MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 21 2016, 6:17 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John L. Tompkins Gregory F. Zoeller
Brown Tompkins Lory & Mastrian Attorney General of Indiana
Indianapolis, Indiana Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard Vance Hastings, June 21, 2016
Appellant-Defendant, Court of Appeals Case No.
29A02-1507-CR-982
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Gail Bardach,
Appellee-Plaintiff Judge
Trial Court Cause No.
29D06-1409-F6-7817
Mathias, Judge.
[1] Following a jury trial, Richard Hastings (“Hastings”) was convicted in
Hamilton Superior Court of Level 6 felony for operating a motor vehicle while
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intoxicated with a blood alcohol equivalent of 0.08 or more with a prior
conviction within five years. On appeal, Hastings presents two issues, one of
which we find dispositive: whether the trial court erred in excluding the
testimony of Hastings’ proffered expert witness. Concluding that the trial court
abused its discretion in excluding the testimony of this witness and that this
exclusion was not harmless, we reverse and remand.
Facts and Procedural History
[2] On the evening of September 12, 2014, Officer Charles Nichols (“Officer
Nichols”) of the Westfield Police Department was on patrol when he saw a
black Jeep Wrangler traveling at 65 miles per hour in a 40-mile-per-hour
construction zone on U.S. Highway 31. Officer Nichols initiated a traffic stop
and spoke with Hastings, who was driving the Jeep. Although Hastings claimed
to have had only one drink earlier in the evening, Officer Nichols noticed that
Hastings had red, bloodshot eyes and also observed two unopened cases of beer
in the back of the Jeep.
[3] Believing that Hastings might be intoxicated, Officer Nichols instructed
Hastings to undergo three field sobriety tests: the horizontal gaze nystagmus
test, the nine-step walk-and-turn test, and the one-leg stand test. Hastings failed
all three tests. Officer Nichols then transported Hastings to the police station,
where he tested Hastings with a chemical breath test. This test indicated that
Hastings’ blood alcohol equivalent (“BAE”) was 1.08 grams per 210 liters of
breath.
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[4] On September 17, 2014, the State charged Hastings with Class C misdemeanor
operating a motor vehicle while intoxicated, Class C misdemeanor operating a
motor vehicle with a BAE of 0.08 or greater, Level 6 felony operating a motor
vehicle while intoxicated and having a prior conviction within five years, and
Level 6 felony operating a motor vehicle with a BAE of 0.08 or greater and
having a prior conviction within five years.
[5] On the day prior to trial, the State filed a motion in limine seeking to prevent
Hasting’s expert witness, Dr. Robert Belloto, Jr. (“Dr. Belloto”), from testifying
regarding the specific chemical breath test device used on Hastings, the
Intoxylizer EC/IR II. The trial court held a hearing on this motion immediately
before the jury trial began. The State orally moved to expand its motion in
limine to include other areas of Dr. Belloto’s testimony. The trial court ruled
from the bench as follows:
I’m going to grant the State’s motion with respect to [Dr.
Belloto’s] testimony. I’m granting the motion with respect to
everything in both written motions. I’m also granting the motion
that the State is now making orally. That doesn’t exclude him from
testifying. It does exclude him from testifying before the jury until
such time as we have a hearing out of the presence of the jury to
determine what he will, whether he is qualified as an expert on
anything having to do with this trial, anything relevant in this
trial. I’m not forever excluding his testimony, that’s not what a motion
in limine does. What it does is exclude his testimony until such
time as I make a determination with him on the stand as to what
his testimony would be, outside the presence of the jury, that it is,
that he does qualify as an expert and that his testimony would be
relevant.
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Tr. pp. 17-18 (emphasis added).
[6] At the conclusion of the State’s case-in-chief, Hastings called Dr. Belloto as a
witness. Dr. Belloto was then questioned by both parties outside the presence of
the jury to determine his qualifications as an expert. The trial court ruled:
I don’t find that Dr. Belloto satisfies the requirement for the
Court to accept him as an expert to testify in this area. I just have
a really difficult time believing that any pharmacist in any drug
store could walk into a courtroom and testify in an operating
while intoxicated case as an expert on this issue, and that is the
position that he has taken. He has been, he has testified
approximately 20 times, he said. He hasn’t been trained with
respect to anything except the various machines. He’s studied
pharmacy, he’s studied pharmo, pharmokinetics. So have a lot of
other people. I don’t find him to be an expert.
