Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE:
ATTORNEYS FOR APPELLEE:
ANTHONY M. MORRIS
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
Dec 27 2011, 9:30 am
COURT OF APPEALS OF INDIANA
STATE OF INDIANA,
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Wayne A. Sturtevant, Judge
Cause No. 29D05-0909-CM-5472
December 27, 2011
MEMORANDUM DECISION - NOT FOR PUBLICATION
of the supreme court,
court of appeals and
STATEMENT OF THE CASE
Anthony Morris appeals his conviction for operating a vehicle with an alcohol
concentration equivalent (“ACE”) of at least .08 gram of alcohol, a Class C
misdemeanor, following a jury trial.1 He presents a single dispositive issue for our
review, namely, whether the trial court abused its discretion when it excluded from
evidence three exhibits proffered by Morris at trial.
FACTS AND PROCEDURAL HISTORY
On September 28, 2009, the State charged Morris with carrying a handgun without
a license, operating a vehicle while intoxicated, and operating a vehicle with an ACE of
at least .08 gram of alcohol. The State dismissed the handgun charge prior to trial. A
jury found Morris, who represented himself at trial, guilty of the two remaining charges.
The trial court entered judgment of conviction and sentence only on the offense of
operating a vehicle with an ACE of at least .08 gram of alcohol. This appeal ensued.
DISCUSSION AND DECISION
Morris contends that the trial court abused its discretion when it excluded from
evidence three exhibits he proffered at trial, namely, Exhibits A, I, and N.2 The State
objected to Exhibit A on hearsay grounds and lack of foundation, Exhibit I for lack of
Morris states that he was also convicted of operating a vehicle while intoxicated, as a Class C
felony, but the CCS states that the trial court entered judgment of conviction and sentence only on the
operating a vehicle with an ACE of at least .08 gram of alcohol. Appellant’s App. at 7.
Those exhibits consisted of, respectively: an excerpt of an online article entitled “Accuracy and
precision of breath alcohol measurements for subjects in the absorptive state”; a BAC DataMaster
evidence ticket purporting to show a second breath test indicating a BAC of .07; and an excerpt from
www.nhtsa.gov regarding administration of the horizontal gaze nystamus test.
foundation, and Exhibit N on hearsay grounds, and the trial court sustained each of those
objections. Hearsay is inadmissible unless an exception applies. See Ind. Evidence Rule
802. And the requirement of authentication or identification of an exhibit as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims. Ind. Evidence Rule 901(a). When
evidence establishes a reasonable probability that an item is what it is claimed to be, the
item is admissible. Thomas v. State, 734 N.E.2d 572, 573 (Ind. 2000). When a trial
court has made a ruling concerning the sufficiency of the foundation laid to justify the
admission of evidence, we review that decision for an abuse of discretion. Id. We
likewise review a trial court’s exclusion of evidence on hearsay grounds for an abuse of
discretion. See Ballard v. State, 877 N.E.2d 860, 861 (Ind. Ct. App. 2007).
Here, Morris did not make any argument or present any evidence to the trial court
in an effort to overcome the hearsay objections or to establish a foundation for the
excluded exhibits, yet his entire appeal is premised on making such arguments for the
first time in his brief on appeal. It is well-settled that an appellant is limited to the
specific grounds argued to the trial court and cannot assert new bases for admissibility for
the first time on appeal. See Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999). Morris,
who represented himself, asked the trial court what was required to establish a foundation
for the exhibits, and the court stated, “Well, Mr. Morris, I can’t give you that information.
That’s information that you undertook to . . . be prepared to abide by when you decided
to represent yourself.” Transcript at 34. We agree, and Morris cannot now make any of
the arguments in support of the admissibility of the excluded exhibits for the first time on
appeal. The trial court likewise explained the hearsay rule to Morris, but Morris did not
argue at trial either that the exhibits were not hearsay or that they were admissible as an
exception to hearsay. Accordingly, he has waived appellate review of these issues. See
Taylor, 710 N.E.2d at 923.
ROBB, C.J., and VAIDIK, J., concur.