the laboratory. At every step

       of the process, there was direct and undisputed testimony about which

       individual or entity had control over the blood sample as it passed through

       multiple hands.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1565 | February 5, 2020   Page 6 of 9
[15]   Irrespective of this analysis and the trial court’s reliance on Deputy Hartzell’s

       testimony, Derringer still insists that “[t]he court was not provided with

       information regarding the storage of the blood sample, its transportation to the

       out-of-state laboratory or the practices of the out-of-state laboratory to ensure

       that the blood was properly analyzed.” Appellant’s Br. p. 9-10. However, the

       State was not required to describe every exact detail of the location of the blood

       sample as described in the laboratory report. Derringer’s attempt to have this

       Court independently search for new evidence disproving the existence of the

       chain of custody is nothing more than a request that we reweigh the evidence,

       which we may not do. Thus, we find that the trial court did not err when it

       concluded that the State had met its burden in showing the chain of custody.

       Consequently, the trial court did not err by admitting the laboratory report.


                                               Closing Argument

[16]   Next, Derringer argues that the trial court erred by precluding Derringer’s

       counsel from making a specific closing argument. “The proper scope of closing

       argument is within the trial court’s sound discretion.” Walls v. State, 993 N.E.2d

       262, 269 (Ind. Ct. App. 2013). A trial court errs in its decision regarding a

       closing argument only if the decision is clearly against the logic and effect of the

       facts and circumstances before it. Id. “In seeking reversal of a conviction, it is

       incumbent upon the appellant to establish not only the trial court’s [error] but

       also any resulting prejudice to his or her rights.” Id.


[17]   Specifically, Derringer contends that his counsel should have been able to

       contest the veracity of the laboratory report because the State failed to bring in
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1565 | February 5, 2020   Page 7 of 9
       the preparer of the laboratory report. In other words, Derringer brings up the

       same argument that he made with regards to the admission of the laboratory

       report—namely, that “because the trial court restricted closing argument on an

       important part of the defense’s argument, essentially that the laboratory report

       needed interpretation to prove intoxication beyond a reasonable doubt, the

       error was not harmless.” Appellant’s Br. p. 11.


[18]   We find little merit to Derringer’s argument. As we have already mentioned,

       the trial court is afforded sound discretion in how it defines the scope of closing

       arguments. In this instance, the trial court found that Derringer’s counsel

       should not be permitted to essentially relitigate an issue that had already been

       resolved. During the earlier discussion on whether the laboratory report should

       be admitted, the trial court already determined that the State was not required

       to bring in the preparer of the laboratory report to verify its findings because

       Derringer had not requested it. In other words, the trial court was well within

       its right to curtail Derringer’s counsel’s statements on this matter so as not to

       confuse or mislead the jury regarding a settled topic. Further, Derringer proffers

       no evidence showing that the trial court’s decision prejudiced his rights.


[19]   Derringer does cite Indiana Code chapter 35-36-11—the Lab Report Statute—

       as overarching proof that the State did not follow the proper procedure for

       admission of the laboratory report. However, Derringer neglects to include any

       discussion about the sections of the statute relating to notice of intent, demand

       for cross-examination, and waiver of rights—issues that the trial court already

       addressed and ruled upon earlier in the trial. Vague recitation of Indiana law

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1565 | February 5, 2020   Page 8 of 9
       without any further analysis or supporting caselaw does not a legal argument

       make. Thus, we find that the trial court did not err when it precluded

       Derringer’s counsel from making this specific closing argument.


[20]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1565 | February 5, 2020   Page 9 of 9
