Mathias, J.
Dwayne Keith Washington appeals his conviction for Class A misdemeanor possession of a schedule II controlled substance following a jury trial. Washington presents a single issue for our review, namely, whether the trial court abused its discretion when it admitted evidence identifying pills he had possessed as hydrocodone.
We reverse.
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Washington contends that the trial court abused its discretion when it admitted evidence that Washington possessed hydrocodone based on information obtained from Drugs.com…
Washington asserts that Officer Hall’s testimony identifying the pills he possessed as hydrocodone was hearsay and did not fall under any hearsay exception…
At trial, the State argued that, while Officer Hall’s identification of the pills using Drugs.com was hearsay, it was admissible under Indiana Evidence Rule 803(17), the “market reports exception.” See Reemer v. State, 835 N.E.2d 1005, 1008 (Ind. 2005). That exception permits admission into evidence of “market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.” Evid. R. 803(17). The trial court concluded that Officer Hall’s testimony was admissible under the market reports exception.
On appeal, Washington presents an issue of first impression for our courts, namely, whether information obtained from Drugs.com to identify hydrocodone pills is admissible under the market reports exception to hearsay. While no Indiana court has yet addressed this specific issue, in Reemer, our Supreme Court considered the market reports hearsay exception in the context of the admissibility of “the labels of commercially marketed drugs[.]” 835 N.E.2d at 1008. The Court in Reemer focused solely on the reliability of the labels and did not consider whether their use, as opposed to forensic testing of the drugs, was necessary…Thus, the Court held that “labels of commercially marketed drugs are properly admitted into evidence under the exception provided by Evidence Rule 803(17) to prove the composition of the drug.” Id. at 1009.
The State acknowledges that the use of a website to identify loose pills is not analogous to the reliance on the regulated label of a commercially marketed drug. Still, the State maintains that “the fact that government regulations require accuracy in a statement is not a litmus test for admissibility under Rule 803(17).”… Thus, the State contends that the trial court did not abuse its discretion when it admitted the identification of the hydrocodone using Drugs.com. We are not persuaded.
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We are not persuaded that the State’s identification of the hydrocodone solely based on Drugs.com was necessary or that the website is reliable. The lack of a field test for pills is obviously not a bar to having them tested by the State Laboratory in preparation of trial. And the State does not explain why the difficulty of obtaining lab tests makes the use of Drugs.com necessary rather than merely convenient. Cline testified that she did not test the pills in this case because she was not asked to do so. As for reliability, just because one police department uses Drugs.com does not prove that the website is “generally relied upon either by the public or by people in a particular occupation[.]” See Reemer, 835 N.E.2d at 1008. Notably, the State did not introduce any evidence “that Drugs.com is nationally recognized” or commonly used by law enforcement. See Hard, 342 P.3d at 578.
The trial court found, and the parties do not dispute, that the evidence obtained from Drugs.com was hearsay. We agree with Washington that the State’s reliance on Drugs.com was not necessary and that the State has not shown that Drugs.com is a reliable source for drug identification. Indeed, the Colorado Court of Appeals noted that Drugs.com includes a “disclaimer of any guarantee as to the accuracy of the information on the site.” Hard, 342 P.3d at 579. And Cline acknowledged that it is “possible for a pill to look like [h]ydrocodone and not be [h]ydrocodone[.]” Tr. p. 178.
We hold that the market reports exception to hearsay under Evidence Rule 803(17) does not apply to allow the admission of evidence from Drugs.com that was used to convict Washington. Accordingly, the trial court abused its discretion when it admitted the evidence purporting to show that the pills in Washington’s possession were hydrocodone based on the description on Drugs.com. Because the State presented no other evidence to show that the pills possessed by Washington were a controlled substance, we reverse Washington’s conviction for Class A misdemeanor possession of a schedule II controlled substance.
Reversed.
Tavitas, J., and Weissmann, J., concur