               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40244

STATE OF IDAHO,                                  )
                                                 )     2013 Opinion No. 42
       Plaintiff-Respondent,                     )
                                                 )     Filed: July 11, 2013
v.                                               )
                                                 )     Stephen W. Kenyon, Clerk
TRACY LORENE DAVIS,                              )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Kathryn A. Sticklen, District Judge; Hon. John Hawley, Jr.,
       Magistrate.

       District court’s appellate decision affirming judgment of conviction for
       misdemeanor driving under the influence, affirmed.

       Alan E. Trimming, Ada County Public Defender; Thomas J. Moore, Deputy
       Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Tracy Lorene Davis appeals from the district court’s appellate decision affirming her
conviction in magistrate court for driving under the influence of alcohol. We affirm.
                                                I.
                                       BACKGROUND
       A Meridian police officer stopped Davis’s vehicle after observing a number of traffic
infractions. The officer noticed that Davis had watery, bloodshot eyes and detected an odor of
alcohol coming from the vehicle. Davis admitted consuming two glasses of wine at a local bar
but explained that she also had drunk a lot of water. The officer conducted field sobriety tests,
which Davis failed. Davis was placed under arrest and transported to the police department for
breath alcohol testing. Davis’s test returned BAC levels of .087 and .090, both in excess of the



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statutory limit of .08. She was then charged with misdemeanor driving under the influence of
alcohol.
       On the morning of the first day of trial, Davis expressed her intent to introduce an audio
recording of the traffic stop. The State objected on the ground that Davis’s statements contained
in the recording were inadmissible hearsay when offered by Davis herself. The prosecutor
suggested that Davis was trying to introduce into evidence the substance of those statements--
giving as examples her statements regarding how much wine and water she had consumed--
rather than testifying at trial and being subject to cross-examination.        Counsel for Davis
responded that while the recording “definitely [included] statements by my client that she made
that night” the recording remained “highly relevant” and that the State would not be prejudiced
by its admission. With no hearsay exception having been identified by Davis, the magistrate
ruled that Davis’s statements were inadmissible hearsay when offered by her and that the
recording would either be excluded or could be redacted to excise those statements. After jury
voir dire was completed, counsel for Davis briefly returned to this issue, stating that he “wanted
to make a formal record” that the recording was “not offered for the truth of the matter asserted.”
He did not, however, describe any nonhearsay purpose of the use of this evidence.              The
magistrate court adhered to its previous ruling. Davis ultimately was found guilty by the jury.
       Davis appealed to the district court, asserting that the magistrate court erred in excluding
as hearsay portions of the officer’s audio recording of the stop and his conversation with Davis.
Davis argued to the district court that the hearsay rule did not apply to the recording because she
did not seek its admission for the truth of her recorded statements but, rather, for nonhearsay
purposes. The district court held that the issue of Davis’s nonhearsay rationale for use of the
recording was not preserved for appeal and declined to address it. Davis also contended that the
magistrate erred in precluding cross-examination of the officer about a remark he made to Davis
concerning her breath test results. The district court concluded that this issue also was not
properly preserved for appeal because Davis abandoned the issue at trial. Davis now further
appeals to this Court.




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                                                II.
                                           ANALYSIS
A.     Audio Recording
       Davis first asserts that the district court erred in concluding that her assignment of error
in the exclusion of the audio recording was not preserved for appeal. In her argument to the
district court, Davis contended that the entire recording was admissible for the nonhearsay
purposes of establishing a timeline from the stop to the breath tests, contradicting the officer’s
testimony that she had slurred speech, and impeaching the officer’s trial testimony that she had
admitted taking hydrocodone. The State argued in response that Davis had not preserved those
issues for appeal because none of these particularized nonhearsay purposes were advanced
before the magistrate.
       The district court agreed with the State, holding that Davis was impermissibly attempting
to raise issues for the first time on appeal because she did not make those arguments before the
magistrate. The district court said that “[m]erely citing the language of a rule does not provide
the trial court with any specific factual information concerning what the party’s basis is for
seeking to have the evidence admitted,” that “[c]ounsel for Davis just argued before the
magistrate that the audio would be used for nonhearsay purposes without specifying what those
nonhearsay purposes would be,” and that “[m]ore is required to properly preserve an issue for
appeal.” Accordingly, the district court declined to address the merits of Davis’s arguments.
       In argument to this Court, Davis contends that the district court was overly exacting in its
determination of the level of particularity that is necessary to preserve an issue for appeal. We
conclude, however, that the district court did not err. Idaho Rule of Evidence 103(a) provides,
“Error may not be predicated upon a ruling which . . . excludes evidence unless a substantial
right of the party is affected and . . . the substance of the evidence was made known to the court
by offer or was apparent from the context within which questions were asked.” Here, Davis’s
vague statement to the magistrate court did not inform the court of any nonhearsay substance or
relevance of the recording. In State v. Gomez, 126 Idaho 700, 705, 889 P.2d 729, 734 (Ct. App.
1994), this Court held that “where it appears that a question directed to the witness may call for
hearsay, the appropriate response is for the trial court to sustain [a hearsay] objection unless the
proponent of the testimony shows, by an offer of proof, that the out-of-court statement upon
which the testimony is grounded is not hearsay.” Typically this is done by describing the


