Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

P. STEPHEN MILLER                                   GREGORY F. ZOELLER
Fort Wayne, Indiana                                 Attorney General of Indiana

                                                    GEORGE P. SHERMAN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                            Apr 22 2014, 9:13 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

DESMOND E. LEWIS,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 92A05-1306-CR-284
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE WHITLEY SUPERIOR COURT
                          The Honorable Douglas M. Fahl, Judge
                             Cause No. 92D01-1106-CM-290



                                          April 22, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
        Following a jury trial, Desmond E. Lewis was convicted of operating a vehicle while

intoxicated in a manner that endangers a person (“OWI”),1 a Class A misdemeanor.2

Additionally, Lewis was found to have committed two Class C infractions: (1) exceeding

a 60 mph speed limit;3 and (2) unsafe lane movement without a signal.4 On appeal, Lewis

raises the following two issues:

        I.        Whether Lewis was denied his Sixth Amendment right to
                  confrontation when the trial court admitted a DataMaster certificate
                  that was created about sixteen days after the DataMaster was used to
                  calculate Lewis’s blood-alcohol content (“BAC”);5 and

        II.       Whether there was sufficient evidence to sustain Lewis’s conviction
                  for OWI.

        We affirm.

                        FACTS AND PROCEDURAL HISTORY

        On June 5, 2011, around 9:30 a.m., Indiana State Trooper Todd Reed was driving

westbound on U.S. 30, near County Road 600 East, in Whitley County when he observed

a vehicle traveling eastbound at a high rate of speed. The driver of the vehicle was later




        1
            See Ind. Code § 9-30-5-2.
        2
           Lewis was also convicted for operating a vehicle with an alcohol concentration equivalent to at
least .08 of a gram of alcohol per two-hundred-ten liters of his breath as a Class C misdemeanor. See Ind.
Code § 9-30-5-1. However, prior to sentencing, that conviction was merged with his Class A misdemeanor
OWI conviction.
        3
            See Ind. Code § 9-21-5-2 (offense); Ind. Code § 9-21-5-13 (penalty).
        4
            See Ind. Code § 9-21-8-24 (offense); Ind. Code § 9-21-8-49 (penalty).
        5
         As our court noted in Ramirez v. State, “The DataMaster measures the concentration of alcohol
in a suspect’s breath. A subject blows into the machine, and the DataMaster prints an evidence ticket
displaying the subject’s BAC.” 928 N.E.2d 214, 215 (Ind. Ct. App. 2010), trans. denied.

                                                      2
identified as Lewis. After Trooper Reed activated his radar and determined that Lewis’s

vehicle was traveling at 78 mph in a zone designated for 60 mph, Trooper Reed turned

around and headed east on U.S. 30. Once behind Lewis, Trooper Reed clocked the vehicle

going 75 mph and saw Lewis change lanes without signaling. Trooper Reed initiated a

traffic stop, and Lewis pulled his vehicle to the side of the road.

        Upon reaching the vehicle, Trooper Reed noticed an odor of alcohol on Lewis’s

breath. Lewis, who was respectful and cooperative, correctly performed a divided attention

test.   Thereafter, Trooper Reed transported Lewis to the Whitley County Sheriff’s

Department for field sobriety testing. On the way to the Sheriff’s Department, Lewis stated

that he had stopped drinking alcohol around 2:00 a.m., i.e., about seven-and-a-half hours

earlier. Lewis was given, and passed, two field sobriety tests—the walk and turn test and

the one-leg stand test. Trooper Reed then administered a breath test using a DataMaster.

Lewis’s DataMaster printout showed that he had a BAC of .08 of a gram of alcohol per

210 liters of breath.

        Lewis was charged with OWI as a Class A misdemeanor, and with operating a

vehicle with an alcohol concentration equivalent to at least .08 of a gram of alcohol but

less than .15 of a gram per 210 liters of the person’s breath, a Class C misdemeanor. Lewis

was also served with a complaint and summons for having committed the Class C

infractions of speeding and unsafe lane movement.

