text:
    Christina M. KOVATS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 15A01-1205-CR-224.
    Court of Appeals of Indiana.
    Feb. 7, 2013.

      Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Chandra K. Hein, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Christina M. Kovats (“Kovats”) was convicted in Dearborn Superior Court of Class B felony neglect of a dependent, Class D felony operating a vehicle while intoxicated (“OWI”), Class D felony resisting law enforcement, and Class D felony criminal recklessness. Kovats appeals and presents three issues, which we reorder and restate as:

I. Whether the trial court should have vacated the judgments of conviction on the Class D felony counts due to double jeopardy concerns;
II. Whether the trial court abused its discretion by considering the fact that the passenger in the vehicle Kovats was driving died shortly after sustaining injuries in the accident caused by Kovats’s intoxication as an aggravating factor in sentencing; and
III.Whether Kovats’s twenty-year sentence is inappropriate in light of the nature of the offense and the character of the offender.

Concluding that merging already-entered judgments on Kovats’s convictions for Class D felony resisting law enforcement and criminal recklessness was insufficient to remedy the double jeopardy issues presented by convicting Kovats on these convictions, we reverse Kovats’s convictions thereon and remand with specific instructions. We also conclude that Kovats’s maximum twenty-year executed sentence is inappropriate, and we exercise our constitutional authority to revise her sentence to fifteen years executed.

Facts and Procedural History

Kovats worked as a home healthcare nurse and was hired to look after eighty-nine-year-old N.C., who had recently suffered a stroke. On the evening of October 28, 2011, Kovats was driving N.C. home from a weekly social event that N.C. liked to attend when she stopped to fuel her car. Kovats then drove off from the gas station without paying for gasoline and subsequently fled from an Indiana State Police Trooper who tried to stop her for her theft of the gasoline. During the ensuing chase, Kovats accelerated to speeds between 102 and 116 miles per hour. She also passed several cars in a no-passing zone. Kovats eventually lost control of her car and drove across the lane of oncoming traffic and into a ditch, narrowly missing a car transporting children. N.C. was seriously injured in the wreck and had to be cut from the car, all the while screaming and moaning in pain.

N.C. was transported to a nearby hospital, where she was still moaning in pain. She also had bruises and bumps on her head, a laceration on her right hand, and was suffering from abdominal pain. She had fragments of metal and plastic embedded in her face, and her leg had swollen to such an extent that blood and lymphatic fluid were leaking from her skin. In addition, one of her fingers was almost torn off of her hand. N.C. was on a regimen of blood thinner, so the physician at the local hospital feared she might have internal bleeding; N.C. was therefore transferred to the trauma center at the University of Cincinnati Hospital. On a ten-point scale, N.C.’s pain was assessed as a ten. From the time of the accident until her death six weeks later, N.C. suffered “horrendously.” Tr. p. 791.

After the accident, Kovats’s blood tested positive for oxymorphone at a concentration of 29.6 ng/mL. For reference, a therapeutic range for a patient is usually 1-5 ng/mL. At trial, evidence was presented that oxymorphone is approximately eight to fifteen times more potent than morphine or heroin.

On November 18, 2011, the State charged Kovats with Class B felony neglect of a dependent, Class D felony operating a vehicle while intoxicated, Class D felony resisting law enforcement, and Class D felony criminal recklessness. Following a four-day jury trial, Kovats was found guilty as charged. The trial court entered judgment of conviction on the jury verdicts, but at the sentencing hearing “merged” the Class D felony convictions into the conviction for Class B felony neglect of a dependent and sentenced Kovats to twenty years incarceration. However, the trial court did not affirmatively vacate the judgments entered on the merged convictions. Kovats now appeals.

I. Double Jeopardy

Kovats claims that the trial court erred when it merged her convictions on Counts II, III, and IV into Count I for purposes of sentencing instead of explicitly vacating the judgments previously entered on those convictions. Specifically, she claims that conviction on Class B felony neglect of a dependent causing serious bodily injury and all of the Class D felony counts, two of which were also elevated by, or based on, the same serious bodily injury, constituted double jeopardy.

Kovats was found guilty of Class B felony neglect of a dependent resulting in serious bodily injury, Class D felony OWI causing serious bodily injury, and Class D felony criminal recklessness for inflicting serious bodily injury on N.C. It is apparent that conviction on all of these counts, all based on the same serious bodily injury, was improper. See Deloney v. State, 938 N.E.2d 724, 730 (Ind.Ct.App.2010)(noting that conviction of two crimes, both of which were elevated based upon the same bodily injury, subjects the defendant to double jeopardy) (citing Smith v. State, 872 N.E.2d 169, 176 (Ind.Ct.App.2007)); Bunch v. State, 937 N.E.2d 839, 847-48 (Ind.Ct.App.2010) (noting rule that multiple crimes may not be enhanced by the same bodily injury)(citing Pierce v. State, 761 N.E.2d 826, 830 (Ind.2002)).

Kovats’s conviction for criminal recklessness was based entirely on the fact that Kovats had recklessly inflicted serious bodily injury on N.C. See Appellant’s App. p. 41. We therefore reverse Kovats’s conviction for criminal recklessness and instruct the trial court to vacate this conviction on remand.

With regard to the conviction for Class D felony OWI resulting in serious bodily injury, more discussion is required. Generally, OWI as a result of being under the influence of a controlled substance is a Class C misdemeanor. See Ind.Code § 9-30-5-2(a) (“a person who operates a vehicle while intoxicated commits a Class C misdemeanor.”); Ind.Code § 9-13-2-86 (defining “intoxicated” as being under the influence of a controlled substance such that there is “an impaired condition of thought and action and the loss of normal control of a person’s faculties.”). However, if a person operates a vehicle while intoxicated and does so in a manner that endangers a person, the offense is a Class A misdemeanor. See I.C. § 9-30-5-2(b).

Kovats was convicted of OWI as a Class D felony pursuant to Indiana Code section 9-30-5-4(a), which provides in relevant part that “[a] person who causes serious bodily injury to another person when operating a vehicle ... with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person’s body; or ... while intoxicated ... commits a Class D felony.” Thus, the offenses of OWI as a Class C misdemeanor and Class A misdemeanor are lesser included offenses of Class D felony OWI causing serious bodily injury. State v. Keith, 482 N.E.2d 751, 756 (Ind.Ct.App.1985). But conviction of OWI as a Class A misdemeanor, which does not require proof of serious bodily injury, presents no double jeopardy problem in conjunction with a conviction for Class B felony neglect of a dependent causing serious bodily injury.

Therefore, the appropriate cure to the double jeopardy problem present in Kovats’s convictions for Class D felony OWI causing serious bodily injury and Class B felony neglect of a dependent causing serious bodily injury is to enter a conviction for Class A misdemeanor OWI. See Orta v. State, 940 N.E.2d 370, 377 (Ind.Ct.App.2011) (“When two convictions are found to contravene double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation.”), trans. denied. We therefore reverse Ko-vats’s conviction for Class D felony OWI and remand with instructions that the trial court vacate the judgment of conviction for Class D felony OWI and enter a judgment of conviction for the lesser-included offense of Class A misdemeanor OWI.

Kovats’s conviction for resisting law enforcement was not elevated due to serious bodily injury; therefore, conviction for Class B felony neglect of a dependent and Class D felony resisting law enforcement appear to present no double jeopardy concerns. Thus, entry of a judgment of conviction on this count was not improper.

The trial court attempted to remedy any potential double jeopardy concerns by merging all of the convictions for purposes of sentencing. However, the trial court had already entered judgment of conviction on all of the jury’s verdicts. Tr. p. 785. Kovats is correct that this was insufficient to cure the double jeopardy issue.

If a trial court does not formally enter a judgment of conviction on a jury verdict of guilty, then there is no requirement that the trial court vacate the “conviction,” and merger is appropriate. Townsend v. State, 860 N.E.2d 1268, 1270 (Ind.Ct.App.2007) (quoting Green v. State, 856 N.E.2d 703, 704 (Ind.2006)). However, if the trial court does enter judgment of conviction on a jury’s guilty verdict, then simply merging the offenses is insufficient and vacation of the offense is required. See id.; Green, 856 N.E.2d at 704; Gregory v. State, 885 N.E.2d 697, 703 (Ind.Ct.App.2008) (where trial court entered judgments of conviction on jury’s verdicts of guilty for dealing and conspiracy, then later merged the convictions for double jeopardy reasons, such merging without also vacating the conspiracy conviction was insufficient to cure the double jeopardy violation).

