 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,
                                                               Jan 22 2014, 9:39 am
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:
DORI NEWMAN                                          GREGORY F. ZOELLER
Noblesville, Indiana                                 Attorney General of Indiana

                                                     CHANDRA K. HEIN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TABITHA EDWARDS,                                     )
                                                     )
       Appellant,                                    )
                                                     )
           vs.                                       )       No. 29A02-1305-CR-444
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee.                                     )

                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                               The Honorable Gail Bardach
                             Cause No. 29D06-1208-FD-8299


                                          January 22, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

       MATHIAS, Judge
       Tabitha Edwards (“Edwards”) was convicted in Hamilton Superior Court of Class

A misdemeanor operating a vehicle while intoxicated endangering a person and Class D

felony operating a vehicle while intoxicated with a prior within five years. Edwards

appeals and argues that the trial court abused its discretion in excluding certain evidence

proffered by the defense.

       We affirm.

                             Facts and Procedural History

       On August 30, 2012, around 1:45 a.m., Fishers Police Sergeant Mike Janes

(“Sergeant Janes”) was patrolling in his cruiser on I-69 southbound near the 116th Street

exit, in a construction zone with a speed limit of 55 miles per hour. He noticed in his

rearview mirror that a vehicle was approaching him at a high rate of speed. He estimated

that this vehicle was traveling well in excess of the speed limit and, after activating his

rear radar unit, confirmed that the car was traveling at 75 miles per hour. Sergeant Janes

then initiated a traffic stop of the vehicle. He approached the driver’s side and identified

Edwards as the driver of the vehicle and its sole occupant. While Sergeant Janes was

speaking with Edwards, he noticed that her dexterity was poor and that her eyes were red

and watery. He asked Edwards if she had consumed any alcohol, and she stated that she

had begun drinking around 7:00 p.m. that night and had stopped drinking around 9:00

p.m.

       Sergeant Janes then radioed dispatch for another unit to assist him in administering

to Edwards field sobriety tests. Shortly thereafter, when two additional officers arrived at



                                             2
the scene of the traffic stop, Sergeant Janes asked Edwards to exit her vehicle. He

noticed that, as she did so, she staggered and leaned against the car.

       Sergeant Janes first administered the horizontal gaze nystagmus test, which

Edwards failed.    Sergeant Janes then initiated the nine-step field sobriety test, but

Edwards indicated that one of her legs was shorter than the other, and Sergeant Janes did

not require her to complete the test. Sergeant Janes next administered two divided

attention tests—the first required Edwards to recite the alphabet beginning with the letter

C and ending with the letter N; the second required Edwards to count backwards from

103 to 78. During the first test, Edwards skipped the letter M. Edwards successfully

completed the second test.

       Edwards then agreed to submit to a blood test. Sergeant Janes, who is also a

certified paramedic authorized to administer blood tests, transported Edwards to the

Fishers Police Department and drew her blood at 2:41 a.m. The blood test results

indicated that Edwards’s blood alcohol content was .09.

       On August 30, 2012, the State charged Edwards with Count I, operating a vehicle

while intoxicated endangering a person, a Class A misdemeanor. On the day of trial,

April 9, 2013, the State amended the charging information to include Count II, operating

a vehicle with an alcohol concentration equivalent (“ACE”) of .08 or more, a Class C

misdemeanor; Count III, operating a vehicle while intoxicated with a prior within five

years, a Class D felony; and Count IV, operating a vehicle with an ACE of .08 or more

with a prior within five years.

       At her jury trial, Edwards presented the testimony of pharmacist Dr. John Belloto

                                             3
(“Dr. Belloto”). Dr. Belloto testified that he had reviewed Edwards’s gas chromatograms

and that the chromatograms indicated to him that fermentation had taken place such that

the results of the blood test may have been inaccurate and that this fermentation can

cause a blood test margin of error of up to twenty-five percent.

       During Dr. Belloto’s testimony, the trial court refused to admit four documents

offered by Edwards: Defendant’s Exhibits B, C, D, and E. Edwards argued that, although

the documents contained hearsay, they should be admitted under the business records

hearsay exception, since they were produced by the Indiana Department of Toxicology.

The trial court did not admit the documents, finding that they contained inadmissible

hearsay and were not properly authenticated. The court stated:

       [Dr. Belloto] did not say anything at all about the Department of
       Toxicology. He said that he reviewed these documents . . . He did not say
       where they came from.
                                            ***
       They have not been adequately identified. There is no foundation laid for
       their admissibility at this point. I’m not saying you can’t do that, but you
       haven’t done it yet.

