Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any           Jan 30 2014, 7:32 am
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:

BENJAMEN W. MURPHY                              GREGORY F. ZOELLER
Law Office of Ben Murphy                        Attorney General of Indiana
Merrillville, Indiana
                                                JOSEPH Y. HO
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JOHN KRYZA,                                     )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 64A05-1305-CR-239
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE PORTER SUPERIOR COURT
                          The Honorable Julia M. Jent, Judge
                           Cause No. 64D03-1205-CM-4677



                                     January 30, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
        In this case, appellant-defendant John Kryza told the arresting police officer, who

arrived at the scene of an accident on a county road in Porter County, that he drank three

beers and struck a deer with his vehicle. Following his convictions for several drunk

driving-related offenses, Kryza raises a number of issues, challenging the trial court’s

admission of certain evidence and the exclusion of other evidence, including (1) the trial

court’s propriety of excluding the Porter Emergency Medical Services no transport and/or

refusal of service report (medical report); whether: (2) Kryza’s toxicologist was

improperly precluded from testifying about the alleged defects and shortcomings of the

DataMaster machine and test; (3) it was proper for the breath test operator to render an

opinion regarding the accuracy of the breath test results; (4) the trial court abused its

discretion excluding certifications from other DataMaster machines that were not actually

used in this case; and (5) the trial court’s admission of certifications of compliance of the

DataMaster instrument violated Kryza’s right to confrontation under the Sixth

Amendment to the United States Constitution.

        Concluding that Kryza waived several issues because he did not make an offer of

proof regarding the admission of evidence, that the breath test officer did not testify

directly that Kryza was innocent or guilty of the charged offenses, that Kryza’s right to

confrontation was not violated, and finding no other error, we affirm the judgment of the

trial court.




                                             2
                                          FACTS

       On May 6, 2012, at approximately 4:30 a.m., the Porter County Sheriff’s

Department received a 911 call regarding a vehicular crash in the area of County Road

450 West and 100 South.

       Officer Thomas Blythe responded to the call and observed a Nissan Maxima lying

on its roof in a field off the roadway. Officer Blythe then noticed an individual, who was

later identified as Kryza, looking at the vehicle from the road. Officer Blythe noticed that

Kryza had fresh wounds on his hands and was bleeding. Kryza informed Officer Blythe

that he was the driver of the vehicle, had struck a deer, and admitted that he drank three

beers earlier that evening. Kryza produced his driver’s license and vehicle information.

       Officer Blythe noticed that Kryza exhibited several signs and symptoms of

intoxication, including the odor of alcohol on Kryza’s breath, bloodshot eyes, and

unsteady balance. Porter Emergency Services personnel responded to the scene, placed

Kryza in an ambulance, and examined him for injuries. Kryza refused to be transported

to the hospital for further treatment.

       After Kryza exited the ambulance, he complied with Officer Blythe’s request to

submit to standardized field sobriety tests. Officer Blythe administered the horizontal

gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg-stand test. Kryza

failed all three tests. Officer Blythe administered a portable breath test and based on the

results, Officer Blythe concluded that he had probable cause to believe that Kryza

committed the offense of operating a motor vehicle while intoxicated.

                                             3
           In accordance with departmental procedure, Officer Blythe read Indiana’s Implied

Consent law to Kryza, after which Kryza agreed to take a chemical test. At 5:06 a.m.,

Officer Blythe checked Kryza’s mouth and noticed that there were no foreign objects in

it. Officer Blythe then transported Kryza to the Porter County Jail. When they arrived at

the jail at approximately 5:25 a.m., Officer Blythe again examined Kryza’s mouth and

saw no foreign objects.

           At 5:33 a.m., Officer Ronald Chapman administered a breath test to Kryza using

the DataMaster machine. It was subsequently determined that the machine was certified

and in proper working condition on April 16, 2012, which was six weeks before the test

was administered. The instrument was also certified and found to be in working order on

September 12 and 18, 2012. The breath test indicated that Kryza had an ACE of .08 per

210 liters of breath. As a result, Officer Blythe arrested Kryza for operating while

intoxicated and left him in the custody of the Porter County Jail.