        Prior to trial, the State filed a motion in limine to prevent the defendant from

admitting at trial 1) any reference to the State being required to introduce expert testimony

and 2) any impermissible vouching testimony regarding the veracity of any defense
                                              3
witness. Appellant’s App. at 121. Following a hearing on the motion, the trial court granted

the State’s motion.

       Trooper Reed is a certified breath test operator. During the jury trial, evidence of

Trooper Reed’s certification to perform the tests was admitted without objection. Tr. at

164; State’s Ex. 1. The State also offered, and the trial court admitted without objection,

two certificates of inspection and compliance for the DataMaster used in Lewis’s chemical

breath test. Tr. at 165-66. The first certificate reflected a routine inspection of the

DataMaster performed on March 16, 2011 (“the First Certificate”), a date less than ninety

days before Lewis was tested. State’s Ex. 2. The second certificate reflected an inspection

of the DataMaster performed on June 21, 2011 (“the Second Certificate”), a date about

sixteen days after Lewis was tested. State’s Ex. 3. Again without objection, the State

admitted a one-page description of the approved method for administering a breath test by

means of a DataMaster, State’s Ex. 4, as well as the DataMaster Evidence Ticket reflecting

that Lewis had a BAC of .08, State’s Ex. 5. Tr. at 167-68.

       A recording of Trooper Reed administering the sobriety tests to Lewis, including

the DataMaster breath test, was admitted at trial. Id. at 178-82. The tape showed Trooper

Reed instructing Lewis to blow into the DataMaster for nine to eleven seconds. Id. at 181.

The State asked Trooper Reed if he knew that the tape actually showed that Lewis blew

into the DataMaster for approximately twenty-four seconds. Id. at 174. After watching

the video at trial, Trooper Reed testified that he thought that Lewis had blown into the

DataMaster for no more than twenty seconds. Id. at 182.


                                             4
       Dr. Alfred Staubus, an expert in the pharmacology and toxicology of alcohol,

testified on Lewis’s behalf. Dr. Staubus testified that the State of Indiana does not take

into consideration “the biological variability for borderline tests.” Id. at 203. He opined

that the length of the submission of a breath sample and the individual biological makeup

of the defendant, including the temperature of an individual, can cause the result of the test

to lack reliability or accuracy. Id. at 195, 200-01. In Dr. Staubus’s opinion, the DataMaster

breath test results should not be relied upon because Indiana does not require that a

“concurrent calibration check” be performed each time a breath test is offered; therefore, a

single breath test from a DataMaster “may or may not be accurate or reliable.” Id. at 210-

12.

       A jury found Lewis guilty as charged. During sentencing, the trial court merged

Lewis’s Class C misdemeanor conviction into his OWI conviction, and entered judgment

of conviction on the Class A misdemeanor OWI. The trial court sentenced Lewis to a one-

year suspended sentence for the Class A misdemeanor and imposed fines for the infractions

of speeding and unsafe lane change. Lewis now appeals.

                             DISCUSSION AND DECISION

                                  I. Confrontation Clause

       Lewis asserts that the trial court erred by admitting the Second Certificate. Lewis

concedes that the First Certificate “was admitted into evidence as a foundational

requirement for the admission of the [DataMaster’s] certified test result. Appellant’s Br.

at 10 (citing Tr. at 166). A certified copy of this certificate constitutes prima facie evidence

that the DataMaster:
                                               5
       (A) was inspected and approved by the state department of toxicology on the
       date specified on the certificate copy; and

       (B) was in proper working condition on the date the breath test was
       administered if the date of approval is not more than one hundred eighty
       (180) days before the date of the breath test.

Ind. Code § 9-30-6-5(c). Our court has said that the admission of such a certificate “is a

safeguard the legislature put in place for the benefit of the defendant.” Jones v. State, 982

N.E.2d 417, 428 (Ind. Ct. App. 2013) trans. denied.