Tr. pp. 245-46. Edwards, however, failed to elicit testimony from Dr. Belloto sufficient

to authenticate the documents.

       The jury found Edwards guilty on Counts I and II. Edwards pleaded guilty to

counts III and IV. Due to concerns related to double jeopardy, the trial court entered

judgments of conviction on Counts I and III only. On May 7, 2013, the trial court

ordered Edwards to serve three years in the Department of Correction, with 185 days

executed and 180 days served on home detention with electronic monitoring. The trial

court suspended the remaining 730 days of Edwards’s sentence to probation.

                                             4
       Edwards now appeals.

                                 Discussion and Decision

       Edwards claims that the trial court erred in excluding the four documents she

sought to admit through her expert witness, Dr. Belloto.          Questions regarding the

admission or exclusion of evidence are within the discretion of the trial judge and are

reviewed on appeal 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 abuses its 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.

       A testifying expert witness may offer his opinion based in part upon documents

which have not been admitted and which contain inadmissible hearsay where that expert

has sufficient expertise to determine the accuracy and reliability of the information, the

document is of the type which is normally found to be reliable, and the information

contained in the document is the type customarily relied upon by an expert in the practice

of his profession. See Phillips v. State, 179 Ind. App. 517, 523-24, 386 N.E.2d 704, 708

(1979); Faulkner v. Markkay of Indiana, Inc., 663 N.E.2d 798, 800 (Ind. Ct. App. 1996).

However, the Rules of Evidence do not permit the admission of documents relied upon

by an expert witness to prove the truth of matters they contain if those documents are

otherwise inadmissible.     Faulkner, 663 N.E.2d at 800.       In other words, an expert

witness’s reliance on hearsay statements may not simply be used as means for presenting

documents containing inadmissible hearsay to a jury.

       Edwards contends that the trial court abused its discretion in excluding the

                                               5
documents, arguing that “the rule of hearsay does not bar the evidence that Edwards tried

to admit because the witness was an expert and can form opinions based on reliable

hearsay pursuant to Indiana Rules of Evidence 702 and 703.” Appellant’s Br. at 7. We

disagree.

        An offer of proof is required to challenge on appeal a trial court’s ruling denying

admission into evidence proffered testimony or other information.                         Ind. R. Evid.

103(a)(2). “The purpose of an offer to prove is to enable the trial court and this court to

determine the admissibility and relevance of the proffered evidence.” Carter v. State, 932

N.E.2d 1284, 1287 (Ind. Ct. App. 2010). Failure to make an offer of proof waives

appellate review. Id. Here, Edwards did not make an offer of proof sufficient to preserve

the issue for appeal. Therefore, Edwards’s claim of error is waived.

        Waiver notwithstanding, Edwards’s claim still fails. Authentication is a condition

precedent to admissibility. See Ind. R. Evid. 901(1). The requirement of authentication

is “satisfied by evidence sufficient to support a finding that the matter in question is what

its proponent claims.” Id. Here, Edwards asserts that, though Exhibits B, C, D, and E

contained hearsay, 1 the trial court improperly excluded the documents because the

documents were admissible under the business records hearsay exception pursuant to

Indiana Evidence Rule 803(6).2 However, at trial, Edwards, in attempting to introduce



1
  Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is inadmissible
unless it falls under a hearsay exception. Ind. R. Evid. 801; see also Jenkins v. State, 725 N.E.2d 66, 68
(Ind. 2000) (citing Ind. R. Evid. 802). However, hearsay can be admissible under one of several
exceptions, including the business records exception. Ind. R. Evid. 803.
2
  Rule 803(6) provides that “[a] record of an act, event, condition, opinion, or diagnosis [is admissible
hearsay] if:
                                                     6
the documents during Dr. Belloto’s testimony, failed to submit an affidavit or elicit any

testimony demonstrating that Exhibit B, C, D, or E were business records maintained by

the Indiana Department of Toxicology. Rather, Dr. Belloto merely testified that he had

received the documents from Edwards’s counsel and that he assumed that Edwards’s

counsel had received the documents from the State.                     Furthermore, the documents

themselves did not contain any information proving that they were produced by the

Indiana Department of Toxicology. Without any indication of their authenticity, the trial

court properly refused to admit Exhibits B, C, D, and E. Therefore, under these facts and

circumstances, we conclude that the trial court did not abuse its discretion when it refused

to admit the documents Edwards sought to introduce during Dr. Belloto’s testimony.

                                             Conclusion

       For all of these reasons, we conclude that the trial court did not abuse its discretion

in excluding the documents proffered by Edwards at trial.

Affirmed.

BRADFORD, J., and PYLE, J., concur.




       (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(9) or (10) 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.
                                                    7