           On May 9, 2012, the State charged Kryza with Count I, operating a vehicle while

intoxicated (OWI) in a manner that endangers a person,1 a class A misdemeanor, Count

II, OWI with an alcohol concentration equivalent (ACE) of at least .08 grams but less

than .15 grams of alcohol,2 a class C misdemeanor, and Count III, OWI,3 a class C

misdemeanor.


1
    Ind. Code § 9-30-5-2(b).
2
    I.C. § 9-30-5-1(a).
3
    I.C. § 9-30-5-2.
                                               4
       Prior to trial, the State filed three motions in limine, and the trial court conducted a

hearing on those motions. The first motion sought to prevent Kryza’s expert witness and

toxicologist, Dr. John Bederka, from testifying as to the reliability of the DataMaster

machine. The trial court determined that Dr. Bederka lacked knowledge and experience

about the DataMaster instruments, and was therefore not permitted to offer his opinion

regarding the use and accuracy of the DataMaster instrument.

       The State also sought to exclude Dr. Bederka’s testimony on the grounds that he

was not qualified to testify that an individual’s “breath score could change over time due

to the test being performed within three hours.” Tr. p. 2-21. Kryza countered that Dr.

Bederka was qualified to testify based upon his education and experience about how

alcohol affects the body and argued that because Dr. Bederka was a toxicologist, he was

qualified to testify about the science regarding the DataMaster.

       The State also sought to exclude the admission of the medical report on the basis

that it was hearsay and that a witness had to be present and be subjected to cross-

examination. Moreover, the State pointed out that Kryza disclosed the medical report on

the evening prior to trial. Kryza maintained that the medical report was a certified

business record and, therefore, was an exception to the hearsay rule. Accordingly, it did

not contain expert opinion evidence that required the witness to appear and testify.

       The trial court determined that Dr. Bederka could testify as to how alcohol

metabolizes, but precluded him from offering testimony and other evidence about the

accuracy of the DataMaster machine and tests. The trial court further refused to admit

                                              5
the medical report into evidence, which stated that “as best that can be determined by the

EMT/Paramedic, the patient is of sound mind and competent. The patient does not

appear to be impaired by drugs or alcohol, has normal mental status, normal speech and

appropriate thinking.” Tr. p. 28. Because Kryza had not produced the document until the

evening before trial, the State was prevented from subpoenaing the paramedic who made

the statements that were recorded in the form. Kryza told the trial court that he would

make an offer of proof regarding the medical report during trial, but he never did so.

       At Kryza’s jury trial that commenced on April 11, 2013, Officer Blythe testified

that he had attended fifteen weeks of training at the Northwest Indiana Law Enforcement

Academy, which included two days of standardized field sobriety testing training.

During his training, Officer Blythe learned how to administer several field sobriety tests.

Officer Blythe also learned to recognize the various indicators of intoxication, including

watery and bloodshot eyes, slurred and confused speech, unsteady balance, and the odor

of alcoholic beverages. Officer Blythe testified that, during his three-year career, he had

performed nearly eighty OWI investigations, of which approximately forty-five resulted

in arrests.

       Officer Blythe testified that after Kryza made the admissions about drinking to

him, Kryza stated that he had no physical conditions that might influence the

standardized field sobriety tests or render him incapable to perform the tests.          As

discussed above, Kryza failed all three field sobriety tests and agreed to submit to a

chemical test sample. Officer Blythe stated that the road Kryza was driving on was well-

                                             6
traveled, and that it was unlikely that someone could have suffered an accident on that

road without it being reported within an hour.

       Officer Chapman, the officer who administered the DataMaster test on Kryza,

testified that prior to becoming a breath test operator, he underwent initial training of

twelve hours and, afterwards, would undergo recertification training every two years.