Here, the trial court clearly entered judgments of conviction on all of the jury’s guilty verdicts but simply merged the lesser convictions at sentencing without also vacating the judgments on these convictions. On remand, we instruct the trial court as follows: the judgment of conviction for Class D felony criminal recklessness is to be vacated; the judgment of conviction for Class D felony OWI causing serious bodily injury is to be vacated, and a judgment of conviction for Class A misdemeanor OWI is to be entered instead; the judgments of conviction for Class B felony neglect of a dependent and Class D felony resisting law enforcement are to remain intact.

II. Allegedly Improper Aggravating Factor

Kovats also claims that the trial court abused its discretion by considering as an aggravator the fact that N.C. died shortly after sustaining injuries in the accident caused by Kovats’s intoxication. Sentencing decisions “rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh’g, 875 N.E.2d 218. A trial court may abuse its sentencing discretion by: (1) failing to enter a sentencing statement, (2) finding aggravating or mitigating factors unsupported by the record, (3) omitting mitigating factors clearly supported by the record and advanced for consideration, or (4) giving reasons that are improper as a matter of law. Id. at 490-91. Because a trial court no longer has any obligation to weigh aggravating and mitigating factors against each other when imposing a sentence, it cannot now be said to have abused its discretion in failing to properly weigh such factors. Id. at 491.

Kovats claims that the State presented no evidence that N.C. died as a result of the injuries sustained during the accident caused by Kovats’s flight from the police and that the trial court therefore erred in considering N.C.’s death as an aggravating factor. The State claims that the trial court did not consider as an aggravator the fact that Kovats caused N.C.’s death; instead, the State argues that the trial court considered as aggravating the fact that, as a result of the accident, N.C. spent the last few weeks of her life in excruciating pain.

We need not spend too much time addressing this issue, because even if the trial court did abuse its discretion in sentencing Kovats, we have several options to remedy any error. Windhorst v. State, 868 N.E.2d 504, 507 (Ind.2007). We have the option to remand to the trial court for a clarification or new sentencing determination, or we may exercise our constitutional authority to review and revise the sentence. Id. In this case, we have chosen the latter option.

III. Appellate Rule 7(B)

Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of a sentence imposed by the trial court. This appellate authority is implemented through Indiana Appellate Rule 7(B), which provides that a court “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” In our review of sentences under this rule, “we must and should exercise deference to a trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due consideration’ to that decision and because we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Trainor v. State, 950 N.E.2d 352, 355 (Ind.Ct.App.2011), trans. denied. And although we have the power to review and revise sentences, “[t]he principal role of appellate review should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). It is the defendant’s burden on appeal to persuade us that the sentence imposed by the trial court is inappropriate. Trainor, 950 N.E.2d at 355; Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006).

Kovats claims that the twenty-year, maximum sentence is inappropriate and that the trial court should have instead imposed the advisory sentence of ten years. Kovats did receive the maximum sentence on her Class B felony conviction, and the maximum possible sentences are generally most appropriate for the worst offenders. Simmons v. State, 962 N.E.2d 86, 92 (Ind.Ct.App.2011). Although the maximum possible sentences are generally most appropriate for the worst offenders, this rule is not an invitation to determine whether a worse offender could be imagined, as it is always possible to identify or hypothesize a significantly more despicable scenario, regardless of the nature of any particular offense and offender. Simmons, 962 N.E.2d at 92. By stating that maximum sentences are ordinarily appropriate for the worst offenders, we refer generally to the class of offenses and offenders that warrant the maximum punishment, and this encompasses a considerable variety of offenses and offenders. Id. at 92-93.

As to the nature of the offense, the trial court thoroughly explained the horrific nature of Kovats’s offense. Although she was not charged with the crime of theft of the gasoline at issue, Kovats led an investigating police officer on a dangerous chase at speeds well over 100 miles per hour and almost hit another car head-on. N.C. was grievously injured by the accident, and suffered excruciating pain — so much so that an experienced nurse at a trauma center cried while testifying about the pain she saw N.C. endure. Kovats also had a large amount of oxymorphone in her blood and showed little concern for N.C. at the scene of the accident. She also attacked an EMT and refused to answer questions regarding N.C.’s condition and identity. The betrayal of trust shown by Kovats was truly extraordinary, and the injuries and pain suffered by N.C. were extreme. Kovats’s crime was wholly unnecessary and senseless, and fits within the classification of the worst offense.

We must also consider Kovats’s character. As far as the record before us shows, this is Kovats’s first felony conviction. Kovats’s prior criminal history was not extensive, but it did include a 2006 conviction for OWI in Ohio. She was later convicted in Ohio for driving while suspended, possession of drug paraphernalia, and theft. Her convictions in Indiana include maintaining a common nuisance and public intoxication. Kovats has also violated her probation multiple times. It is apparent that Kovats does not possess a stellar character.

Nevertheless, we are unable to say that she is among the “worst offenders.” Most of Kovats’s offenses are related to her obvious addiction to narcotics. Although this is not necessarily a mitigating factor, it does place her behavior in perspective. Too, there is no indication that Kovats has ever served a long-term executed sentence. Instead, she was consistently given suspended sentences in the past. See Powell v. State, 751 N.E.2d 311, 317 (Ind.Ct.App.2001) (concluding that where defendant had not previously been incarcerated, and where nothing in the record indicated otherwise, the presumptive sentence should be sufficient to give defendant adequate correctional and rehabilitative treatment). Also, since her arrest in the present case, she sought out treatment for her addiction in jail. See Tr. p. 828. Kovats also has four children, one of whom suffers from cystic fibrosis.

After giving due consideration to the trial court’s sentencing decision, and considering the nature of Kovats’s offense and Kovats’s character, we disagree with Ko-vats that she should receive the advisory sentence of ten years. The horrific nature of her offense alone supports the imposition of a sentence greater than the advisory. At the same time, we are unable to conclude that Kovats is among the worst offenders. We therefore exercise our constitutional authority to revise Kovats’s sentence to an executed term of fifteen years.

Conclusion

Kovats’s convictions for Class B felony neglect of a dependent, Class D felony criminal recklessness, and Class D felony OWI constituted double jeopardy because all three convictions were based on, or elevated by, the same serious bodily injury. Merging these convictions for purposes of sentencing was insufficient to cure the double jeopardy problems because the trial court had already entered judgments of conviction on all counts. On remand, the trial court is instructed to vacate Ko-vats’s convictions for Class D felony criminal recklessness and Class D felony OWI, and to enter a judgment of conviction and concurrent sentence on the lesser-included offense of Class A misdemeanor OWI. Lastly, Kovats’s maximum executed sentence of twenty years for her conviction for Class B felony is inappropriate, and we remand with instructions that the trial court enter a sentencing order reflecting our revision of Kovats’s sentence to fifteen years executed on that conviction.

Reversed and remanded with instructions.

BAKER, J., and BAILEY, J., concur.

      . We heard oral argument in this case on January 16, 2013, at Union County High School in Liberty, Indiana. We would like to extend our thanks to the students, staff, faculty, and administration of the school for their hospitality, and we commend counsel for the quality of their written and oral advocacy.

      . The presentence investigation report does not indicate whether Kovats's prior convictions in Ohio were felonies or misdemeanors.

      . On October 13, 2011, after her arrest in the present case, the State charged Kovats with six counts of Class C felony forgery and two counts of Class D felony theft. But, as of the date of sentencing, Kovats had not been convicted of these charges. See Tr. pp. 856-57 (noting that these charges were "pending” at the time of sentencing).


source: Caselaw Access Project

author: BROWN, Judge. VAIDIK, Judge,

license: Public Domain

text:
    Edwin JONES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1204-CR-292.
    Court of Appeals of Indiana.
    Feb. 11, 2013.

      Joel M. Schumm, Brian A. Karle, Certified Legal Intern, Appellate Clinic, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Edwin Jones appeals his conviction and sentence for operating a vehicle while intoxicated as a class A misdemeanor. Jones raises three issues which we revise and restate as:

I. Whether the trial court abused its discretion and violated Jones’s confrontation rights by admitting a certificate of inspection asserting the accuracy of police testing equipment;
II. Whether the court abused its discretion in ruling on certain eviden-tiary matters; and
III. Whether the court erred in sentencing him.

We affirm.