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intended testimony and identifying an applicable hearsay exception or nonhearsay purpose for
the testimony. Where it is contended that the statement is not hearsay because it is not submitted
for the truth of the matter asserted, the proponent of the evidence must identify a nonhearsay
purpose that has relevance to prove or disprove a fact that is of consequence to the determination
of the action. See I.R.E. 401; State v. Boehner, 114 Idaho 311, 314-15, 756 P.2d 1075, 1078-79
(Ct. App. 1988). If the proponent identifies no nonhearsay purpose, the court has no basis on
which to determine whether a relevant nonhearsay purpose exists for use of the evidence. Here,
the magistrate court responded correctly to the State’s objection.        Because it appeared the
recording contained hearsay, the magistrate gave Davis the opportunity to identify an applicable
hearsay exception or nonhearsay purpose for its admission and, hearing none, sustained the
State’s objection, while leaving open the option to redact hearsay from the recording.
       Davis points out that this Court has sometimes been forgiving in not requiring specificity
in determining that an issue has been preserved for appeal. She cites as an example State v.
Gutierrez, 143 Idaho 289, 292, 141 P.3d 1158, 1161 (Ct. App. 2006), where this Court held that
a defendant’s trial objection to a State’s witness’s testimony for “lack of foundation” was broad
enough to preserve and require consideration of the defendant’s appellate challenge that the
witness lacked personal knowledge under Idaho Rule of Evidence 602. However, our Supreme
Court has recently been more strict in requiring specificity in trial objections in order to preserve
issues for appeal, a directive that we are obligated to follow. In Hansen v. Roberts, 154 Idaho
469, 473-75, 299 P.3d 781, 785-87 (2013), at the outset of the opposing expert’s trial testimony,
Hansen made an objection to “all of” the expert’s testimony as invading the province of the jury
but did not explain how the testimony would do so. The objection was overruled. On appeal,
Hansen identified two specific instances where he contended the expert’s testimony crossed the
line. Our Supreme Court declined to address the claims of error, concluding that regardless of
their possible merit “Hansen’s broad, general [trial] objection that [the expert’s] testimony
invaded the province of the jury is not a proper objection to preserve either of his challenges to
[the expert’s] testimony.” In Hansen, the Court relied upon a much earlier decision, Hobbs v.
Union Pacific Railroad Co., 62 Idaho 58, 74, 108 P.2d 841, 849 (1940), where the Court held
that an objection “that no proper foundation has been laid” was not sufficiently specific because
it did not state in what respect the foundation for opinion testimony was insufficient. See
Hansen, 154 Idaho at 473, 299 P.3d at 785.


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        Here the same holds true. Davis’s broad, general trial assertion that she was not seeking
admission of the recording for the truth of the matters asserted failed, for lack of particularity, to
preserve the specific nonhearsay justifications for admission of the recording that she has
advanced for the first time on appeal. Davis never gave the magistrate an opportunity to
consider whether all or portions of the recording would be admissible for those purposes.
Therefore, the district court did not err in holding that Davis’s claim of error was not preserved
in the trial court. 1
B.      Cross-examination of the Officer
        On the intermediate appeal to the district court, Davis also contended that the magistrate
incorrectly prevented her from cross-examining the officer as to his opinion that her alcohol
concentration was rising during breath testing, some fifty minutes after the stop. 2 The district
court held that Davis had waived this issue in the trial court by abandoning any effort to cross-
examine the officer on this point. On appeal to this Court, Davis argues that the district court
erred in this determination.
        The issue arose on the morning of the first day of trial. The prosecutor informed the
court that the audio recording contained a remark by the officer to Davis that “you’re probably
on your way up,” referring to the possibility that her breath alcohol concentration level was
rising because the two successive blows for her breath test returned results of .087 and .090. The
prosecutor contended that the defense should not be allowed to elicit the officer’s opinion on that
matter unless it laid a foundation showing that the officer had the requisite specialized
knowledge to opine on that subject as required by Idaho Rule of Evidence 702. The magistrate