       Lewis objects to the admission of the Second Certificate, contending that it was

testimonial in nature and constituted misleading and incomplete testimony without the

possibility of confrontation. Lewis maintains that, because the Second Certificate was

created after his breath test, it was improper to use it during closing argument to bolster the

accuracy of the DataMaster. Lewis argues that, as a result of the Second Certificate being

admitted, he “was denied his Sixth Amendment right to confront the individuals who

inspected the machine to determine what adjustments, calibration[,] or repairs they were

required to make ten days after the Defendant was administered his test.” Appellant’s Br.

at 8. He also argues that the Second Certificate was “utilized not as a safe guard [sic]

required by the legislature but as a means to vouch for the original testing of the machine.”

Id.

       Lewis notes that he did not understand the testimonial nature of the Second

Certificate until the State made the following rebuttal argument in closing:

       Now, compare and contrast as I asked you initially with the two certifications
       that were performed on this machine by the Indiana University Department
       of Pharmacology and Toxicology. On March the 16th, 2011, this instrument
       is in good operating condition, satisfying the accuracy requirements set out
                                              6
       by the State Department of Toxicology Regulations. Okay? That’s
       approximately a little less than ninety days before the stop of the Defendant.
       And, according to Dr. Staubus, we gotta do that once every hundred and
       eighty days. We sure do. You know what? We did. We did it again. We
       did it ten days after Desmond Lewis was arrested. And, you know what it
       says? The instrument is in good operating condition, satisfying accuracy
       requirements set out by the State Department of Toxicology Regulations.

Id. at 271-72. Lewis contends that this argument acted to bolster the accuracy of the

DataMaster results, yet denied him the right to confront the inspectors who tested the

DataMaster, and maybe even fixed or recalibrated the machine.

       A contemporaneous objection at the time the evidence is introduced at trial is

required to preserve the issue for appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010);

see Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (“The failure to make a

contemporaneous objection to the admission of evidence at trial results in waiver of the

error on appeal.”). “The purpose of this rule is to allow the trial judge to consider the issue

in light of any fresh developments and also to correct any errors.” Brown, 929 N.E.2d at

207. Here, Lewis did not object when the Second Certificate was introduced, in fact, he

affirmatively stated that he had no objection to its admission. Tr. at 166.

       As our Supreme Court recently stated in Brown:

       A claim that has been waived by a defendant’s failure to raise a
       contemporaneous objection can be reviewed on appeal if the reviewing court
       determines that a fundamental error occurred. The fundamental error
       exception is extremely narrow, and 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. The error claimed must either make a fair trial impossible or
       constitute clearly blatant violations of basic and elementary principles of due
       process. This exception is available only in egregious circumstances.

Brown, 929 N.E.2d at 204 (citations omitted) (internal quotation marks omitted).
                                              7
       Lewis’s argument regarding fundamental error is as follows:

       The jury was free to refuse the conclusion of the Defendant’s expert,
       however, by being informed that the instrument was tested 10 days after the
       Defendant was administered the certified test and then to be informed that
       the instrument was still in good working order and that the State exceeded
       their statutory duty, is misleading and misconstruing the real purpose of the
       second test [sic]. In a case which is not close, such action may have no
       [e]ffect, however, in a case of this nature [where the BAC is .08], the finding
       of guilty may well have turned on such misinformation.

Appellant’s Br. at 16.

       Assuming without deciding that the use of the Second Certificate during closing

argument was error, it was not fundamental error. The evidence of the two certificates was

relevant to whether the DataMaster was in good working condition when it was used.

Lewis’s defense focused not on the condition of the particular DataMaster utilized in this

case, but instead, on the validity and reliability of a borderline BAC from any Indiana

DataMaster. Dr. Staubus testified that the breath test results were suspect not because of

any perceived malfunction of the DataMaster but because: (1) Indiana does not take into

consideration the biological variability for borderline tests when, as happened here, the

subject blows into the DataMaster for twenty-four seconds instead of six seconds, tr. at

200; (2) Indiana does not require that a “concurrent calibration” check be performed each

time a breath test is offered, id. at 207-12; and (3) Indiana does not require that an

individual submit two breath tests, id. at 212.