FACTS

On May 29, 2010, at approximately 8:26 p.m., Indiana State Police Trooper Dan Madison was traveling northbound on Emerson Avenue and was stopped at a traffic light at Southeastern Avenue in Marion County, Indiana. After the light turned green, Trooper Madison began to proceed through the intersection, noticed a car driven by Jones approaching from his right side on Southeastern, and had to brake and let Jones pass because Jones did not stop at the red light. Jones passed “right in front” of Trooper Madison’s police car and turned right to head northbound on Emerson, and Trooper Madison began to follow him. Transcript at 38. Trooper Madison observed Jones weaving in and out of his lane, crossing the center line twice. He also observed Jones attempt to pass in a no-passing zone and drift onto the shoulder of the road, almost hitting parked vehicles. When Jones attempted to pass in the no-passing zone, Trooper Madison was forced to swerve into oncoming traffic with Jones to alert the drivers to avoid Jones’s vehicle, and he then initiated a traffic stop of Jones.

As Trooper Madison approached the driver’s side of the vehicle he noticed a strong odor of alcoholic beverages and that Jones’s eyes were bloodshot and red. He asked Jones for his license and registration, and Jones slurred his speech when responding and “fumbled through to get his driver’s license out.” Id. at 42. Jones also could not locate his registration. Trooper Madison asked Jones to step out of the vehicle and Jones “swung himself out” turning both feet and “tumbled on the ground first and then stood up.” Id. at 43. Trooper Madison led Jones to the rear of the vehicle and noticed Jones stagger and lean against the vehicle to steady his balance. Trooper Madison then administered three field sobriety tests including the One Leg Stand, the Nine Step Walk, and the Horizontal Gaze Nystagmus (“HGN”) test, each of which Jones failed.

Based upon Jones’s driving behaviors, Trooper Madison’s observations of Jones, and Jones’s failure of the field sobriety tests, Trooper Madison determined that he had probable cause to believe that Jones was intoxicated and he read Jones the Indiana Implied Consent Law and asked Jones to take a chemical breath test on a “BAC DataMaster” machine. State’s Exhibit 4. Jones agreed, and Trooper Madison transported him to the Arresting Processing Center (“APC”) where the closest certified breath testing device was located. While en route to the APC, Jones stated that “he should have listened to his friends” who did not want him to drive and asked Jones to stay at their place. Transcript at 69. Trooper Madison administered the breath test to Jones resulting in a “subject sample” reading of .18. Id. at 65. Jones was placed under arrest.

COURSE OF PROCEEDINGS

On May 30, 2010, the State charged Jones with Count I, operating a vehicle while intoxicated as a class A misdemean- or; and Count II, operating a vehicle above .15 as a class A misdemeanor. On March 26, 2012, the court held a jury trial and evidence consistent with the foregoing was presented. At trial, Trooper Madison testified that he was certified as a chemical test operator by the Indiana Department of Toxicology at the time Jones’s chemical test was administered, and the State admitted State’s Exhibit 2 without objection which was a list of police officers who were certified to administer chemical breath tests and contained Trooper Madison’s name. The State then introduced as State’s Exhibit 3 a certificate of inspection (the “Certification”) stating that “[t]he instrument is in good operating condition, satisfying the accuracy requirements set out by State Department of Toxicology Regulations” as of May 3, 2010. State’s Exhibit 3. Jones objected to the exhibit and asked preliminary questions of Trooper Madison demonstrating that he was not Michael F. Neerman, Ph.D., the Acting Director of the State Department of Toxicology, who was the signatory on the Certification, and Jones argued that the Certification was a violation of Jones’s rights under the Confrontation Clause. The court overruled Jones’s objection and admitted the Certification.

The State proceeded to question Trooper Madison regarding the procedures he used in administering the chemical test, in which at the outset the State requested that the court take judicial notice of the chemical test procedures enacted by Ind. Administrative Rule 260 and the court did so. The State proceeded to ask Trooper Madison a series of questions to determine whether he followed the procedures in administering Jones’s test, and at one point Jones objected to the State’s questions as leading. The court overruled the objection, the State proceeded, and Jones entered a continuing objection to the State’s questioning which the court noted and overruled.

Near the end of the State’s direct examination of Trooper Madison, it introduced as State’s Exhibit 5 the probable cause affidavit Trooper Madison completed “while [he] was waiting for the twenty (20) minutes at APC.” Id. at 72. Jones objected to the exhibit as hearsay, the State responded that Trooper Madison “authenticated” the exhibit, and the court overruled Jones’s objection. Id. at 74. The State did not question Trooper Madison regarding the contents of the probable cause affidavit, and it rested soon after the probable cause affidavit was admitted.

At the conclusion of the trial, the jury found Jones guilty as charged. The court entered its judgment of conviction and merged Count II into Count I. On April 18, 2012, the court held a sentencing hearing and sentenced Jones to 365 days with forty days executed to be served on home detention and 325 days suspended to probation.

ISSUES/ANALYSIS

I.

The first issue is whether the court abused its discretion and violated Jones’s confrontation rights by admitting the Certification. Generally, we review the trial court’s ruling on the admission of evidence for an abuse of discretion. Noojin v. State, 730 N.E.2d 672, 676 (Ind.2000). We reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997), reh’g denied. Even if the trial court’s decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App.1999), reh’g denied, trans. denied. However, here because the issue is one of constitutional law, we review Jones’s claim de novo. See King v. State, 877 N.E.2d 518, 521 (Ind.Ct.App.2007) (constitutional challenges are reviewed de novo); see also U.S. v. Aguila-Urbay, 480 Fed.Appx. 564, 566 (11th Cir.2012) (“We review evidentiary rulings for an abuse of discretion.... However, we review ‘de novo the question of whether hearsay statements are testimonial for purposes of the Confrontation Clause.’ ”) (quoting United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir.2010)); United States v. Nettles, 476 F.3d 508, 517 (7th Cir.2007) (“We review de novo a district court ruling that affects a defendant’s Sixth Amendment rights.”).

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. “A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.” Pendergrass v. State, 913 N.E.2d 703, 705 (Ind.2009) (citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)), cert. denied, — U.S. —, 130 S.Ct. 3409, 177 L.Ed.2d 323 (2010); see also Davis v. Washington, 547 U.S. 813, 821-822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford, 541 U.S. at 68-69,124 S.Ct. at 1374.

Jones argues that the Certification is a testimonial statement implicating his rights under the Confrontation Clause and that this court’s previous statements that such certifications are nontestimonial are incorrect, noting in particular that our holding in Ramirez v. State, 928 N.E.2d 214 (Ind.Ct.App.2010), tra/ns. denied, is the only decision which has considered the issue since the United States Supreme Court’s opinion in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and that at this stage “it is appropriate to reconsider this line of cases in light of’ Bullcoming v. New Mexico, — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). Appellant’s Brief at 4. Jones argues that the Certification is testimonial because it “represents ‘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,’ ” Id. at 10 (quoting Crawford, 541 U.S. at 52, 124 S.Ct. at 1364), and he directs us to Ind.Code § 9-30-6-5, the statute which requires the certification, and in particular subsection (c) which states: “Certified copies of certificates ... are admissible in a proceeding under this chapter, IC 9-30-5.... ” Id. at 9-10. Jones argues that “[proceedings under TC 9-30-5’ are criminal prosecutions of individuals charged with OVWI, the very proceedings to which [he] was subjected,” and that thus “the analyst who signs the Certification is on notice that the Certification constitutes prima facie evidence in a criminal proceeding for OVWI and that the results of a chemical test ... cannot be admitted ... unless the analyst certifies that the instrument is in working order.” Id. Jones also argues that the Certification is a “formal document” and that accordingly, under Bullcoming, it is testimonial. Id. at 11.

The State argues that “[tjhis Court has repeatedly held that such certifications are not testimonial” and that nothing in Bull-coming alters this analysis. Appellee’s Brief at 6. The State argues that certifications like the one at issue here “are qualitatively different from the types of hearsay that the Supreme Court has described as testimonial” because they “are not prepared with reference to any particular case or any particular defendant; rather, they serve a ministerial or administrative function and are prepared in a routine matter without regard to whether they are ever used in any case, much less any particular case.” Id. at 7. The State argues that the United States Supreme Court in Bullcoming reiterated the holding of Melendez-Diaz and underscored that laboratory test results are testimonial in nature, and it did not alter the definition of what is testimonial or cast doubt on this court’s previous decisions. The State also argues that any error is harmless because the State did not need to prove any particular blood alcohol level and it presented overwhelming evidence of intoxication.