Tr. pp. 171-72.
[7] At the conclusion of the first stage of the trial, the jury found Hastings guilty of
both misdemeanor counts. Hastings then pleaded guilty to the Level 6 felony
enhancements, i.e., he admitted that he had a prior conviction for operating
while intoxicated within the past five years. At sentencing, the trial court
merged the other convictions into the one count of Level 6 felony operating a
motor vehicle with a BAE of 0.08 or greater while having a prior conviction
within the last five years. The court sentenced Hastings to 910 days, with 360
days executed and 550 days suspended to probation. Hastings now appeals.
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Discussion and Decision
A. Standard of Review
[8] Hastings first argues that the trial court erred in excluding the testimony of Dr.
Belloto. Decisions regarding the admission of evidence are entrusted to the
sound discretion of the trial court, and we review the court’s decision 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’s ruling on the admission of evidence
constitutes an abuse of 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.
B. Procedural Claims
[9] Hastings first argues that the procedure used by the trial court to address the
State’s objection to Dr. Belloto’s testimony was so unfair as to constitute
fundamental error. Because he made no objection to the trial court’s procedure
below, Hastings must argue that the trial court’s procedure was fundamental
error. See Sampson v. State, 38 N.E.3d 985, 992 (Ind. 2015) (noting that the
failure to object at trial waives the issue for review unless fundamental error
occurred). The fundamental error doctrine is an exception to the general rule
that the failure to object at trial constitutes procedural default or “waiver”
precluding consideration of the issue on appeal. Id. However, the fundamental
error exception 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. Id. Also, harm is not
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shown by the fact that the defendant was ultimately convicted. Id. Instead,
harm is found when error is so prejudicial as to make a fair trial impossible. Id.
[10] Hastings complains that the trial court erred by permitting the State to file its
motion in limine the day before trial. However, the trial court had issued a pre-
trial order, applicable to both parties, that set the day before trial as the deadline
for such motions. We fail to see how this constitutes error. Moreover, Hastings
refers us to no authority (and we are aware of no such authority) that would
require the State to file a pre-trial motion in order to object to Dr. Belloto’s
testimony. The State would have been within its rights to simply object to Dr.
Belloto’s testimony during the trial. As noted by the State on appeal, it was not
the prosecutor’s burden to disqualify Dr. Belloto’s testimony; it was Hastings’
burden to establish Dr. Belloto as an expert. See Prewitt v. State, 819 N.E.2d 393,
410 (Ind. Ct. App. 2004) (“the proponent of expert testimony bears the burden
of establishing the foundation and reliability of the scientific principles and tests
upon which the expert’s testimony is based.”); Ollis v. Knecht, 751 N.E.2d 825,
829-30 (Ind. Ct. App. 2001) (“[T]he party wishing to admit the expert’s
testimony has the burden of proving that the evidence is admissible.”).1
[11] Furthermore, the cases to which Hastings cites are readily distinguishable. In
fact, the cases he cites involve the exclusion of witnesses who were not timely
disclosed. See, e.g., Williams v. State, 714 N.E.2d 644, 651 (Ind. 1999); Cook v.
1
See also Robert L. Miller, Jr., 13 Ind. Practice, Evidence § 702.207 (3d ed.).
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State, 675 N.E.2d 687, 691 (Ind. 1996); Wiseheart v. State, 491 N.E.2d 985, 991
(Ind. l986). None of these cases involves a determination that a witness was not
qualified to testify as an expert.
[12] Hastings also complains that the exclusion of his expert witness denied him his
right to present a defense and witnesses in his favor. Our supreme court has
explained:
Every defendant has the fundamental right to present witnesses
in their own defense. Chambers v. Mississippi, 410 U.S. 284, 302
(1973); Washington v. Texas, 388 U.S. 14, 19(1967); Kellems v.
