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