In Ramirez, this court addressed whether certificates of inspection are testimonial thus implicating the Confrontation Clause. We began by observing that by Indiana statute chemical breath test results are inadmissible “unless the test operator, test equipment, chemicals used in the test, and test techniques have been approved in accordance with the rules promulgated by the Indiana University School of Medicine Department of Pharmacology and Toxicology.” 928 N.E.2d at 216 (citing Ind.Code § 9—30—6—5(d) (subsequently amended by Pub.L. No. 158-2011, § 2 (eff. July 1, 2011))). We noted in particular that the person administering the test must be certified, the equipment must have been inspected and approved by the Department of Toxicology, and the operator must follow the procedures approved, and we observed that “Certificates issued by the Department of Toxicology indicating that breath test equipment is in good operating condition are admissible at trial and constitute prima facie evidence that the equipment (1) was inspected and approved by the Department of Toxicology and (2) was in proper working condition on the date the breath test was administered if the date of approval was not more than 180 days before the date of the test.” Id. (citing Ind.Code § 9 — 30—6—5(c)). We also observed that Ind.Code § 9-30-6-5(b) mandates that such certificates “shall be sent to the clerk of the circuit court in each county where the breath test operator, equipment, or chemicals are used to administer breath tests.” Id. at 216-217 (quotations omitted).

In addressing whether such certificates are testimonial, we observed that Crawford did not “provide a comprehensive definition of ‘testimonial,’ ” and in the years following Crawford this court has addressed this issue and “routinely concluded that the certificates are nontestimonial.” Id. at 217. We summarized three rationales behind those decisions and articulated them as follows:

(1) the certificates are not prepared at a judicial proceeding or during police interrogation!;] (2) the certificates are not sworn affidavits and do not contain formalized testimonial materials!;] and (3) although inspection certificates are prepared for purposes of criminal litigation, certification of breath-test machines is removed from the direct investigation or direct proof of whether any particular defendant has operated a vehicle while intoxicated; the certificates are not prepared in anticipation of litigation in any particular case or with respect to implicating any specific defendant.

Id. at 217-218 (citations and quotations omitted). We also observed that “[o]ur holdings were substantially in accord with the decisions of other jurisdictions.” Id. at 218.

As acknowledged by the parties, the Ramirez decision was handed down following the U.S. Supreme Court’s pronouncements in Melendez-Diaz which “elaborated on the meaning of ‘testimonial’ within the realm of forensic chemical testing.” Id. In Melendez-Diaz, the State of Massachusetts introduced documents which were sworn to by state laboratory analysts before a notary public indicating that a substance seized from the defendant was cocaine of a certain weight. Id. The Court held that such documents were testimonial in nature triggering Sixth Amendment protections because they were “plainly” affidavits, or sworn declarations of fact, “which were admitted to prove that the substance was cocaine, and the documents 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,’ and they were in fact prepared for the sole purpose of providing evidence in a subsequent prosecution.” Id. (quoting Melendez-Diaz, 557 U.S. at 311, 129 S.Ct. at 2532) (quoting Crawford, 541 U.S. at 52, 124 S.Ct. at 1364))).

We then turned our attention to specific language in Melendez-Diaz which addressed concerns similar to those at issue in Ramirez, noting that the dissent in Melendez-Diaz expressed concern for the rule of that ease as follows:

Consider the independent contractor who has calibrated the testing machine. At least in a routine case, where the machine’s result appears unmistakable, that result’s accuracy depends entirely on the machine’s calibration. The calibration, in turn, can be proved only by the contractor’s certification that he or she did the job properly. That certification appears to be a testimonial statement under the Court’s definition: It is a formal, out-of-court statement, offered for the truth of the matter asserted, and made for the purpose of later prosecution. It is not clear, under the Court’s ruling, why the independent contractor is not also an analyst.

Id. at 218-219 (quoting Melendez-Diaz, 557 U.S. at 333, 129 S.Ct. at 2545 (Kennedy, J., dissenting)). The majority of the Court responded:

Contrary to the dissent’s suggestion, we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.... Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.

Id. at 219 (quoting Melendez-Diaz, 557 U.S. at 311 n. 1, 129 S.Ct. at 2532 n. 1) (emphases added).

We held that Melendez-Diaz did not disturb this court’s prior precedent and that, in particular, the exchange cited above “appears to leave our prior decisions intact.” Id. We noted that although the statement that documents certifying equipment maintenance “may well qualify as nontestimonial” is “not decisive,” it “at a minimum [ ] leaves the question unresolved and demands the same type of scrutiny that we have undertaken since Crawford” and as such our prior precedents remain valid. Id. In so holding, we stated as follows:

The certificates do not comprise ex parte in-court testimony or its functional equivalent. They are not formalized testimonial materials like sworn affidavits. Moreover, while the certificates contemplate use in criminal trials, they are completed in advance of any specific alleged drunk-driving incident and breath test administration and are not created for the prosecution of any particular defendant.

Id.

To the extent that Jones suggests Bull-coming changes matters, we observe that in that case, the Court began by reiterating its holding in Melendez-Diaz that “a forensic laboratory report stating that a suspect substance was cocaine ranked as testimonial for purposes of the Sixth Amendment’s Confrontation Clause” because “[t]he report had been created specifically to serve as evidence in a criminal proceeding” and that “[a]bsent stipulation ... the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the statements made in the report.” 181 S.Ct. at 2709. The Court noted that in the case before it, defendant Bullcoming was arrested for driving while intoxicated, and evidence was submitted in the form of a “forensic laboratory report certifying that [his] blood-alcohol concentration was well above the threshold for aggravated DWL” 181 S.Ct. at 2709. Below, the New Mexico Supreme Court had ruled that Melendez-Diaz was satisfied when, at trial, “the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample,” holding that “although the blood-alcohol analysis was ‘testimonial,’ the Confrontation Clause did not require the certifying analyst’s in-court testimony” and that “live testimony of another analyst satisfied the constitutional requirements.” Id. at 2709-2710. The U.S. Supreme Court held that such “surrogate testimony ... does not meet the constitutional requirement” and that “[t]he accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” Id. at 2710.

In so holding, the Court reasoned that such testimony would be akin to allowing an officer other than the one who observed factual events and recorded them in a police report to testify to such facts “so long as that officer was equipped to testify about any technology the observing officer deployed and the police department’s standard operating procedures,” which, the Court has stated “emphatically” is not allowable. Id. at 2714-2715. The Court went on to reiterate that in Melendez-Diaz, it held that “[t]he ‘certificates of analysis’ prepared by the analysts who tested the evidence ... were ‘incontrovertibly ... affirmation[s] made for the purpose of establishing or proving some fact’ in a criminal proceeding.” Id. at 2716 (emphasis added). It noted that the State’s arguments in that case “fare[ ] no better here” than in Melendez-Diaz, because “[a] document created solely for an ‘evidentiary purpose,’ ... made in aid of a police investigation, ranks as testimonial,” and it addressed an argument advanced by the State that the report at issue in Bull-coming was “unsworn,” rather than “sworn to before a notary public” as was the case in Melendez-Diaz, holding that the document was still considered formal and was an unavailing distinction which did not “remove [the certificate] from Confrontation Clause governance” because such a rule “would make the right to confrontation easily erasable.” Id. at 2717.

Thus, the Bullcoming Court was not concerned with whether the certificate of analysis was sworn or unsworn but rather examined the nature of the document, noting that it was a formal document created for the purpose of establishing or proving a fact in a criminal proceeding. To that end, we observe that in Ramirez we were similarly concerned with the document’s nature and not its status as sworn or un-sworn. Indeed, in our holding we stated that documents such as the Certification were not testimonial because they “are not formalized testimonial materials like sworn affidavits.” 928 N.E.2d at 219 (emphasis added). Bullcoming observed, and we agree, that the fact that an affidavit is not sworn will not remove protections granted by the Confrontation Clause, but we disagree with Jones’s characterization of the Certification as an affidavit. Indeed, as we observed in Ramirez, the Court in Melendez-Diaz defined an affidavit as a “declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” Id. at 218 (quoting Melendez-Diaz, 557 U.S. at 310, 129 S.Ct. at 2532 (quoting Black’s Law Dictionary 62 (8th ed. 2004))) (emphasis added). Also, this court has defined an affidavit as “a written statement of fact which is sworn to as the truth before an authorized officer.” In re Paternity of H.R.M., 864 N.E.2d 442, 448 (Ind.Ct.App.2007) (quoting Jordan v. Deery, 609 N.E.2d 1104, 1110 (Ind.1993)) (emphasis added). Here, the Certification was offered merely to satisfy a statutory requirement that the breath test equipment was “in good operating condition, satisfying the accuracy requirements set out by the State Department of Toxicology Regulations,” as part of the evidentiary foundation for introducing the results as State’s Exhibit 4. State’s Exhibit 3; see also Ind.Code § 9-30-6-5.

