Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the Nov 13 2012, 9:29 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
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law of the case. of the supreme court,
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DORI NEWMAN GREGORY F. ZOELLER
Newman & Newman, PC Attorney General of Indiana
Noblesville, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSEPH RIDGE, )
)
Appellant-Defendant, )
)
vs. ) No. 29A02-1112-CR-1168
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Wayne Sturtevant, Judge
Cause No. 29D05-1106-CM-9316
November 13, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Following a jury trial, Joseph Ridge appeals his conviction for operating a vehicle
while intoxicated, a Class A misdemeanor. Ridge raises three issues for our review: 1)
whether the trial court abused its discretion in denying Ridge’s request to hire an expert
at public expense; 2) whether the trial court abused its discretion in allowing the State’s
toxicology witness, Dr. Scott Kriger, to hear the testimony of the arresting officer,
Deputy Kent Mustain; and 3) whether the trial court abused its discretion in admitting Dr.
Kriger’s expert testimony that Ridge was intoxicated on K2 at the time of the traffic stop.
Concluding the trial court did not abuse its discretion in either denying Ridge’s request to
hire an expert or allowing Dr. Kriger to hear the testimony of Deputy Mustain, and
further concluding Ridge waived appellate review of the admission of Dr. Kriger’s
testimony regarding Ridge’s K2 intoxication but the trial court did not abuse its
discretion in admitting the testimony, we affirm.
Facts and Procedural History
Around 5:00 p.m. on June 18, 2011, Hamilton County Sheriff’s Deputy Mustain
observed Ridge’s vehicle pull out of westbound traffic on State Road 32 and stop in the
eastbound lane, facing oncoming traffic. Deputy Mustain activated his overhead lights
and pulled behind Ridge’s vehicle, which remained stopped. When Deputy Mustain
approached the driver’s side window, he observed Ridge slumped over as if he were
looking down. Deputy Mustain had to knock on the window to get Ridge’s attention.
Ridge looked at the deputy with red, bloodshot eyes. Ridge was sluggish and confused;
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he had trouble speaking, could not follow directions, and failed several field sobriety
tests.
When asked by Deputy Mustain if had taken any drugs, Ridge admitted that he
had smoked a K2 cigarette before driving. The remainder of the cigarette was on the
driver’s side floorboard. K2, also known as spice, is a synthetic cannabinoid, which
mimics the effect of marijuana or THC. Symptoms of synthetic cannabinoid use include:
very slow, slurred speech, delayed reaction, an inability to process information, an
inability to perform complex tasks, an inability to perceive surroundings, physical
instability and poor coordination, and poor hand/eye coordination.
Based upon Ridge’s admission that he had smoked a K2 cigarette and his behavior
at the scene, Deputy Mustain, a certified field sobriety instructor and drug recognition
expert, surmised that Ridge was under the influence of K2 and offered to take Ridge to
the hospital to conduct a drug recognition test. When it appeared that Ridge did not
understand, Deputy Mustain placed Ridge in handcuffs to transport him to the hospital.
On the way, Ridge had rigid muscles, became agitated, and spoke incoherently. At the
hospital, he tested negative (“0.00” on a portable breath test) for alcohol. After a number
of tests and an interview, Deputy Mustain concluded that Ridge was under the influence
of a marijuana/cannabinoid drug.
The State charged Ridge with Class A misdemeanor operating a vehicle while
intoxicated. After finding Ridge indigent, the trial court appointed defense counsel. Two
days prior to trial, Ridge moved for public funds to hire a toxicologist who charged a
$2,000 nonrefundable retainer. During a hearing on the issue, Ridge first argued he
needed an expert to review toxicology reports but then, after learning that the State had
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no intention of using any toxicology reports, limited the need for an expert to explaining
the effects of K2. Ridge then argued that he needed an expert to review the police in-car
video capturing the events of his arrest for possible tampering. The trial court denied
Ridge’s motion for his own expert witness at public expense.
At the start of trial the next day, December 1, 2011, Ridge moved in limine to
exclude Dr. Kriger’s opinion on Ridge’s K2 intoxication at the time of the traffic stop on
the basis that his testimony lacked a proper factual foundation. The trial court granted
that motion until a proper foundation had been laid.
Ridge also moved for a separation of witnesses, and the State requested that Dr.