       The jury heard that Lewis was stopped because he was speeding and made an unsafe

lane change, that he had an odor of alcohol on his breath, and that he admitted he had been

drinking but that he stopped more than seven hours earlier. Tr. at 158, 160, 162. The jury

                                              8
also heard that Lewis was respectful and cooperative with Trooper Reed, that he passed a

sobriety test at the scene, and that he passed two additional sobriety tests after he was taken

to the Sheriff’s Department. Id. at 160, 161-62. Instruction Number 13 advised the jurors

that a BAC of .08 is prima facie evidence of intoxication, but that that evidence can be

rebutted. Id. at 277. The jury was also instructed that “you may reject such evidence [of

the BAC] even if it is not rebutted.” Id. Dr. Staubus testified regarding the errors that can

arise in Indiana through the testing protocol, especially in a borderline BAC.

       At most, the Second Certificate could only have bolstered the State’s contention that

the DataMaster used on Lewis was in proper working condition. The Second Certificate

did not offer any evidence regarding whether the State’s DataMaster protocol is adequate

to protect a defendant who has a borderline BAC. The Second Certificate also did not

contradict any of Dr. Staubus’s expert opinions. Lewis received a fair trial. The admission

of the Second Certificate did not constitute fundamental error.

                         II.    Sufficiency of Evidence for OWI

       Lewis argues that the State failed to present sufficient evidence to support his OWI.

When reviewing a claim of insufficient evidence, “an appellate court considers only the

evidence most favorable to the verdict and any reasonable inferences that may be drawn

from that evidence. If a reasonable finder of fact could determine from the evidence that

the defendant was guilty beyond a reasonable doubt, then the verdict will be upheld.”

Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (citations omitted) (internal quotation

marks omitted). An appellate court does not reweigh the evidence or judge the credibility

of witnesses. Id. (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)). “These
                                              9
evaluations are for the trier of fact, not appellate courts.” Id. In essence, a reviewing court

assesses only whether the verdict could be reached based on reasonable inferences that may

be drawn from the evidence presented. Id. (citing Kidd v. State, 530 N.E.2d 287, 287 (Ind.

1988)).

       In order to convict Lewis of OWI as charged here, the State had to prove that he (1)

operated a vehicle, (2) while intoxicated, and (3) in a manner that endangered a person.

See I.C. § 9-30-5-2(b). The fact that Lewis was operating the vehicle is not in question;

rather his challenge to the conviction is that the State failed to show both that he was

intoxicated and that he endangered a person.

                               A.     Element of Intoxication

       Trooper Reed testified at trial that he noted an odor of alcohol on Lewis’s breath

when he stopped him and that Lewis admitted he had been drinking earlier that morning

but had stopped around 2:00 a.m. Tr. at 159-60. As further evidence of intoxication, the

State introduced a DataMaster Evidence Ticket (“Evidence Ticket”). State’s Ex. 5. The

Evidence Ticket, which was created by Trooper Reed on the morning of the stop, reflected

that Lewis had a .08 BAC. At the close of trial, the trial court read to the jury Final

Instruction No. 13; Lewis did not object. That instruction set forth:

       Prima facie means that quantity and quality of evidence necessary to prove a
       fact. Prima facie evidence creates an inference that the Defendant was
       sufficiently under the influence of intoxicating liquor to lessen his driving
       ability within the meaning of the law. This inference is not conclusive,
       however, and may be rebutted by other evidence. Also, you may reject such
       evidence even if it is not rebutted. Prima facie evidence of intoxication
       includes evidence that, at the time of the alleged violation, there was at least
       eight-hundredths percent of alcohol by weight in grams in either 1) one
       hundred milliliters of a person’s blood; or 2) two [hundred] and ten liters of
                                              10
       a person’s breath. Prima facie evidence means evidence which, if . . .
       uncontradicted or unchallenged may stand alone as sufficient to prove a fact.