Also, similar to Jones’s arguments based on Bullcoming and the second rationale from Ramirez, Jones scrutinizes the third rationale and argues that the U.S. Supreme Court has rejected this rationale in Williams v. Illinois, — U.S. —, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), specifically arguing that a majority of the justices agree “that a ‘targeted’ individual is not required to invoke the Confrontation Clause.” Appellant’s Brief at 15 n.6. Jones directs us to an exchange in Williams in which a plurality of the Court stated:

The abuses that the Court has identified as prompting the adoption of the Confrontation Clause shared the following two characteristics: (a) they involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (b) they involved formalized statements such as affidavits, depositions, prior testimony, or confessions.

132 S.Ct. at 2242. Justice Kagan authored a dissent, joined by Justices Sealia, Ginsburg, and Sotomayor, which disagreed with the Court’s language of “accusing a targeted individual:”

As its first stab, the plurality states that the [document at issue, which was a DNA report] was “not prepared for the primary purpose of accusing a targeted individual.” Ante, at 2243. Where that test comes from is anyone’s guess. Justice THOMAS rightly shows that it derives neither from the text nor from the history of the Confrontation Clause. See ante, at 2263 (opinion concurring in judgment). And it has no basis in our precedents. We have previously asked whether a statement was made for the primary purpose of establishing “past events potentially relevant to later criminal prosecution” — in other words, for the purpose of providing evidence. Davis, 547 U.S., at 822, 126 S.Ct. 2266; see also Bullcoming, 564 U.S., at —, 131 S.Ct., at 2716-2717; [Michigan v.] Bryant, 562 U.S., at —, —, 131 S.Ct. [1143], at 1157, 1165 [179 L.Ed.2d 93 (2011)]; Melendez-Diaz, 557 U.S., at 310-311, 129 S.Ct. 2527; Crawford, 541 U.S., at 51-52, 124 S.Ct. 1354. None of our cases has ever suggested that, in addition, the statement must be meant to accuse a previously identified individual; indeed, in Melendez-Diaz, we rejected a related argument that laboratory “analysts are not subject to confrontation because they are not ‘accusatory’ witnesses.” 557 U.S., at 313, 129 S.Ct. 2527.

Id. at 2273-2274 (Kagan, J., dissenting). Jones argues that the third Ramirez rationale is substantially similar to the “accusatory” test expressed by the plurality, and the fact that three justices agreed with the views expressed in Justice Kagan’s dissent, plus the fact that Justice Thomas did not join with the plurality’s reasoning regarding the “accusatory” test, indicates that a majority of the U.S. Supreme Court disagree with this rationale as valid Confrontation Clause jurisprudence.

As noted above, the third rationale provided in Ramirez as to why certificates of inspection including the Certification at issue in this case are nontestimonial was stated as:

although inspection certificates are prepared for purposes of criminal litigation, certification of breath-test machines is removed from the direct investigation or direct proof of whether any particular defendant has operated a vehicle while intoxicated; the certificates are not prepared in anticipation of litigation in any particular case or with respect to implicating any specific defendant.

928 N.E.2d at 218 (quotations omitted). To the extent that the wording of this rationale resembles the “accusatory” test set forth by the plurality opinion in Williams, we are inclined to agree that any rationale which relies upon the fact that a piece of evidence does not target a particular defendant as a basis for determining that such evidence is nontestimonial appears to be disapproved of by a majority of the Justices of the U.S. Supreme Court.

However, we find that any confusion with the wording of the third Ramirez rationale indicating that it contains an “accusatory” element can be rectified by examining other statements by the Court regarding a statement’s “primary purpose.” As noted above, the Court held in Davis that statements are “testimonial” where “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” 547 U.S. at 822, 126 S.Ct. at 2274. Also, in Bryant the Court stated:

Whether formal or informal, out-of-court statements can evade the basic objective of the Confrontation Clause, which is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial. When, as in Davis, the primary purpose of an interrogation is to respond to an “ongoing emergency,” its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.

131 S.Ct. at 1155.

Here, the Certification’s relevance is merely a creature of statute aimed at establishing the reliability of chemical breath test analysis results as a foundational requirement for submitting breath test results, which, we note, is a safeguard the legislature put in place for the benefit of the defendant. To that end, we note that the status of breath testing equipment cannot be termed a past event relevant to Jones’s prosecution. Put another way, if Ind.Code § 9-30-6-5 did not exist, the State would not have a need to submit the Certification and could simply introduce the results of the breath test, subject, of course, to the defendant’s Confrontation Clause protections. We also note that hearsay exceptions are not even relevant in this matter because Ind.Code § 9-30-6-5(c) specifically provides that such certificates of inspection are admissible to establish that certain breath test equipment is in good operating condition.

Thus, based upon Williams and other recent statements from the U.S. Supreme Court, we reframe the third rationale articulated in Ramirez to provide that although certificates of inspection are kept on file by the court clerk and may be duplicated for use in court, their primary purpose is to ensure that certain breath test equipment is in good operating condition in compliance with Ind.Code § 9-30-6-5. However, we reaffirm our prior precedents and conclude that the Certification was nontestimonial and that the court did not err in admitting it.

Moreover, we agree with the State that any such error regarding the admission of the Certification and the attendant breath analysis was harmless. As noted by the State, it did not have to prove a certain blood alcohol level to sustain Jones’s conviction, and it elicited from Trooper Madison extensive and explicit testimony demonstrating that Jones operated a vehicle while intoxicated. Trooper Madison identified multiple instances in which Jones displayed unsafe driving behavior consistent with a person being intoxicated including nearly hitting Trooper Madison’s police car, weaving and twice crossing the center line, passing in a no-passing zone, and nearly hitting parked vehicles parked on the shoulder of the road. Trooper Madison noted that he smelled alcohol when he encountered Jones, that Jones’s eyes were red and bloodshot, that Jones fumbled with his license and could not locate his registration, that when Jones exited his vehicle he displayed a lack of balance, that Jones staggered as he walked and leaned against his vehicle to steady himself, and that Jones failed three field sobriety tests. See Timberlake v. State, 690 N.E.2d 243, 255 (Ind.1997) (holding that “[e]ven if a trial court errs in a ruling on the admissibility of evidence, we will reverse only if the error is inconsistent with substantial justice” and that the error was harmless), reh’g denied.

II.

The second issue is whether the court abused its discretion in ruling on certain evidentiary matters. As noted above, this court reviews evidentiary rulings for an abuse of discretion, and such rulings are subject to harmless error analysis. Noojin, 730 N.E.2d at 676; Fox, 717 N.E.2d at 966. Jones argues that the court abused its discretion when it: (A) admitted the probable cause affidavit; and (B) allowed the State to use leading questions. We address each of Jones’s arguments separately.

A. Probable Cause Affidavit

Jones argues that the court erred in allowing the State to admit the probable cause affidavit because it constitutes inadmissible hearsay. Jones notes that the State responded to his objection by stating that Trooper Madison “authenticated” the document and specifically points to the following colloquy:

[The State]: Your Honor, at this time the State moves to admit State’s Exhibit 5 into evidence.
THE COURT: Any Objection?
[Jones’s Counsel]: Yes, Judge, the Defense objects; this is hearsay.
[The State]: Your Honor, the trooper is the individual who compiled this document; he filled it out. His testimony you’ve heard prior that he filled it out while he was waiting at the APC waiting with [Jones], So we do feel that he has authenticated it.
[Jones’s Counsel]: It’s still hearsay.... It doesn’t matter whether he’s present here today; there’s no, no foundation has been laid for any exception to the general rule....
THE COURT: ... [A]ny response to that?
[The State]: Your Honor we do feel that the witness, his individual documents it’s all authenticated. His testimony does mirror what is noted in the Probable Cause Affidavit; and we do feel that this is admissible.

Transcript at 73-74; Appellant’s Brief at 16-17. Jones argues that a review of the transcript reveals that the probable cause affidavit was offered to prove the truth of the facts contained therein and “Authentication” is not a hearsay exception. Appellant’s Brief at 17 (citing Ind. Evidence Rule 803).