1
        We also observe that the magistrate’s ruling did not preclude Davis from using the
recording for any of her newly-claimed nonhearsay purposes, for the magistrate ruled that the
recording could be used with redaction of Davis’s own statements that constitute hearsay. The
audiotape could have established the time lapse from the traffic stop to the breath test without the
audio of any of Davis’s statements. The tape also could have been used to illustrate whether her
speech was slurred because only statements offered for the truth of the matter asserted are
hearsay, I.R.E. 801, so many of Davis’s statements on the tape likely would have been
nonhearsay and need not have been redacted. Lastly, she could have called a witness who had
listened to the tape to testify whether it included any statement by her admitting to taking
hydrocodone. Thus, the tape could have been utilized by Davis for her newly-asserted purposes
in conformity with the magistrate court’s ruling.
2
        Presumably, Davis wished to establish that her alcohol concentration was therefore below
.08 at the time she was driving.

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agreed with the prosecutor, but specifically told defense counsel that “on cross-examination if
you’re able to establish a foundation, I think I’ll allow you to ask that question,” and further
stated that foundation might be established if it were shown that the officer had “any special
knowledge as to how alcohol is absorbed” into the body once consumed.
       Thereafter, the following exchange occurred during cross-examination of the officer:
       [Defense counsel]: Okay. So if a person coughs with alcohol . . . in their lungs
                          wouldn’t that bring alcohol up to a person’s mouth as well?
       [Prosecutor]:      Objection, Your Honor. Facts not in evidence. . . .
       [Magistrate]:      All right. Well, I’ll sustain the objection to the question as
                          asked.
       [Defense Counsel]: Is it your understanding that alcohol can be present in a
                          person’s lungs
       [Officer]:         In their blood. I’m not sure how it transfers into the lungs
                          or how it transfers through the body.

       On appeal to the district court, Davis contended that the magistrate impermissibly
precluded questioning of the officer about his opinion that Davis’s alcohol concentration was
going up because the magistrate sustained the State’s objection to the first question quoted
above. The district court concluded that the magistrate court, by its ruling, did not preclude
defense questioning of the officer about rising alcohol concentration. Instead, the district court
said, Davis abandoned the issue at trial because she “never attempted to set forth the foundation
the magistrate referenced” and never sought to cross-examine the officer concerning his
statement. On appeal to this Court, Davis asserts that the district court was incorrect and that the
magistrate impermissibly limited her cross-examination of the officer.
       The district court correctly affirmed the magistrate.        The magistrate court simply
sustained the prosecutor’s objection to the question “as asked.” Nothing in that evidentiary
ruling prohibited Davis from inquiring whether the officer had specialized knowledge about how
quickly alcohol is absorbed into the bloodstream or exhibited in breath after consumption, nor
did the ruling preclude inquiry into the officer’s qualifications to opine whether Davis’s alcohol
concentration was rising at the time of her breath test.       Indeed, after the magistrate court
sustained the State’s objection, Davis did ask a few questions regarding the officer’s training in
an apparent attempt to lay a foundation showing specialized knowledge that would support
admission of his statement to Davis that, “you’re probably on your way up”; but after the
officer’s response to those initial queries indicated that he lacked the requisite expertise, Davis



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forewent further inquiry into that area. Davis’s inability to lay a foundation for introduction of
the officer’s statement on the videotape was not caused by any adverse ruling of the magistrate
court but by Davis’s inability to obtain answers from the officer that would establish that he
possessed the requisite specialized knowledge. The district court correctly held that there was no
error by the magistrate court.
                                               III.
                                        CONCLUSION
       The district court’s appellate decision affirming Davis’s judgment of conviction is
affirmed.
       Chief Judge GUTIERREZ and Judge GRATTON CONCUR.




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