Kriger be allowed to remain in the courtroom to hear Deputy Mustain’s testimony. Ridge
argued that if Dr. Kriger’s testimony was limited to explaining the effects of K2 and not
extended to toxicology reports, then Dr. Kriger’s presence in the courtroom was not
essential. The State responded that it planned to use Indiana Evidence Rule 703 1 to offer
Dr. Kriger’s opinion of Ridge’s intoxication at the time of the traffic stop based on the
evidence introduced through Deputy Mustain, including the in-car video. Citing
Evidence Rule 615 clause 3, the trial court granted the motion for separation of witnesses
but made an exception for Dr. Kriger as an expert witness. The trial court reasoned that
before Dr. Kriger could testify as to Ridge’s intoxication, the State needed to establish a
proper factual foundation and it was, “quite frankly, cleaner and easier for the jury to
allow Dr. Kriger to testify from facts that he [had] heard go into the record than some
cumbersome hypothetical that tri[ed] to incorporate all those facts.” Transcript at 23.
1
Under Evidence Rule 703, an expert may base his opinion on facts made known to the expert at or before
the hearing.
4
During trial, Deputy Mustain testified about Ridge’s admission that he had
smoked a K2 cigarette, the burnt cigarette on the floorboard, and Ridge’s behavior. After
Deputy Mustain’s testimony, Dr. Kriger explained the general nature of K2, its effects on
the human body, and—after the trial court found that the State had laid a proper factual
foundation—his opinion that Ridge was intoxicated on K2 at the time of the traffic stop.
The jury found Ridge guilty. Ridge now appeals his conviction.
Discussion and Decision
I. Request to Hire an Expert at Public Expense
A. Standard of Review
A trial court has discretion in granting or denying requests to provide indigent
criminal defendants with the assistance of experts at public expense, and such decisions
are overturned only for an abuse of discretion. Scott v. State, 593 N.E.2d 198, 200 (Ind.
1992).
B. Necessity for an Expert
Ridge appeals the trial court’s denial of his request to hire an expert witness at
public expense to help prepare his defense, specifically to explain the effects of K2 and to
review the police in-car video for possible tampering. When deciding whether to provide
an indigent defendant with expert services at public expense, a trial court must ask
whether the services are necessary to assure an adequate defense and whether the
defendant specifies precisely how he would benefit from the requested expert services.
Kocielko v. State, 938 N.E.2d 243, 254 (Ind. Ct. App. 2010), modified on other grounds
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on reh’g, trans. denied. What is “necessary” is highly fact-sensitive; a trial court may
consider factors2 including:
(1) whether the services would bear on an issue generally regarded to be
within the common experience of the average person, or on one for which
an expert opinion would be necessary; (2) whether the requested expert
services could nonetheless be performed by counsel; (3) whether the
proposed expert could demonstrate that which the defendant desires from
the expert; (4) whether the purpose for the expert appears to be only
exploratory; (5) whether the expert services will go toward answering a
substantial question in the case or simply an ancillary one; (6) the
seriousness of the charge; (7) whether the State is relying upon an expert
and expending substantial resources on the case; (8) whether a defendant
with monetary resources would choose to hire such an expert; (9) the costs
of the expert services; (10) the timeliness of the request for the expert and
whether it was made in good faith; and (11) whether there is cumulative
evidence of the defendant’s guilt.
Id. at 254-55 (citing Scott, 593 N.E.2d at 200-01). The defendant bears the burden of
demonstrating the need for appointment of an expert. Scott, 593 N.E.2d at 200.
The trial court first denied Ridge’s request to hire an expert to review the police
in-car video, describing such request as exploratory and speculative at best. It noted that
the issue was whether the State could prove that Ridge operated a vehicle while
intoxicated, not whether the officers had acted inappropriately. In addition, there was no
evidence of any tampering with the videotape. Ridge’s own attorney admitted that, in her
professional opinion, she saw no evidence of tampering. The trial court did not abuse its
discretion in denying Ridge’s request for an expert for this purpose.
The trial court then considered the relevant factors3 and denied Ridge’s request to
hire an expert to discuss the effects of K2. Reviewing the trial court’s reasoning, we
2
There is no dispute as to Ridge’s indigent status, and thus we will not address that threshold issue but
rather focus on the Scott factors.