Tr. at 277-78.

       Dr. Staubus testified as an expert witness for Lewis. His testimony was aimed at

challenging the validity of the reported .08 BAC on the Evidence Ticket and undermining

the jury’s confidence in the prima facie evidence of intoxication. The jury’s verdict that

Lewis was guilty of OWI revealed that the jury’s confidence in the BAC result was not

undermined. The Evidence Ticket, reflecting the .08 BAC, was sufficient to support the

jury’s finding that Lewis was intoxicated.

       Lewis seems to argue that there was insufficient evidence on the element of

intoxication because Trooper Reed failed to follow the DataMaster protocol. Appellant’s

Br. at 16-17. Citing to State’s Exhibit 4—a form that sets forth the six-step “approved

method” for administering the DataMaster breath test—Lewis contends that Trooper Reed

placed a check mark only next to the first five steps, but did not check off the sixth step.

State’s Ex. 4. The sixth step instructed: “When the printer stops, remove the evidence

ticket or report sheet from the printer and check the report printed on the evidence ticket or

report sheet for the numerical ethanol subject sample and correct date and time.” State’s

Ex. 4. Lewis maintains that Trooper Reed’s failure to place a check mark next to the sixth

step means that a key element of the protocol was not followed, and therefore, there was

insufficient evidence that Lewis had a BAC of .08.

       As support for his position, Lewis cites to United States v. Meadows, 91 F.3d 851

(7th Cir. 1996) and Bishop v. State, 638 N.E.2d 1278 (Ind. Ct. App. 1994)—both cases

                                             11
where a defendant’s conviction was overturned after finding insufficient evidence to

sustain the convictions. Those cases, however, are distinguishable from the present case.

       In Meadows, the Seventh Circuit reversed both of the defendant’s firearm-related

convictions after finding that there was insufficient evidence to prove that Meadows’s

weapon contained a “rifled bore,” which was an element of the offense. Meadows, 91 F.3d

at 853. In Bishop, our court reversed the defendant’s conviction for “operating a vehicle

while his driving privileges were suspended for being an habitual traffic offender.” As an

element of the offense, the State had to prove that “defendant knew his driving privileges

had been suspended as a result of having been determined to be an habitual traffic

offender.” Bishop, 638 N.E.2d at 1279. “Proof of mailing the notice [was] an evidentiary

prerequisite to proving that a suspension for being an habitual traffic law violator [was]

valid. Id. at 1280. “It logically follow[ed] that proof of the content of the notice mailed

[was] an evidentiary prerequisite to a valid suspension.” Id. Because the “evidentiary

prerequisite” did not appear in the record, we reversed Bishop’s conviction on the basis

that the “State ha[d] failed to establish the element of a valid suspension.” Id. Here, the

State did not have to prove as an element of the offense that Trooper Reed placed a check

mark next to each step. Instead, the State merely had to prove that Trooper Reed followed

the appropriate procedures when he arrived at Lewis’s .08 BAC.

       In response to the State’s questioning, Trooper Reed testified that he followed

protocol when he obtained Lewis’s BAC.

       Q      As part of the testing protocol, Trooper . . . is there . . . an approved
              protocol for the, uh, administration of a breath test to, uh, an
              individual?
                                             12
      A      There is.
      Q      And, what’s that called?
      A      It’s called the approved method.
      Q      And, when you . . . uh, when you’re conducting an OWI investigation,
             an operating while intoxicated investigation, uh, is it your habit and
             practice to follow that protocol?
      A      It is.
      Q      In fact, you’re required to follow that protocol. Are you not?
      A      Absolutely.
      Q      Okay. Did you follow that protocol in conjunction with Mr. Lewis’s,
             uh, arrest?
      A      I did.
      Q      I’m [going to] hand you what I’ve marked as State’s Exhibit 4 and ask
             you to identify that document, sir.
      A      This is the Approved Method for Administration of a Breath Test
             Using a BAC DataMaster with a Keyboard. It has, um, my
             handwriting at the top designating Desmond E. Lewis and
             checkmarks to the left.
      Q      Okay. And, is that the document you used to administer, uh, the steps
             used to go through to administer the . . . the test to Mr. Lewis?
      A      It is.

