MATHIAS, Judge.
Following a jury trial, Richard Hastings ("Hastings") was convicted in Hamilton Superior Court of Level 6 felony for operating a motor vehicle while 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 Hasting's 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.
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.
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 Hasting's blood alcohol equivalent ("BAE") was 1.08 grams per 210 liters of breath.
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.
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:
Tr. pp. 17-18 (emphasis added).
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:
Tr. pp. 171-72.
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.
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.
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 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.
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. State, 675 N.E.2d 687, 691 (Ind.1996); Wiseheart v. State, 491 N.E.2d 985, 991 (Ind.1986). None of these cases involves a determination that a witness was not qualified to testify as an expert.
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:
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).
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 procedure used by the trial court to determine whether Dr. Belloto should be permitted to testify as an expert constituted fundamental error.
Hastings argues that the trial court abused its discretion by excluding Dr. Belloto's testimony.
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).
Although federal courts use the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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:
953 N.E.2d 1039, 1050 (Ind.2011) (citations and internal quotations omitted).
Accordingly, in determining whether evidence is admissible under Rule 702(b), Indiana courts may consider
Turner, 953 N.E.2d at 1050-51 (emphasis added) (some citations and internal quotations omitted).
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 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:
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.
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 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.
"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).
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. 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.
We therefore conclude that the trial court abused its discretion when it determined that Dr. Belloto was not an expert and excluded his testimony.
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)).
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.
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.
Reversed and remanded.
Vaidik, C.J., and Barnes, J., concur.
Appellant, Richard V. Hastings, by counsel, filed a Motion to Publish.
Having reviewed the matter, the Court finds and orders as follows:
Ordered 8/12/2016.
Vaidik, C.J., Mathias, Barnes, JJ., concur.