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agree. First, the State was using a toxicology expert to educate the jury about K2 and
there was no evidence of disagreement among toxicologists or that the proposed expert’s
testimony would differ from the State’s expert about those effects. Second, the proposed
expert’s willingness to cooperate with Ridge without charge prior to trial would render
defense counsel’s cross-examination effective. Third, again, there was no evidence that
the proposed expert would give a contrary opinion. Fourth, the purpose of the proposed
expert appeared to be exploratory. Fifth, the issue of how long the effects of K2 lasted
was an ancillary question; the totality of other evidence – including Deputy Mustain’s
testimony and the in-car video – supported a finding of Ridge’s intoxication at the time of
the stop. Sixth, a Class A misdemeanor is not a very serious charge. Seventh, although
the State planned to use an expert, it also had decided not to introduce the toxicology
report into evidence to avoid the expenditure of substantial resources. Eighth, the trial
court doubted that Ridge would have spent his own money to hire the proposed expert.
Ninth, the proposed expert’s $2,000 fee was not reasonable for what the proposed witness
could “bring to the table.” Tr. at 370. And tenth, the case had been pending for six
months, was scheduled for jury trial the day after the hearing on Ridge’s motion, and
with Ridge in custody, the trial should go on as planned. We add that a second expert’s
opinion on the effects of K2 would have been cumulative to Dr. Kriger’s testimony.
Thus, the proposed expert’s services were not necessary to assure Ridge an adequate
defense.
3
Ridge distinguishes Scott by arguing that his charge of intoxication resulted from K2 ingestion, not
alcohol. However, such minor distinction is without effect. Scott provides factors to help determine whether an
expert’s services are necessary to assure an adequate defense for an indigent defendant and does not limit its holding
to experts testifying about intoxication by the consumption of alcohol.
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Overall, Ridge recounts the procedural history of the case rather than put forward
a cogent argument why the trial court abused its discretion. We find no reason to
disagree with the trial court and hold that the trial court did not abuse its discretion in
denying Ridge’s request to hire an expert at public expense.
II. Witness Separation Order
A. Standard of Review
Subject to certain exceptions, “[a]t the request of a party, the court shall order
witnesses excluded so that they cannot hear the testimony of or discuss testimony with
other witnesses . . . .” Ind. Evidence Rule 615. The determination of whether a witness
qualifies for one of the limited exceptions to this Rule is within the trial court’s discretion
and subject to review for an abuse of that discretion. Long v. State, 743 N.E.2d 253, 257
(Ind. 2001).
B. Exception for Essential Witnesses
Ridge contends that the trial court abused its discretion in allowing the State’s
expert witness, Dr. Kriger, to remain in the courtroom and hear Deputy Mustain’s
testimony although a separation of witnesses motion had been granted. We disagree.
The trial court did not abuse its discretion in allowing Dr. Kriger to hear Deputy
Mustain’s testimony. Although the purpose of a witness separation order is to prevent
the testimony of one witness from influencing another, Myers v. State, 887 N.E.2d 170,
190 (Ind. Ct. App. 2008), trans. denied, Evidence Rule 615 clause 3 provides that a
witness whose “presence is shown by a party to be essential to the presentation of the
party’s cause” cannot be excluded. This exception is most frequently employed for
expert witnesses, who are believed to be less susceptible to the temptation to shape their
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testimony. R.R. Donnelley & Sons Co. v. N. Texas Steel Co., Inc., 752 N.E.2d 112, 133
(Ind. Ct. App. 2001), trans. denied; see also Hernandez v. State, 716 N.E.2d 948, 951 n.3
(Ind. 1999) (acknowledging that Rule 615 clause 3 is typically invoked for an expert
witness rather than a fact witness). Additionally, Evidence Rule 703 specifically
contemplates that expert witnesses may be in the courtroom for other witnesses’
testimony, stating “[t]he facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the expert at or before
the hearing.” (Emphasis added.) To claim the Rule 615 clause 3 exception, the moving
party must show that the “witness has such specialized expertise or intimate knowledge
of the facts of the case that a party’s attorney could not effectively function without the
presence and aid of the witness.” Hernandez, 716 N.E.2d at 950 (emphasis added).
Ridge argues that the State did not show that Dr. Kriger was essential to its case.
Specifically, Ridge points to the State’s representations that it would not use Dr. Kriger to
testify about toxicology reports and the subsequent denial of his request to hire an expert
at public expense. However, such conclusion does not necessarily follow from the
State’s decision not to use toxicology reports. The State explained its decision regarding
the reports was meant to avoid the expenditure of substantial resources.