State, 651 N.E.2d 326, 328 (Ind. Ct. App. 1995). This right “is in
plain terms the right to present a defense, the right to present the
defendant’s version of the facts as well as the prosecution’s to the
jury so it may decide where the truth lies.” Washington, 388 U.S.
at 19. At the same time, while the right to present witnesses is of the
utmost importance, it is not absolute. See Chambers, 410 U.S. at 302;
Kellems, 651 N.E.2d at 328. “In the exercise of this right, the accused,
as is required of the State, must comply with established rules of
procedure and evidence designed to assure both fairness and reliability in
the ascertainment of guilt and innocence.” Chambers, 410 U.S. at 302.
Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998), aff’d in relevant part on reh’g, 711
N.E.2d 1237 (Ind. 1999) (emphasis added).
[13] Here, the trial court’s exclusion of Dr. Belloto’s testimony was done pursuant to
the established Indiana Rules of Evidence. The mere fact that the trial court
may have erred in excluding the evidence does not transform any evidentiary
error into constitutional error. In short, Hastings has not persuaded us that the
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procedure used by the trial court to determine whether Dr. Belloto should be
permitted to testify as an expert constituted fundamental error.
C. Indiana Evidence Rule 702
[14] Hastings argues that the trial court abused its discretion by excluding Dr.
Belloto’s testimony.2 The admission of expert testimony is governed by Indiana
Evidence Rule 702, which provides:
(a) A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is
satisfied that the expert testimony rests upon reliable scientific
principles.
2
The State claims that Hastings waived his claim regarding the exclusion of Dr. Belloto’s testimony because
he allegedly failed to make an offer of proof. Pursuant to Indiana Evidence Rule 103(a)(2), “a party may
claim error in a ruling to . . . exclude evidence only if the error affects a substantial right of the party and . . .
a party informs the court of its substance by an offer of proof, unless the substance was apparent from the
context.” Here, Dr. Belloto was examined extensively by both parties regarding his qualifications as an expert
witness. Included in this questioning was sufficient information to reveal what the substance of Dr. Belloto’s
testimony would have been, i.e., the effects of alcohol on the human body and how alcohol is absorbed and
metabolized by the body. It is also apparent that he would have testified to some extent regarding the
procedures and chemistry used in the chemical breath machines for which he has received training. We
accordingly decline to hold that Hastings failed to preserve his appellate argument by failing to make an offer
to prove. See Bedree v. Bedree, 747 N.E.2d 1192, 1196 (Ind. Ct. App. 2001) (holding that an offer of proof was
not strictly necessary where the substance of the testimony the excluded witness would have given was
apparent from the context of the case); see also Arhelger v. State, 714 N.E.2d 659, 666 (Ind. Ct. App. 1999)
(noting that an offer of proof need not be “formal” and must only (1) make the substance of the excluded
evidence or testimony clear to the court, (2) identify the grounds for admission of the testimony, and (3)
identify the relevance of the testimony).
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[15] Thus, for a witness to qualify as an expert, the subject matter of the witness’s
testimony must be distinctly related to some scientific field, business, or
profession beyond the knowledge of the average person, and the witness must
have sufficient skill, knowledge, or experience in that area so that the opinion
will aid the trier of fact. Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999).
[16] Although federal courts use the standard set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), when determining whether expert
testimony is based on reliable scientific principles, Indiana courts are not bound
by Daubert. Still, the principles stated in Daubert can be helpful. Id. As
explained in Turner v. State:
Although Indiana courts are not bound by Daubert, we have
previously noted that [t]he concerns driving Daubert coincide
with the express requirement of Indiana Rule of Evidence 702(b)
that the trial court be satisfied of the reliability of the scientific
principles involved. Though we may consider the Daubert factors
in determining reliability, there is no specific “test” or set of
“prongs” which must be considered in order to satisfy Indiana
Evidence Rule 702(b). We therefore find Daubert helpful, but not
controlling, when analyzing testimony under Indiana Evidence
Rule 702(b).