Officer Chapman also testified that he was certified to operate the DataMaster

instrument. Officer Chapman stated that, in light of his experience and knowledge,

DataMaster instruments similar to the one he used in this case were used throughout

Indiana.    Officer Chapman testified that, pursuant to his training, a twenty-minute

observation period allowed the residual alcohol in the mouth of the subject to dissipate so

as to ensure an accurate blood alcohol result. Officer Chapman also testified that he used

DataMaster Instrument 990170 to administer Kryza’s test.

       Kryza did not object when the trial court took judicial notice of the approved

method, and he did not raise any issues in administering the breath test to Kryza. Officer

Chapman also testified that each DataMaster instrument must be inspected, approved,

and certified once every six months or 180 days.

       The State introduced documentation that Instrument 990170 was certified on April

16, 2012, and again on September 18, 2012. Kryza objected on confrontation grounds

that the individual who certified the DataMaster on these two dates was not present to

testify about the certification.   The trial court overruled Kryza’s objection.        The

DataMaster evidence ticket showed that Kryza’s ACE at 5:33 a.m. on May 6, 2012, was

                                            7
.08 grams per 210 liters of breath. Officer Chapman testified that “based upon [his]

training and experience,” he did not “have [a] doubt as to the accuracy of the defendant’s

blood alcohol results.” Tr. p. 118. At this point, the following exchange occurred:

       Kryza’s Counsel: Judge, I’m going to object this is an ultimate issue, he can’t
       give an opinion as to the ultimate issue whether it’s inaccurate, that’s for the jury
       to decide.

       By the Court: He can give his opinion Counsel. As long as it’s understood that
       [it is] his opinion. Go ahead.

Tr. p. 118-19.

       Kryza also attempted to introduce certifications of compliance for three different

DataMaster instruments that had not been used in the instant case. The State objected to

the documents that involved the other machines on relevancy grounds, and the trial court

sustained the State’s objection. Kryza claimed that Instrument 990170 and the other

three DataMaster instruments were all certified on April 16, 2012 by Justus Littlejohn,

and although the other three DataMaster instruments were then certified six months later

on October 12, 2012, as mentioned above, Instrument 990170 was certified twice—only

a week apart—in September 2012. Kryza stated that he “would just like to offer these as

a part of my earlier confrontation objection.” Tr. p. 130. The State rested after Officer

Chapman’s testimony. The trial court also denied Kryza’s motion for a directed verdict

on the operating while intoxicated endangering a person charge.

       Outside the jury’s presence, Kryza made an offer of proof as to Dr. Bederka’s

qualifications to testify as an expert regarding the DataMaster instrument. Dr. Bederka


                                             8
testified about his qualifications, and stated that twenty years ago he authored an article

regarding the detection of alcohol in a person’s body. Although Dr. Bederka never

explicitly testified what the article was about, he stated that he examined the data of other

scientists who had examined breath test instruments. Dr. Bederka stated that the article

was “peer reviewed” by “a scientist who was [his] boss at the time” and a “librarian.” Id.

at 149. Dr. Bederka made the following remarks about the methodologies that he used in

authoring the article:

       And the table that I just referenced that had the wide range of blood/breath ratio, I
       took the data from several articles if I recall, and put the ranges on to them of plus
       or minus five percent (5%) which is what I think I have in the article. So, all of
       the data in there were data that I either extracted directly or changed a little. I
       might have put a line on a figure where there wasn’t a line before, but I referenced
       the sources of all of the things that I used.

Tr. p. 150-51.

       Dr. Bederka admitted that he has never performed any empirical research with

DataMaster instruments, and that the “only thing” he has done with DataMaster

instruments [was] that he “bought their manual and they sent it to [him] about . . . fifteen

years ago maybe.” Tr. p. 153. Dr. Bederka could not testify whether any of the data

relied upon in his article was gathered from DataMaster instruments, and could not

identify all the breath test technologies that are used in the articles he cited. The trial

court affirmed its earlier decision and ruled that Dr. Bederka could not testify as an expert

witness with regard to the DataMaster instrument.