Furthermore, before its Rule 615 clause 3 request – made in response to Ridge’s
motion in limine to exclude Dr. Kriger’s opinion – the State explained that Dr. Kriger had
a specialized expertise in synthetic cannabinoids and, once a proper factual foundation
was laid, was going to be asked questions based on Deputy Mustain’s testimony and the
in-car video. Ridge based his successful motion on the argument that an opinion on
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Ridge’s K2 intoxication based on hypothetical facts, rather than facts admitted into
evidence at trial, would be highly prejudicial.
Dr. Kriger could have testified to his opinion based upon hypothetical questions
incorporating facts admitted into evidence. See Johnson v. State, 699 N.E.2d 746, 750
(Ind. Ct. App. 1998) (“An expert witness may express his opinion regarding a
hypothetical question if the following foundational prerequisites are satisfied: (1) ‘the
expert’s ability to give such an opinion must be established through testimony showing
he has the requisite knowledge, skill, education or experience on which to base the
opinion’; and (2) ‘there must be a proper evidentiary foundation supporting the facts that
are included in the hypothetical question.’”) (quoting Henson v. State 535 N.E.2d 1189,
1191-92 (Ind. 1989)). Because Dr. Kriger was going to be asked his opinion on facts
admitted into evidence at trial, if he were not allowed to stay in the courtroom, then he
would have to be provided with daily transcripts and a copy of the in-car video so that he
could appropriately form his expert opinion in this case. Dr. Kriger’s presence in the
courtroom, permitted under Evidence Rule 615 clause 3, streamlined and simplified the
presentation of evidence for the jury.
Given the necessity that Dr. Kriger be aware of facts admitted into evidence at
trial – not hypothetical facts – and the belief that expert witnesses are less likely to alter
their testimony based on what they hear from other witnesses, we hold that the trial court
did not abuse its discretion in exempting Dr. Kriger from the separation of witness order.
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III. Admission of Dr. Kriger’s Testimony
A. Standard of Review
A trial court has broad discretion to determine qualifications of experts and to
admit opinion evidence. Sufficiency of foundation is a matter of sound discretion of the
trial court and will be reversed only for abuse of that discretion. Hill v. State, 470 N.E.2d
1332, 1336 (Ind. 1984).
B. Admission of Dr. Kriger’s Testimony
Ridge has waived appellate review of the admission of Dr. Kriger’s expert opinion
that Ridge was intoxicated on K2 at the time of the traffic stop. A defendant may not
raise one ground for objection at trial and argue a different ground on appeal. Howard v.
State, 818 N.E.2d 469, 477 (Ind. Ct. App. 2004), trans. denied. The failure to raise an
issue at trial waives the issue for appeal. Id. Prior to and during trial, Ridge objected to
the testimony on the basis that it lacked factual foundation. On appeal, Ridge bases his
objection on a different foundational basis: whether toxicologists are qualified to render
opinion testimony on intoxication based on officer testimony and videotape footage and
whether Dr. Kriger was so qualified. Having changed foundational objections, Ridge
has waived this issue.
Furthermore, the trial court did not abuse its discretion in finding a sufficient
factual foundation for Dr. Kriger’s expert testimony that Ridge was intoxicated on K2 at
the time of the traffic stop. The facts in evidence showed that Ridge consumed a K2
cigarette before driving and that the remainder of the cigarette was on the driver’s side
floorboard of his vehicle. Deputy Mustain described Ridge’s behavior at the time of
traffic stop and on the way to the hospital in great detail. Ridge had bloodshot eyes; he
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was sluggish and confused; he had trouble speaking, could not follow directions, and
failed several field sobriety tests. After arrest and on the way to the hospital, Ridge had
rigid muscles, became agitated, and spoke incoherently. He tested negative for alcohol.
Dr. Kriger applied his knowledge of the effects of K2 on the human body to these facts to
determine that Ridge exhibited these symptoms and was thus intoxicated. In light of the
facts in evidence, the trial court did not abuse its discretion in finding a sufficient factual
foundation for Dr. Kriger’s opinion.
Conclusion
We conclude the trial court did not abuse its discretion in denying Ridge’s request
to hire an expert or allowing Dr. Kriger to hear the testimony of Deputy Mustain.
Further, although Ridge waived appellate review of the admission of Dr. Kriger’s
testimony regarding Ridge’s K2 intoxication, the trial court did not abuse its discretion in
admitting his testimony. Therefore, we affirm Ridge’s conviction.
Affirmed.
BAKER, J., and BRADFORD, J., concur.
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