Mark Rhodes v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 18, 2018
• Docket: 49A05-1710-CR-2483
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 18 2018, 10:30 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew M. Kubacki Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Katherine Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark Rhodes, May 18, 2018 Appellant-Defendant, Court of Appeals Case No. 49A05-1710-CR-2483 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Peggy Hart, Magistrate Appellee-Plaintiff. Trial Court Cause No. 49G10-1705-CM-17166

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2483 | May 18, 2018 Page 1 of 5 Case Summary and Issue [1] Following a jury trial, Mark Rhodes was convicted of operating a vehicle with

an alcohol concentration equivalent to at least 0.08 gram of alcohol, a Class C

misdemeanor. Rhodes now appeals, raising a single issue for our review, which

we restate as whether the trial court abused its discretion in admitting certain

evidence. Concluding Rhodes failed to preserve the issue for appeal with a

contemporaneous objection to the admission of evidence, we affirm his

conviction.

Facts and Procedural History [2] On May 9, 2017, at approximately 7:00 PM, Indiana State Police Trooper

Thomas Bennett conducted a traffic stop on a vehicle driven by Rhodes.

Trooper Bennett observed Rhodes traveling eastbound at a rate of speed that

appeared to be greater than the posted speed limit. Trooper Bennett confirmed

with his radar gun that Rhodes was speeding. At the time he spotted Rhodes,

Trooper Bennett was traveling westbound.

[3] During the course of the traffic stop, Trooper Bennett detected the odor of

alcohol and observed that Rhodes’ eyes were red and glassy. Trooper Bennett

asked Rhodes if he had anything to drink that day, to which Rhodes replied he

had one and one-half beers. Trooper Bennett then ordered Rhodes out of the

vehicle and conducted two field sobriety tests. Rhodes failed both field sobriety

tests.

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2483 | May 18, 2018 Page 2 of 5 [4] Trooper Bennett advised Rhodes of Indiana’s implied consent law and

transported Rhodes to the Marion County Jail to administer a chemical breath

test. Rhodes’ chemical breath test registered 0.097 gram of alcohol.

[5] The State charged Rhodes with operating a vehicle while intoxicated

endangering a person, a Class A misdemeanor, and operating a vehicle with an

alcohol concentration equivalent to at least 0.08 gram of alcohol, a Class C

misdemeanor. During Trooper Bennett’s testimony at trial, Rhodes moved to

suppress all evidence and testimony obtained as a result of the stop and argued

the stop was illegal based on the Fourth Amendment to the United States

Constitution and Article 1, Section 11 of the Indiana Constitution. The trial

court denied Rhodes’ motion to suppress. Rhodes did not lodge a continuing

objection or further object to Trooper Bennett’s testimony concerning the

results of the chemical breath test or the State’s exhibit documenting the

chemical breath test results.

[6] The jury found Rhodes guilty of operating a vehicle with an alcohol

concentration equivalent to at least 0.08 gram of alcohol. Rhodes now appeals.

Discussion and Decision [7] Rhodes contends Trooper Bennett’s traffic stop constituted an illegal stop under

Article 1, Section 11 of the Indiana Constitution. Therefore, he alleges all

evidence stemming from that stop must be suppressed. The State responds that

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2483 | May 18, 2018 Page 3 of 5 Rhodes waived any objection by failing to object to the evidence’s admission at

trial.

[8] Although Rhodes moved to suppress the evidence stemming from the traffic

stop at the outset of Trooper Bennett’s testimony at trial, the trial court denied

this motion and Rhodes did not make any further objections to Trooper

Bennett’s testimony concerning the results of the chemical breath test or the

State’s exhibit documenting the chemical breath test results, which was greater

than 0.08 gram of alcohol. See Transcript at 101-02. Our supreme court has

determined when a motion to suppress has been overruled and the evidence is

later offered at trial, an error remains unpreserved for appeal unless there is an

objection at the time the evidence is offered for admission. Brown v. State, 929

N.E.2d 204, 206-07 (Ind. 2010); Wagner v. State, 474 N.E.2d 476, 484 (Ind.

1985).

[9] Therefore, we conclude Rhodes failed to preserve his constitutional challenge to

the admissibility of evidence.1

1 Rhodes does not contend the trial court committed fundamental error. See Brown, 929 N.E.2d at 207 (noting a claim forfeited for failure to object can be reviewed on appeal for fundamental error).

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2483 | May 18, 2018 Page 4 of 5 Conclusion [10] Rhodes failed to lodge a contemporaneous objection at the time evidence was

admitted at trial and has thus failed to preserve the error for appeal.

Accordingly, we affirm his conviction.

[11] Affirmed.

Najam, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2483 | May 18, 2018 Page 5 of 5