The State argues that although it agrees that “authentication” is not a valid response to a hearsay objection, this court may affirm an evidentiary ruling on any basis apparent in the record and here the probable cause affidavit was properly admitted as a present sense impression under Ind. Evidence Rule 803(1). The State argues that this hearsay exception applies because Trooper Madison “testified that he filled out the probable cause affidavit while he was waiting the prescribed twenty-minute period before performing the chemical breath test on [Jones] at the APC and finished the last part pertaining to the test results before he left the APC.” Appellee’s Brief at 18. The State argues that any error was at most harmless, noting that the “probable cause affidavit was merely cumulative of the officer’s testimony describing the stop, his observations during it, the failed sobriety tests, the results of the breath test, and [Jones’s] admissions” and that the State presented overwhelming independent evidence that Jones operated a vehicle while intoxicated “such that there is no possibility the probable cause affidavit contributed to the verdict.” Id. at 18-19.

In his reply brief, Jones argues that the State cites no case law for admitting a probable cause affidavit under the present sense impression hearsay exception and that it appears to be an issue of first impression, that Trooper Madison indicated in his testimony he did not fill out the probable cause affidavit until about an hour subsequent to his initial interactions with Jones and thus had ample time to reflect on the events, and that Ind. Evidence Rule 808(8), the public records hearsay exception, specifically states that probable cause affidavits do not qualify under the rule and accordingly “[r]eading Rule 803 as a whole, it would make little sense to affirmatively exclude probable cause affidavits from one exception, only to allow them to be admitted under another.” Appellant’s Reply Brief at 14-15 n.8.

Here, at the end of the State’s direct examination of Trooper Madison, it introduced and the court admitted over objection the probable cause affidavit. Even assuming that the probable cause affidavit was offered for the truth and the State’s reply at trial that Trooper Madison authenticated the document was not a viable reply, we find any error in its admission was harmless. As noted above, Trooper Madison’s testimony alone demonstrated that Jones operated a vehicle while intoxicated. He identified specific instances of unsafe driving behavior displayed by Jones, noted that he smelled alcohol and that Jones displayed signs of intoxication including red and bloodshot eyes and a lack of balance, and that Jones failed three field sobriety tests.

The evidence presented at trial was overwhelming and, indeed, Jones does not identify a single fact that the State admitted into evidence via the probable cause affidavit which was not cumulative of evidence admitted via Trooper Madison’s lawful testimony. To the extent that the court erred in admitting the probable cause affidavit, it tends “only to disclose a fact proven by other properly admitted evidence,” and accordingly any error is harmless. Cornett v. State, 536 N.E.2d 501, 506 (Ind.1989).

B. Leading Questions

Indiana Evidence Rule 611(c) provides: “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony.” A leading question is one that suggests the desired answer to the witness. Williams v. State, 733 N.E.2d 919, 922 (Ind.2000). The use of leading questions is limited in order to prevent the substitution of the attorney’s language for the thoughts of the witness as to material facts in dispute. Id. The trial court is afforded wide discretion in allowing leading questions, and the court’s decision will be reversed only for an abuse of discretion. Bussey v. State, 536 N.E.2d 1027, 1029 (Ind.1989).

Jones argues that the court erred when it allowed the State to use leading questions during its direct examination of Trooper Madison which were objected to by Jones. Jones highlights examples including “(1) ‘Did you observe [Jones] for (20) minutes prior to the administering of the test?’; (2) ‘When you began the chemical test was the green Led light on the instrument displayed [sic] lit?’; (3) ‘When the please blow message appeared in the display, did you place a new mouth piece in the breath tube and instruct the defendant to blow into it?’ ” Appellant’s Brief at 17-18. Jones argues that following his objection the court did not explain why leading questions were appropriate and the State made no attempt to question Trooper Madison in a non-leading fashion.

The State argues that the court did not abuse its discretion in allowing the State’s line of questioning because Trooper Madison “had already testified that he was certified to perform breath tests and had followed the established procedures for a breath test, and the court had taken judicial notice of what those procedures were.” Appellee’s Brief at 21. The State argues that regardless, Jones “has not and cannot show any ‘substantial injury’ and thus any error is harmless,” noting specifically that Jones’s counsel in his closing argument “never argued that the test had been performed improperly.” Id. at 21-22. The State also notes in arguing harmless error that “the breath test evidence was unnecessary to sustain a conviction for operating while intoxicated_” Id. at 22.

At trial, the State elicited testimony from Trooper Madison, and Jones objected as follows:

[The Prosecutor]: Trooper Madison, what time did you administer the chemical test to the defendant?
A: It was after the twenty (20) minutes once I transported him to the APC. My twenty (20) minutes started once we walked into the blood test room and sat down. I used the clock on the instrument.
[The Prosecutor]: Prior to administering the test, did you inspect [Jones’s] mouth for any foreign objects?
A: Yes.
[The Prosecutor]: Did you find anything in [Jones’s] mouth?
A: No.
[The Prosecutor]: Did you observe [Jones] eat, smoke, drink, or place anything in his mouth during this time?
A: No.
[The Prosecutor]: When you began the chemical test was the green Led light on the instrument displayed lit?
A: Yes.
[The Prosecutor]: Did you then press the “run” switch, enter the password, and enter the evidence tape?
A: Yes.
[Jones’s Counsel]: The Defense is going to object at this point. It sounds like we’re just going to hear a string of leading questions about what he did. They need to be in proper format.
THE COURT: Overruled. Proceed.
[The Prosecutor]: Did you then follow the display request for information and enter the requested information into the keyboard?
A: Yes.
[The Prosecutor]: When the please blow message appeared in the display, did you place a new mouth piece in the breath tube and instruct [Jones] to blow into it?
[Jones’s Counsel]: Judge, objection. At this time the Defense would enter a continuing objection to each of these questions.
THE COURT: Noted for the record. Overruled....

Transcript at 61-68. The State asked Trooper Madison a few more yes/no questions related to administering the chemical breath test to Jones.

As noted above, the policy behind Ind. Evidence Rule 611(c) is to prevent an attorney from substituting his or her own language “for the thoughts of the witness as to material facts in dispute.” Williams, 733 N.E.2d at 922 (emphasis added). The Indiana Supreme Court has likewise emphasized that a leading question is one “which, embodying a material fact, admits of a conclusive answer in the form of a simple ‘yes’ or ‘no.’ ” Doerner v. State, 500 N.E.2d 1178, 1182 (Ind.1986). Also, where a witness’s testimony is not distorted to conform to the possibilities suggested by the question, any error re-suiting from the question is harmless. Id. at 1183.

Here, prior to the State’s line of questioning at issue, Trooper Madison testified that he was certified as a chemical breath test operator by the Indiana Department of Toxicology. The State then asked: “Trooper Madison, what procedures did you use to administer the chemical test?” and he replied: “[Y]ou got to follow the guidelines. They’re posted right above every instrument, and you look right up at it, and follow each line as you go.” Transcript at 61. Following this exchange, the State requested that the court take judicial notice of the procedures, the court did so, and the State thereafter asked Trooper Madison the yes/no questions recited above establishing that he followed the procedures regarding Jones’s test.

Based upon our review of the record, we find that the State’s questioning challenged by Jones did not concern material facts which were in dispute. Indeed, Jones does not argue that Trooper Madison improperly administered the chemical breath test or otherwise demonstrate that Jones was prejudiced by the State’s decision to ask yes/no questions establishing that the test complied with the procedures. In so holding, we again recognize that as noted above, evidence pertaining to the chemical breath test was superfluous to sustaining Jones’s conviction as the State presented a multitude of other evidence establishing that he operated a vehicle while intoxicated. Accordingly, we conclude that the court’s ruling regarding the State’s line of questioning does not require reversal.

III.

The third issue is whether the sentence imposed by the court was invalid. In Jones’s abstract of judgment, the court stated that “following completion of the executed portion of the sentence defendant to be placed on probation for 825 days with special conditions set forth in the order of probation issued on this date,” which included that Jones not consume alcohol and undergo a substance abuse evaluation and a mental health evaluation and follow the recommendations, attend an impaired drivers victim impact panel, perform eighty hours of community service, and incur a ninety day license suspension. Appellant’s Appendix at 25. Thus, the court ordered Jones to serve his term of probation concurrent with the suspended portion of his sentence.