953 N.E.2d 1039, 1050 (Ind. 2011) (citations and internal quotations omitted).
[17] Accordingly, in determining whether evidence is admissible under Rule 702(b),
Indiana courts may consider whether the theory or technique can be and has
been tested, whether the theory has been subjected to peer review and
publication, whether there is a known or potential error rate, and whether the
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theory has been generally accepted within the relevant field of study. Id. at 1048
(citing Daubert, 509 U.S. at 593-94). Moreover, as clarified in Turner:
Indiana’s Rule 702 is not intended to interpose an unnecessarily
burdensome procedure or methodology for trial courts. [T]he
adoption of Rule 702 reflected an intent to liberalize, rather than to
constrict, the admission of reliable scientific evidence. As the Supreme
Court instructed in Daubert, “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the
burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” 509 U.S. at 596.
Evidence need not be conclusive to be admissible. The weakness
of the connection of the item [of evidence] to the defendant goes
toward its weight and not its admissibility. Cross-examination
permits the opposing party to expose dissimilarities between the
actual evidence and the scientific theory. The dissimilarities go to
the weight rather than to the admissibility of the evidence.
Turner, 953 N.E.2d at 1050-51 (emphasis added) (some citations and internal
quotations omitted).
[18] In the present case, Dr. Belloto earned a B.S. in pharmacy from the Ohio State
University (“OSU”), an M.S. in mathematics from the University of Toledo, an
M.S. in pharmacy with an area of study in analytical and physical chemistry,
from OSU, and a Ph.D. in pharmacy from OSU. He was licensed as a
pharmacist in Pennsylvania and Ohio. He was also an assistant professor of
pharmacology at the University of Toledo, where he had taught regarding the
effect of alcohol on the human body. His area of study was in chemical and
physical pharmacology, where he “worked on what we call a dosing and
setting, helping dose drugs so that they’re at their appropriate therapeutic
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range.” Tr. p. 164. He also he had training on several chemical breath test
machines: the Alcotest, the DataMaster, and the Intoxilyzer. Id. When
Hasting’s counsel asked Dr. Belloto, “have you had the occasion to study the
effects and ingestion of alcohol and issues of absorption and burn off,” Dr.
Belloto replied:
Well, that’s what we call pharmacokinetics, that’s again, that’s
what I studied for my Ph.D. That’s what every pharmacist
studies if they want to get a pharmacy degree. So the idea is
looking at absorption, elimination, how are drugs eliminated, not
just looking at the routes but in clinical pharmacology we
quantify those routes as we call it, some call it clinical
pharmacology or pharmacokinetics, or toxicokinetics, depending
if you’re modeling a toxicological effect. As far as the effect, we
call that pharmacodynamics so that you’re modeling both the
time course of the drug and the pharmacological and
toxicological effects.
Tr. p. 165. When asked if he had training and background in “describing the
difference between a person drinking a drink with one ounce of alcohol and the
difference between absorption and burn off of that,” Dr. Belloto replied, “Yes.”
Id. at 166. He had also testified in approximately twenty other cases.
[19] It appears undisputed that Dr. Belloto’s credentials were impressive. He had
extensive training and experience with alcohol and how it affects the human
body. In terms of the rule, subject matter of Dr. Belloto’s testimony was related
to a scientific field—pharmacokinetics—that was beyond the ken of the average
person, and Dr. Belloto had sufficient knowledge and experience in this area
that would have been helpful to the trier of fact.
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[20] The trial court’s decision to exclude Dr. Belloto’s testimony was based on the
Dr. Belloto’s statement that any pharmacist would be qualified to testify as an
expert, a statement with which the trial court took umbrage. However, nothing
about Dr. Belloto’s generalization about the qualifications of any pharmacist
diminishes Dr. Belloto extensive personal qualifications relating to the issues in
this case.
[21] “If the witness has any peculiar knowledge or experience not common to the
world that renders the witness’s opinion founded upon that knowledge any aid
to the trier of fact, the witness may testify as an expert.” 13 Indiana Practice,
Indiana Evidence § 702.107 (3d ed.). In fact, our courts have allowed testimony
from “experts” who had no formal training and who were, unfortunately, far
less trained than pharmacists, e.g. drug users who testified regarding the
identity of drugs based on their own experience. See Clark v. State, 6 N.E.3d 992,
998 (Ind. Ct. App. 2014) (noting that Indiana courts have repeatedly held that a
person familiar with a particular drug through use may be qualified as an expert
to offer an opinion as to whether a substance in question is that drug).