                                             9
       During trial, Kryza did not offer the medical evidence form into evidence, which

was the subject of one of the State’s third motions in limine.      Following a jury trial,

Kryza was found not guilty as to Count I, but guilty of Counts II and III. On April 30,

2013, the trial court merged Counts II and III, and sentenced Kryza to sixty days in the

Porter County Jail with ten days executed and the remainder suspended. Kryza now

appeals.

                             DISCUSSION AND DECISION

                                  I. Standard of Review

       In reviewing Kryza’s claims of error, we initially observe that the trial court has

broad discretion in ruling on the admission or exclusion of evidence. Kimbrough v.

State, 911 N.E.2d 621, 631 (Ind. Ct. App. 2009).          The trial court’s ruling on the

admissibility of evidence will be disturbed on review only upon a showing of an abuse of

discretion. Conrad v. State, 938 N.E.2d 852, 855 (Ind. Ct. App. 2010). An abuse of

discretion occurs when the trial court’s ruling is clearly against the logic, facts, and

circumstances presented. Oatts v. State, 899 N.E.2d 714, 719 (Ind. Ct. App. 2009). We

will affirm the trial court on any legal basis that is sustainable by the record. Crocker v.

State, 989 N.E.2d 812, 818 (Ind. Ct. App. 2013), trans. denied.

       We also note that the erroneous admission of evidence is subject to a harmless

error analysis. Ind. Trial Rule 61. The erroneous admission of evidence is harmless

when there is substantial independent evidence of guilt such that it is unlikely that the

erroneously admitted evidence played a role in the conviction. Greenboam v State, 766

                                            10
N.E.2d 1247, 1250 (Ind. Ct. App. 2002). On the other hand, reversal is warranted when

the record reveals that the erroneously admitted evidence was likely to have prejudiced

the jury such that it contributed to the guilty verdict. Id.

        As for Kryza’s confrontation argument under the Sixth Amendment to the

Constitution, we note that the admission of testimonial statements by a declarant who is

absent from trial and therefore not subject to cross-examination by the accused is

generally prohibited. Crawford v. Washington, 541 U.S. 36, 59 (2004). However, there

is an exception if the declarant is unavailable and the accused had a previous opportunity

to cross-examine the declarant.            Id.    Moreover, a critical aspect of the holding in

Crawford is its application only to “testimonial statements.”4 Ramirez v. State, 928

N.E.2d 214, 217 (Ind. Ct. App. 2010).

                                           II. Kryza’s Claims

                                   A. Exclusion of Medical Report

        Kryza first argues that his convictions must be reversed because the trial court

erred in preventing him from introducing the medical report into evidence.                            Kryza

maintains that the report, which indicated among other things that he “did not appear to

be impaired by drugs or alcohol, [had] normal mental status, normal speech and


4
  Crawford identified “various formulations” of the “core class of ‘testimonial’ statements”: (1) ex parte
in-court testimony or its functional equivalent—that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used prosecutorially; (2) extrajudicial statements
contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or
confessions; and (3) “statements that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later trial.” 541 U.S. at 51-
52.
                                                     11
appropriate thinking,” was a certified business record and not hearsay. Appellant’s Br. p.

11.

       We first note that a motion in limine is not a final ruling on the admissibility of

evidence, and a ruling on the motion does not preserve the error for appeal. Our Supreme

Court has held that an objection must be specific in order for the issue to be preserved for

appellate review. Simmons v. State, 760 N.E.2d 1154, 1158 (Ind. Ct. App. 2002). If the

trial court erred in granting or denying a motion in limine, the error is in the admission or

exclusion of the evidence at trial and not in the trial court’s ruling on the pretrial motion.

Herrera v. State, 710 N.E.2d 931, 935-36 (Ind. Ct. App. 1999). Thus, to preserve the

issue for appellate review, a party must attempt to admit the evidence at trial and make an

offer to prove if the attempt is unsuccessful. Barnett v. State, 916 N.E.2d 280, 287 (Ind.