Jones argues that the court erred because it sentenced him “to a combined period of imprisonment and probation greater than one year, contrary to Indiana law.” Appellant’s Brief at 18. Jones argues that he was convicted of a class A misdemeanor and the court sentenced him to forty days executed, 325 days suspended, and 325 days of probation for a total of 690 days. Jones argues that “[i]n Collins v. State, the Court of Appeals recognized that a ‘term of imprisonment’ under Indiana Code Section 35-50-3-1(b) includes both the executed and suspended portions of a sentence. 835 N.E.2d 1010, 1018 (Ind.Ct.App.2005), trans. denied.” Id. at 19.

Ind.Code § 35-50-3-2 provides in relevant part that “[a] person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year....” In addition, Ind.Code § 35-50-3 — 1(b) provides in part that:

[W]henever the court suspends in whole or in part a sentence for a Class A, Class B, or Class C misdemeanor, it may place the person on probation under IC 35-38-2 for a fixed period of not more than one (1) year, notwithstanding the maximum term of imprisonment for the misdemeanor set forth in sections 2 through 4 of this chapter. However, the combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year.

(Emphasis added).

Here, the language contained in the abstract of judgment plainly states that Jones was ordered to serve forty days executed followed by a probationary term of 325 days, which is a combined term encompassing one year. To the extent that Jones suggests that the court’s sentence of 325 days suspended should be added to the 325 days of probation for a total sentence of 690 days, we observe that in Smith v. State, 621 N.E.2d 325 (Ind.1993), a trial court sentenced a misde-meanant to a term of 110 days executed to be followed by one year of probation. At the time, the relevant version of Ind.Code § 35-50-3-l(b) was unclear as to whether such a sentence was illegal, and the Indiana Supreme Court held that it was, stating “that a combined term of probation and imprisonment exceeding one year is inconsistent with the maximum term for conviction of a misdemeanor.” 621 N.E.2d at 326. In so holding, the Court noted that “fundamental sentencing guidelines with respect to treatment of felonies likewise apply to misdemeanors” and that “[t]he trial court has the option, in sentencing a class A misdemeanant, to suspend the sentence in whole or in part and to place the defendant on probation, so long as the combination of the executed sentence and the probationary period do not exceed the maximum statutory sentence for that offense.” Id. (quotations omitted) (emphases added). We conclude that the court did not err in sentencing Jones.

For the foregoing reasons, we affirm Jones’s conviction and sentence for operating while intoxicated as a class A misdemeanor.

Affirmed.

BAILEY, J., concurs.

VAIDIK, J., concurs in result with separate opinion.

VAIDIK, Judge,

concurring in result.

I concur with the majority opinion in whole, including that the Certification asserting the accuracy of the breath-testing device is non-testimonial and therefore the trial court did not violate Jones’s confrontation rights by admitting it into evidence.

I wrote the opinion in Ramirez v. State, 928 N.E.2d 214 (Ind.Ct.App.2010), which was decided before Williams v. Illinois, — U.S. —, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). I agree with the majority that the Supreme Court’s later decision in Williams would not affirm the third rationale articulated in Ramirez. However, I disagree with the majority’s refraining of that third rationale in light of Williams. Instead of finding that the certificates of inspection are “prepared for purposes of criminal litigation, ... [but] are not prepared in anticipation of litigation in any particular case or with respect to implicating any specific defendant,” id. at 218, the majority would find that the “primary purpose [of the certificates of inspection] is to ensure that certain breath test equipment is in good operating condition in compliance with Ind.Code § 9-30-6-5.” Op. p. 428. I respectfully disagree with this. I still believe that these certificates of inspection are generally “prepared for purposes of criminal litigation.” Therefore, in light of the Supreme Court’s decision in Williams, I would simply eliminate the third rationale articulated in Ramirez.

Despite this difference, I still agree with the majority that the Certification is non-testimonial and therefore not subject to confrontation under Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Following the first two rationales set forth in Ramirez, the certificate of inspection was “not prepared at a judicial proceeding or during police interrogation,” and was not a “sworn affidavit ] and do[es] not contain formalized testimonial materials.” Ramirez, 928 N.E.2d at 217-18. Instead, the certificate was prepared at the direction of the Indiana University School of Medicine Department of Pharmacology and Toxicology and in accordance with its approved procedures. The certificate also was not a sworn affidavit and only contained the results of a machine-calibration test. Unlike forensic analysis of an unknown substance, like that at issue in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the machine-calibration test in question in this case required no human interpretation or analysis to either run the test or obtain results, making it void of any testimonial material on which a witness would need to be cross-examined.

I therefore agree with the majority that the Certification is non-testimonial and the trial court did not violate Jones’s confrontation rights by admitting it into evidence.

      , Ind.Code § 9-30-5-2(b) (2004).

      . The Ramirez court provided the following citation for this proposition: "See Johnson v. State, 879 N.E.2d 649, 660 (Ind.Ct.App.2008); Jarrell v. State, 852 N.E.2d 1022, 1026 (Ind.Ct.App.2006); Rembusch v. State, 836 N.E.2d 979, 982 (Ind.Ct.App.2005), reh’g denied, trans. denied; Napier v. State, 820 N.E.2d 144, 150 (Ind.Ct.App.2005), modified in part on reh’g, 827 N.E.2d 565 (Ind.Ct.App.2005). trans. denied, cert, denied, 546 U.S. 1215, 126 S.Ct. 1437, 164 L.Ed.2d 134(2006).”

      . In Williams, Justice Alito authored a plurality decision and announced the Court’s judgment and was joined by Chief Justice Roberts, Justice Breyer, and Justice Kennedy. 132 S.Ct. at 2227. Justice Thomas concurred in the judgment. Id.

      . We observe that, as a policy matter, were we to agree with Jones and find that certificates of inspection such as the Certification at issue here were testimonial evidence and require that the person who inspected the breath test equipment testify at every OWI trial before breath test results may be admitted, the legislature could respond by removing the statutory requirements currently in place which ensure the accuracy of such equipment, judging it as an undue burden on law enforcement.

      . Ind. Evidence Rule 803(8) provides in rele.vant part that "[t]he following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case.... ”

      . As recently observed by Judge Barnes, the 2001 amendment to Ind.Code § 35-50-3-l(b) effectively codified the Court’s holding in Smith when it added the "combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year” language. Peterink v. State, 971 N.E.2d 735, 738 (Ind.Ct.App.2012) (Barnes, J., concurring in part and dissenting in part), trans. pending.

      . We observe that this subject is currently on transfer to the Indiana Supreme Court. In Jennings v. State, the defendant was sentenced to "the maximum sentence of 180 days, with thirty days executed, 150 days suspended, and 360 days of probation” for a class B misdemeanor conviction. 962 N.E.2d 1260, 1261 (Ind.Ct.App.2012), trans. granted, 974 N.E.2d 1020 (2012). This court held that “the statutory phrase ‘term of imprisonment’ included both the executed and suspended portions of a misdemeanor sentence, and because Jennings was sentenced to a 180-day term of imprisonment (composed of thirty executed days and 150 suspended days), his term of probation could not exceed 185 days.” Id.


author: VAIDIK, Judge.

text:
    Michael GRAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1205-CR-352.
    Court of Appeals of Indiana.
    Feb. 11, 2013.

      Deborah Markisohn, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Michael Gray was convicted of Class D felony possession of cocaine and received a four-year sentence. On appeal, Gray contends that the trial court erred in refusing to allow him to play portions of an audio recording of a police officer’s deposition for impeachment purposes. We find that the trial court did err in refusing to allow Gray to play a part of the audio recording that was inconsistent with the officer’s testimony on direct examination, but this error was harmless. We affirm.

Facts and Procedural History

One afternoon in October 2011, Indianapolis Metropolitan Police Department Officer Christopher Morgan saw a gray Ford Crown Victoria speeding near the intersection of Terrance Avenue and Tal-bott Street. Officer Morgan initiated a traffic stop of the car, which had been traveling ten to twenty miles per-hour over the speed limit. When Officer Morgan approached the car, he observed a woman in the driver’s seat and a male, Gray, in the passenger seat. Officer Morgan asked the woman for her driver’s license. He also asked Gray for his identification. Officer Morgan noticed that Gray appeared very nervous and was making furtive gestures. Because Officer Morgan believed that Gray might have a weapon, he called for backup. Another officer arrived at the scene a few minutes later.

After discovering that the woman’s driver’s license was suspended and Gray did not have a valid driver’s license, Officer Morgan determined that the car should be impounded. Before the tow truck arrived, Officer Morgan conducted an inventory search according to departmental policy and discovered a small white baggie in the passenger doorframe. Officer Morgan believed that the substance inside the baggie was crack cocaine and asked Gray and the woman about the baggie. The woman said she did not know what was inside the baggie. Gray initially said he did not know what was going on. A short time later, Gray made a statement indicating that the cocaine did not belong to the driver; he was then arrested. Subsequent chemical testing revealed that the baggie contained approximately 2.5 grams of cocaine.