Tr. at 166-67. At trial, Lewis did not claim that the BAC test results were placed into

question because Trooper Reed failed to place a check mark next to step six. Additionally,

on appeal, Lewis neither cites to nor can we find any authority that (1) requires a

DataMaster operator to check each step, or (2) conditions the accuracy of the Evidence

Ticket on whether the DataMaster operator checked each step. Notwithstanding the

absence of a check mark, Trooper Reed testified that he followed the appropriate protocol.

Lewis’s request that we find insufficient evidence because the approved protocol was not

followed is merely a request that we reweigh the evidence. This we cannot do.

                            B.     Element of Endangerment

      Lewis’s second challenge to the sufficiency of the evidence is a claim that the State

failed to prove endangerment. Specifically, Lewis avers that while he may have been
                                           13
speeding and may have improperly changed lanes, this is insufficient to show

endangerment. Appellant’s Br. at 19. We disagree.

      It is true that a showing of intoxication without more is inadequate to prove

endangerment. Vanderlinden v. State, 918 N.E.2d 642, 645 (Ind. Ct. App. 2009), trans.

denied. Contrary to Lewis’s argument, however, the mere fact that he was driving eighteen

miles over the speed limit was sufficient to prove the endangerment element. Id. at 646.

The Court in Vanderlinden held:

      Although the only independent evidence of endangerment presented by the
      State was Vanderlinden’s warning for speeding, that evidence is sufficient to
      support the conviction [for OWI]. For example, in Boyd v. State, 519 N.E.2d
      182, 184 (Ind. Ct. App. 1988), we held that speeding “alone demonstrate[d]
      impaired judgment and ability of such a nature as to endanger others,” despite
      a lack of external signs of intoxication such as slurred speech, lack of
      dexterity, or failed sobriety tests. See also Hughes v. State, 481 N.E.2d 135
      (Ind. Ct. App. 1985) (observing that defendant was driving in proper lane,
      was not weaving, had no speech problems, satisfactorily performed dexterity
      tests, passed field sobriety tests, and other than speeding exhibited no
      aberrant driving). Thus, the excessive speed is evidence that Vanderlinden’s
      manner of operating her vehicle could have endangered a person.
      Accordingly, Vanderlinden’s excessive speed, regardless of the driving
      conditions or her proximity of others, is sufficient to establish endangerment
      of a person and support her conviction.

Vanderlinden, 918 N.E.2d at 646.

      Lewis argues that the State’s failure to place into evidence the condition of the road,

the area surrounding that part of US 30 where the Defendant was driving, and the traffic

conditions on that road at 9:30 a.m. make it impossible to determine if Lewis endangered

anyone. Appellant’s App. at 19. We disagree. In Vanderlinden, regardless of the driving

conditions or her proximity to others, the defendant was found to have “endangered a

person” by going sixteen miles over the speed limit. Vanderlinden, 918 N.E.2d at 646.
                                            14
Like the court in Vanderlinden, we “decline to determine the precise extent of speeding, in

the absence of other factors, necessary to show endangerment.” Id. at 646 n.1. We do

conclude, however, that evidence that Lewis drove eighteen miles over the posted speed

limit was sufficient evidence of endangerment. Lewis’s failure to signal before making a

lane change also supported the endangerment element, as Lewis’s failure in this regard

could have endangered himself or another motorist. Finding sufficient evidence of the

elements of intoxication and endangerment, we affirm Lewis’s conviction.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




                                            15