[22] The State readily admits that it does not challenge that “the effects of alcohol
can be studied in a scientific manner.” Appellee’s Br. p. 16. It challenges only
“whether Dr. Belloto’s training as a pharmacist provided the requisite
“‘knowledge, skill, expertise, training, or education’ to qualify as an expert on
that subject.” Id. at 16-17. However, Dr. Belloto testified that he had studied the
effects of alcohol ingestion and the issues of absorption and “burn off” in
humans as part of his Ph.D. training in pharmokinetics. The fact that Dr.
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Belloto did not regularly prescribe ethanol as a drug does not diminish from the
fact that he has training and education beyond the knowledge of the average
person, and his testimony would have been helpful to the trier of fact.
[23] We therefore conclude that the trial court abused its discretion when it
determined that Dr. Belloto was not an expert and excluded his testimony.3
However, just because the trial court abused its discretion does not necessarily
mean that we must reverse Hastings’s conviction.
D. Harmless Error
[24] Errors in the admission or exclusion of evidence are to be disregarded unless
they affect the substantial rights of a party. Barnhart v. State, 15 N.E.3d 138, 143
(Ind. Ct. App. 2014). “In other words, we will find an error in the exclusion of
evidence harmless if its probable impact on the jury, in light of all of the
evidence in the case, is sufficiently minor so as not to affect the defendant’s
substantial rights.” Id. (citing Williams v. State, 714 N.E.2d 644, 652 (Ind.
1999)).
[25] The trial court here entered a judgment of conviction for Level 6 felony
operating a motor vehicle with a BAE of 0.08 or greater. Indeed, the State
3
Our holding should not be construed to mean that any pharmacist is automatically qualified to testify as an
expert in any driving-while-intoxicated case. The qualifications of every expert must be determined on a case-
by-case basis, depending on the “knowledge, skill, experience, training, or education” of that particular
witness. Here, Dr. Belloto had extensive education and training in the field of pharmacology and
pharmacokinetics and even taught this subject as a college professor. Also, he testified that he had studied the
issue of the ingestion, absorption, and metabolization of alcohol in the human body. This, not simply the title
of “pharmacist,” is what qualified him to be an expert witness in this area.
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presented evidence that Hastings’s BAE was .108. Dr. Belloto’s testimony
would have addressed the effects of alcohol on the human body and how it is
absorbed and metabolized. He also explained that he had training on several
chemical breath test devices, including the Intoxilyzer, a variant of which was
used in this case. Because the trial court excluded Dr. Belloto’s testimony, the
jury was not allowed to hear any of this testimony. Therefore, we cannot say
that the improper exclusion of this testimony did not contribute to the jury’s
verdicts. This is not to say that the evidence was not sufficient to support the
jury’s finding that Hastings was intoxicated. We are simply unable to conclude
that the exclusion of Dr. Belloto’s testimony did not have any impact on the
jury’s verdict.
[26] Accordingly, we are constrained to reverse Hastings’s conviction and remand
for retrial. On remand, Dr. Belloto should be permitted to testify regarding the
effects of alcohol on a person of Hastings’ height and weight and how it is
absorbed and metabolized by the body. 4
4
Dr. Belloto also explained that he had training on several chemical breath test devices, including the
Intoxilyzer, a variant of which was used in this case. However, the evidence in the record is insufficient to
determine whether Dr. Belloto can give an informed opinion regarding how this device operates. To the
extent that Hastings argues that Dr. Belloto should have been permitted to testify regarding whether, based
upon video recordings of Hastings on the night of the incident, he believed Hastings was intoxicated, we
disagree. How a person behaves while intoxicated is not a subject that is beyond the knowledge of the
average person. Thus, Dr. Belloto’s opinion on whether Hastings’ behavior indicated that he was intoxicated
would not be helpful to the jury. On remand, Dr. Belloto may not testify regarding this issue.
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Conclusion
[27] The exclusion of Dr. Belloto’s testimony was improper and was not harmless.
We therefore reverse Hastings’ conviction and remand for retrial consistent
with this opinion.5
[28] Reversed and remanded.
Vaidik, C.J., and Barnes, J., concur.
5
Because we reverse Hastings’ conviction, we do not address his other argument that his trial counsel was
ineffective.
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