Ct. App. 2009). The purpose of an offer to prove is to preserve for appeal the trial court’s

allegedly erroneous exclusion of evidence. Nelson v. State, 792 N.E.2d 588, 595 (Ind.

Ct. App. 2003). The offer to prove can also aid the trial court in ruling on the objection.

Id. An offer of proof consists of three parts: 1) the substance of the evidence; 2) an

explanation of its relevance, and 3) the proposed grounds for its admissibility. Id. at 594.

       As discussed above, the State filed a motion in limine to exclude the medical form

from the evidence that Kryza indicated would be introduced into evidence. Appellant’s

App. p. 52. The State argued that the form was inadmissible because Kryza had failed to

lay the proper foundation to admit the statements contained in the form. Tr. p. 22-23.

The trial court granted the State’s motion on this matter, citing also the timeliness of

                                             12
Kryza’s disclosure of this material. Id. at 25-28. Kryza informed the trial court that he

would offer to prove the document during trial. Id. at 28. Although Kryza labeled this

document as exhibit A, he never offered the document into evidence or made an offer to

prove this document at trial. Thus, Kryza has waived the issue. Barnett, 916 N.E.2d at

287.

       Finally, we note that Kryza had over a year to retrieve and produce the document.

Had Kryza retrieved the document earlier, the parties would not be discussing the issue

on the day of trial. Tr. p. 25-26. Here, when the trial court conducted the hearing on the

motions in limine, the jury had already been chosen and was ready to be empaneled.

                              B. Toxicologist’s Testimony

       Kryza next claims that the trial court erred in excluding Dr. Bederka’s testimony

regarding the DataMaster test’s accuracy.        Specifically, Kryza maintains that the

evidence presented at trial established that Dr. Bederka was qualified to testify about the

operation and reliability of the BAC DataMaster test.

       The trial court is the gatekeeper for the admissibility of expert opinion evidence

under Indiana Evidence Rule 702. Doe v. Shults-Lewis Child & Family Servs., Inc., 718

N.E.2d 738, 750 (Ind. 1999). By requiring trial courts to be satisfied that expert opinions

will assist the fact-finder and that the underlying scientific principles are reliable,

Evidence Rule 702 guides the admission of expert scientific testimony. Sears Roebuck &

Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind. 2001).

       Evidence Rule 702 provides that

                                            13
       (a) If scientific, technical, or other specialized knowledge will assist the trier of
           fact to understand the evidence or to determine a fact in issue, a witness
           qualified as an expert by knowledge, skill, experience, training, or education,
           may testify thereto in the form of an opinion or otherwise.

       (b) Expert scientific testimony is admissible only if the court is satisfied that the
          scientific principles upon which the expert testimony tests are reliable.

       In other words, to qualify as an expert, the proponent of the expert must

demonstrate that the expert satisfied the criteria for qualifying under Rule 702

(knowledge, skill, experience, training, or education), and will meet a valid purpose

under Rule 702 to assist the trier of fact. Person v. Shipley, 962 N.E.2d 1192, 1196 (Ind.

2012). Additionally, an expert must have sufficient skill in the particular area of expert

testimony before the expert can offer opinions in that area. Hannan v. Pest Control

Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000).

       The trial court must preliminarily assess “whether the reasoning or methodology

underlying the testimony is scientifically valid and whether that reasoning or

methodology properly can be applied to the facts in issue.” Id. While there is no

absolute test for determining whether testimony is reliable, some of the factors include

whether: 1) the theory or technique can be or has been empirically tested; 2) the theory or

technique has been subjected to peer review and/or publication; 3) there is a known or

potential rate of error, as well as the existence and maintenance of standards controlling

the theory or technique’s operation; 4) the theory or technique is generally accepted

within the relevant scientific community. Armstrong v. Cerestar USA, Inc., 775 N.E.2d

360, 366 (Ind. Ct. App. 2002).

                                            14
       A trial court’s determination regarding the admissibility of expert testimony under

Rule 702 is a matter within its broad discretion and will be reversed only for an abuse of

that discretion. TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind.