The State charged Gray with Class D felony possession of cocaine and a habitual substance-offender enhancement. Gray’s jury trial began in March 2012. At trial, Officer Morgan testified about the traffic stop and his discovery of the cocaine. On direct examination, Officer Morgan testified that when asked about the cocaine at the scene, Gray first said he did not know what was going on, but he later said “no [the cocaine] is not hers,” referring to the driver. Tr. p. 34. On cross-examination, defense counsel disputed Officer Morgan’s testimony, arguing that Gray had never said that the cocaine did not belong to the driver, but had instead made a very different statement — that he did not want to blame the driver for the cocaine. The following exchange occurred:

Q Now Officer Morgan, while at the scene Michael Gray did in fact tell you that [the cocaine] wasn’t his, correct?
A I don’t recall him using those exact words.
Q Again, did Michael Gray tell you that he didn’t want to blame the driver for the bag?
A He did make the statement [“]it wasn’t hers[,”] so I don’t recall him making another statement selling her bad [sic] but I do recall him saying it wasn’t the driver’s.
Q And that was — in those statements were [sic] because he was ignorant about the entire situation, is that correct?
A That’s what he stated.

Id. at 38-39. Defense counsel then asked Officer Morgan if he remembered giving a deposition one month earlier, and the officer said he did. Id. Counsel then began playing an audio recording of Officer Morgan’s deposition. The State immediately objected, and the trial court told defense counsel to stop playing the tape. The State argued that the tape was inadmissible, and the trial court agreed, saying: “[Y]ou can’t just start playing the recording because I don’t know what’s on there. The State may know but I don’t know what’s on there. I don’t know.” Id. at 40. Defense counsel offered to let the trial court listen to the tape, telling the court he only intended to play the portion of the deposition in which Officer Morgan relayed Gray’s statements about the cocaine. Id. at 40-41. But the trial court declined, saying:

I would have to listen to the whole thing. You can ask [Officer Morgan] regarding if he said something specifically on that date. You haven’t asked him that. You just said, “you recall giving a statement at my office,” and gave the date. You can say, “did you say such and such on such and such a date” ... but we don’t know how he’s going to respond. You haven’t — you[’ve] got to ask him did he say such and such.

Id. at 41. Defense counsel then resumed the line of questioning "with Officer Morgan:

Q So [at your deposition] ... I asked you about what you did after you found the cocaine.
A Correct.
Q And you stated that you talked with Michael Gray, correct?
A I believe so. I mean I don’t have a transcript of the actual deposition] so if you’re saying so, yes, I believe so.
Q And Michael Gray stated that [the cocaine] was not his?
A Again, the statement he made was that he didn’t understand what was going on.
Q And [at your deposition] when I asked you about that you stated that Michael Gray also stated, “and he didn’t want to blame her.”
A I don’t recall. If you say so then I’d have to take your word for it. He may have.

Id. at 42.

The jury found Gray guilty of Class D felony possession of cocaine. He pled guilty to being a habitual substance-abuse offender and received a four-year sentence. He now appeals.

Discussion and Decision

On appeal, Gray argues that the trial court erred in refusing to allow him to play a portion of the audio recording of Officer Morgan’s deposition for impeachment purposes. The issue before us is a narrow one. We do not consider whether the prior inconsistent statement could have been introduced substantively through extrinsic evidence; we consider only Gray’s ability to use a limited portion of the audio tape to call Officer Morgan’s attention to his inconsistent testimony.

We review a trial court’s decision regarding the admission of evidence for an abuse of discretion. Kimbrough v. State, 911 N.E.2d 621, 631 (Ind.Ct.App.2009) (citations omitted). An abuse of discretion occurs when the trial court’s ruling is clearly against the logic, facts, and circumstances presented. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied. Even when a trial court errs in excluding evidence, we will not find reversible error where that error is harmless; that is, where the error did not affect the substantial rights of a party. Ind. Trial Rule 61; Appleton v. State, 740 N.E.2d 122, 126 (Ind.2001).

Indiana Evidence Rule 613 allows the use of a prior inconsistent statement to impeach a witness, and when used in this manner, the statement is not hearsay. Jackson v. State, 925 N.E.2d 369, 375 (Ind.2010) (citing Martin v. State, 736 N.E.2d 1213, 1217 (Ind.2000)). Our Supreme Court has stated that “[o]rdinarily, prior inconsistent statements are used to impeach, not as substantive evidence of the matter reported.” Young v. State, 746 N.E.2d 920, 926 (Ind.2001).

On direct examination, Officer Morgan testified that Gray said the cocaine did not belong to the driver. See Tr. p. 34. But at his deposition, Officer Morgan testified that Gray said “he did not claim [the cocaine] was [the driver’s];” in other words, Gray said he did not want to blame the driver. The State argues that this is not an inconsistency and that the statements are “very similar.” Appellee’s Br. p. 7. We disagree. Definitively stating that something does not belong to someone is quite different from saying you are unwilling to say that something belongs to someone or that you are unwilling to blame that person. This is especially true in the situation here, where drugs were found and only two people were present. If Gray said the cocaine did not belong to the driver he would impliedly be saying that he knew who the drugs belonged to, and from this, the jury could infer that the drugs belonged to him.

Because there was an inconsistency in the officer’s testimony, Gray contends that he should have been allowed to impeach Officer Morgan with his deposition testimony. We agree. Gray should have been permitted to play the specific portion of the tape that contained the inconsistent deposition testimony and give the officer an opportunity to explain the inconsistency. Ind. Evidence Rule 618(a); see Appleton, 740 N.E.2d at 125-26 (“Once [the witness] denied [the defendant’s] involvement in the events, the State should have made [the witness] aware of specific portions of his testimony that were inconsistent ... and given him an opportunity to explain those inconsistencies.).” Allowing a defendant to reference specific portions of a prior inconsistent statement — rather than reading or playing a tape of the entire statement — avoids the danger of allowing the statement to come before the jury improperly as substantive evidence. Appleton, 740 N.E.2d at 126 (finding error where the State read, line-by-line, a witness’s pretrial statement, saying that “the only purpose of such recitation [ ] would be to get the details of the ... former statement before the jury as substantive evidence.”). Here, we find that the trial court erred by excluding the tape of Officer Morgan’s deposition.

Although we conclude that Gray was entitled to use a specific portion of the tape, he went about doing so in the wrong way. Gray played the tape without any notice to the court. The court was well within its discretion in refusing to allow Gray to play the tape when the court had no knowledge of its content. However, Gray explained that he intended to use only a specific portion of the tape and made it available to the court. The court should have examined the portion of the tape Gray wished to use and determined whether it was inconsistent with Officer Morgan’s testimony. Given that the portions Gray wished to play were in fact inconsistent with the officer’s testimony, it was error to prevent Gray from playing the relevant portions of the tape.

We find the error harmless, however. Officer Morgan ultimately admitted that his testimony may have been inconsistent, making Gray’s impeachment attempt complete — though jurors likely found this admission less persuasive than an audio recording of the officer’s inconsistent statement. And the evidence adduced at trial strongly points to Gray’s guilt: when police officers stopped the car Gray was riding in, Gray made furtive movements and appeared nervous. Gray was sitting in the passenger seat, and the cocaine was found in the passenger door-frame. Accordingly, we find no reversible error here.

Affirmed.

BAILEY, J., and BROWN, J., concur.

      . A prior inconsistent statement may be admissible as substantive evidence, but only if the declarant testifies at trial and is subject to cross-examination, and the statement was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. Modesitt v. State, 578 N.E.2d 649 (Ind.1991); Ind. Evidence Rule 801(d). However, Gray did not attempt to use the tape as substantive evidence in this case.

      . In its appellate brief, the State quotes Officer Morgan’s deposition testimony: "I asked [Gray] if he used cocaine or if he knew about the drugs in the car. And of course he didn’t know about it but he didn’t want to claim that it was hers so we could (inaudible) so...." Appellee's Br. p. 7 (ellipses in original). The State also provided a copy of the officer's deposition on a floppy disk. Because this Court's technology does not allow us to access the contents of floppy disks, we ask that appellate parties refrain from submitting materials on floppy disks in the future. Because we cannot access the floppy disk's contents, we rely on the State’s recitation of Officer Morgan’s deposition testimony.