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