2010). This court presumes that the trial court’s decision is correct, and the burden is on

the party challenging the decision to persuade this court that the trial court abused its

discretion. Id. The proponent of expert testimony bears the burden of establishing the

foundation and reliability of the scientific principles and tests upon which the experts’

testimony is based. Hannan, 734 N.E.2d at 679.

       In this case, during Kryza’s offer of proof, Dr. Bederka testified that the

DataMaster instruments use two technologies: electric chemical or fuel cell technology

and infrared technology. Dr. Bederka claimed that he understood the infrared technology

behind the DataMaster instruments, and spent most of his time attacking the technology,

claiming that the instruments cannot accurately determine a person’s actual ACE on the

idea that the infrared sensors may pick up false positives from molecules other than

alcohol.   Tr. p. 141-42, 148.     However, Dr. Bederka did not explain whether he

understood the electric chemical technology. Id. at 140.

       As noted above, Dr. Bederka testified that he had authored an article nearly twenty

years ago about the detection of alcohol in an individual’s body. In that article, Dr.

Bederka examined other scientists’ data on the accuracy of breath test instruments. Dr.

Bederka could not testify about the methodologies that other scientists use or whether any

of the data was gathered from DataMaster instruments. Id. at 150-51, 154-55. Dr.

                                            15
Bederka described his method for manipulating the data he relied upon for his article, but

could not explain whether his methods conformed to scientific standards. Dr. Bederka

also admitted that he has never used or operated any DataMaster instruments, including

the one that was used in this case. Id. at 140.

       In essence, the trial court concluded that Dr. Bederka had failed to demonstrate

whether the methodology he sought to explain in his article—and the methods of others

that he relied upon in arriving at his conclusions—were reliable. See Armstrong, 775

N.E.2d at 366. It was determined that Dr. Bederka did not perform any empirical

research involving infrared machines or DataMaster instruments. Moreover, he did not

claim expertise in the detection of intoxication. The trial court also found that Dr.

Bederka’s article was not subjected to peer review. Rather, as mentioned above, it was

submitted to and edited by his boss and a librarian.

       In light of these circumstances, we conclude that the trial court properly exercised

its discretion in concluding that Dr. Bederka was not an expert regarding the accuracy

and reliability of DataMaster instruments. Thus, the trial court did not err in excluding

Dr. Bederka’s testimony on this basis.

                            C. Breath Test Operator’s Opinion

       Kryza next claims that the trial court erred in permitting Officer Chapman, the

breath test operator, to render an opinion that he did not doubt that the breath test result

was accurate. Specifically, Kryza argues that the trial court should have excluded the

evidence because “it was within the province of the jury to determine whether the breath

                                             16
test results were accurate and Officer Chapman’s personal opinion based upon his

training and experience violated Indiana Evidence Rule 704(b).” Appellant’s Br. p. 26.

       In resolving this issue, we note that Indiana Evidence Rule 704 provides that

“[t]estimony in the form of an opinion or inference otherwise admissible is not

objectionable just because it embraces an ultimate issue,” unless the opinion concerns

“intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a

witness has testified truthfully; or legal conclusions.”

       Kryza asserts that the trial court’s admission of Officer Chapman’s testimony that,

“based upon [his] training and experience,” he did not “have [a] doubt as to the accuracy

of [Kryza’s] blood alcohol results,” was error because that testimony involved Kryza’s

guilt or innocence. Tr. p. 118-19. Although Kryza directs us to this court’s opinion in

Bradford v. State, 960 N.E.2d 871, 876 (Ind. Ct. App. 2012), because it involved an

opinion of the “truth or falsity of the allegations” that were brought against the defendant,

that case is inapposite here, because it was Officer Chapman’s testimony that he did not

doubt the accuracy of the test result. Tr. p. 118. Officer Chapman testified earlier in the

trial, without objection from Kryza, regarding the operation of the DataMaster machine

and stated that he followed the approved method and did not experience any issues in

administering the breath test to Kryza.

       In other words, Officer Chapman did not testify about his belief regarding Kryza’s

guilt or innocence, whether the allegations were true or false, or whether any witness

testified truthfully. Officer Chapman also offered no legal opinion about the case. Id. at

                                              17
108.   In other words, Officer Chapman’s statements regarding the accuracy of the

DataMaster device that tested Kryza’s breath merely assisted the jury in reaching a

conclusion about Kryza’s guilt or innocence. As a result, we conclude that the trial court

did not abuse its discretion in overruling Kryza’s objection and admitting Officer

Chapman’s testimony into evidence.

            D. Admission of Certifications from Other DataMaster Machines

       Kryza argues that the trial court erred in refusing to admit certifications from other

DataMaster machines that are used in Porter County. Kryza argues that this evidence

was relevant because it established that the machine used to test Kryza was not tested

properly and was certified on two separate earlier occasions one week apart, which was

not normal protocol.

       We initially observe that Kryza did not make a proper offer to prove the proffered

documents regarding certifications of compliance of three other DataMaster instruments.

As a result, there is no basis for a claim of error on a ruling excluding evidence.

Hollowell v. State, 753 N.E.2d 612, 615-16 (Ind. 2001). An offer of proof consists of

three parts: 1) the substance of the evidence; 2) an explanation of its relevance; and 3)

the proposed grounds for its admissibility. Nelson v. State, 792 N.E.2d 588, 594 (Ind. Ct.

App. 2003). Here, while Kryza may have demonstrated the substance of the documents

and claimed that they were relevant, he did not offer grounds for the admissibility of

them. Tr. p. 128-30.



                                             18
       As the trial court correctly observed, Officer Chapman could not testify as to the

certificates of compliance of the three DataMaster instruments that were not used in this

case. Indeed, the evidence established that none of these instruments were kept at the

Porter County station where Officer Chapman tested Kryza and two of the three were not

even used in Porter County. Id. at 129. Therefore, Kryza failed to make a proper offer of

proof and the issue is waived. Hollowell, 753 N.E.2d at 615.

       Waiver notwithstanding, Kryza has failed to demonstrate the relevancy of the

proffered documents. In accordance with Indiana Evidence Rule 401, relevant evidence

is defined as “evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence.” The proffered documents concerned several DataMaster

instruments that were not used in this case and nothing in the record connected these

instruments to the DataMaster instrument that was used to test Kryza. In short, neither

Officer Chapman nor any other witness at trial could testify about these other DataMaster

instruments.

       Although Kryza directs us to this court’s opinion in Christian v. State, 710 N.E.2d

582 (Ind. Ct. Ap. 1999), we find that case inapposite. In Christian, the challenged

evidence concerned the breathalyzer machine that was used to test the defendant. Id. at

582-83. Here, the contested evidence concerned machines that were not used in the

instant case. Therefore, the trial court properly excluded the certificates of compliance

that Kryza sought to offer into evidence because they were not relevant in this matter.

                                            19
       Additionally, even assuming for the sake of argument that the documents should

have been admitted into evidence, they were cumulative of other evidence that was

offered, and any slight probative value that could be attributed to them would have been

greatly outweighed by the danger they posed of misleading the jury. Evid. R. 403.

       Officer Chapman had testified that the DataMaster instruments were certified

every six months and that he used Instrument 990170 to test Kryza on May 6, 2012. As

discussed above, the evidence showed that this particular instrument had been certified

on July 11, 2000; April 16, 2012; September 12 and 18, 2012. Tr. p. 107-08. In short,

the evidence demonstrated that Instrument 990170 had been certified more frequently

than what typical protocol required. As a result, information demonstrating that other

DataMaster instruments were certified every six months was cumulative and

unnecessary.

       Additionally, the introduction of collateral evidence of DataMaster instruments not

used in this case may very well have confused or misled the jury. As a result, we

conclude that the trial court did not abuse its discretion in excluding the documents Kryza

offered that pertained to the instruments that were not used in this case.

                                 E. Right to Confrontation

       Kryza argues that his convictions must be reversed because his right to

confrontation under the Sixth Amendment to the United States Constitution was violated.

Kryza maintains that this right was violated when the certification of compliance for the

DataMaster machine and the subsequent breath test result were entered into evidence.

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Kryza claims that the individual who approved the instrument was required to be present

at trial and subject to cross-examination.

       The Sixth Amendment to the United States Constitution, made applicable to the

States via the Fourteenth Amendment, provides:         “In all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S.

const. amend. VI. Thus, a witness’s testimony against a defendant is inadmissible unless

the witness appears at trial or, if the witness is unavailable, the defendant had a prior

opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36 (2004). The

Crawford Court noted the following application of the confrontation clause: “It applies

to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’”

“Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the

purpose of establishing or proving some fact.” Id. at 51.

       The United States Supreme Court in Melendez-Diaz v. Massachusetts, 557 U.S.

305 (2009), “elaborated on the meaning of ‘testimonial’ within the realm of forensic

chemical testing.” Also, in Ramirez, this Court examined the precise issue that Kryza

now raises in light of Melendez-Diaz and “reaffirmed [this Court’s] position that

certificates verifying routine inspection of breath test instruments are nontestimonial.”

Id. at 219. In Bullcoming v. New Mexico, the United States Supreme Court held that the

introduction of a forensic laboratory report which contained “a testimonial certification—

made for the purpose of proving a particular fact—through the in-court testimony of a

scientist who did not sign the certification or perform or observe the test reported in the

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certification” violated the Confrontation Clause. 131 S. Ct. 2705, 2710 (2011). Also, in

Jones v. State, we recently examined Bullcoming and reaffirmed the holding in Ramirez

that documents like the ones that Kryza are now challenging are not testimonial. Jones v.

State, 982 N.E.2d 417, 428 (Ind. Ct Ap. 2013), trans. denied.

         There is nothing in Crawford and its progeny suggesting that the confrontation

clause is meant to apply to routine examinations of breath test instruments conducted

pursuant to statute and not in contemplation of trial. Id.   The maintenance function of

certification is not an accusation of criminal wrongdoing against any person, let alone

Kryza.     Thus, an extension of the application of the Confrontation Clause to the

certification process does nothing to satisfy the constitutional assurance that an accused

be permitted to confront his or her accusers, because nothing in the certification process

is an accusation.

         Also, notwithstanding Kryza’s baseless allegations that his case is somewhat or

somehow different from Ramirez and Jones, any error is harmless in light of the other

evidence that established Kryza’s guilt. See Jones, 982 N.E.2d at 428 (observing that the

State “did not have to prove a certain blood alcohol to sustain Jones’s conviction” in light

of the officer’s “extensive and explicit testimony demonstrating that Jones operated the

vehicle while intoxicated”).

         Here, similar to the circumstances in Jones, Officer Blythe noticed several signs

and symptoms of intoxication when he saw Kryza, including the odor of alcohol on his

breath, bloodshot eyes, and unsteady balance. As in Jones, the subject failed three

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standardized field sobriety tests. Tr. p. 47, 53-63. Moreover, Kryza admitted to Officer

Blythe that he had been drinking before driving, and he crashed his vehicle in a manner

that was consistent with intoxicated driving. Id. at 41-44. As a result, we cannot say that

the Confrontation Clause was implicated and violated Kryza’s rights.

                                     CONCLUSION

       In light of our discussion above, we conclude that the trial court properly

prevented the medical report from being admitted into evidence, that Dr. Bederka’s

testimony about certain aspects of the alleged defects and shortcomings of the

DataMaster was correctly excluded from the evidence, and that Officer Chapman, the

breath test operator, could render an opinion regarding the accuracy of the breath test

results. Also, the trial court properly exercised its discretion in excluding certifications

from other DataMaster machines that were not actually used in this case, and there was

no violation of Kryza’s right to confrontation under the Sixth Amendment to the United

States Constitution.

       The judgment of the trial court is affirmed.

NAJAM, J., and CRONE, J., concur.




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