FILED MEMORANDUM DECISION Jul 29 2016, 9:52 am
CLERK Pursuant to Ind. Appellate Rule 65(D), Indiana Supreme Court Court of Appeals this Memorandum Decision shall not be and Tax Court
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Leeman Gregory F. Zoeller Logansport, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Harris, July 29, 2016 Appellant-Defendant, Court of Appeals Case No. 09A02-1512-CR-2374 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Richard A. Appellee-Plaintiff. Maughmer, Judge Trial Court Cause No. 09D02-1503-F5-24
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 09A02-1512-CR-2374 | July 29, 2016 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, David L. Harris (Harris), appeals his conviction for
operating a motor vehicle after his driving privileges were forfeited for life, a
Level 5 felony, Ind. Code § 9-30-10-17(a)(1) (2015). 1
[2] We affirm.
ISSUE
[3] Harris raises two issues on appeal, which we consolidate and restate as the
following issue: Whether the State presented sufficient evidence to support
Harris’ conviction for operating a motor vehicle after his driving privileges were
forfeited for life.
FACTS AND PROCEDURAL HISTORY 2
[4] At approximately midnight on March 10, 2015, Sergeant Britt Edwards
(Sergeant Edwards) of the Logansport Police Department was dispatched to
1517 Smead Street in Logansport, Cass County, Indiana, in response to a report
that a male was throwing and destroying items inside the residence. Before
Sergeant Edwards arrived, dispatch advised that the suspect had driven away in
a tan Pontiac Grand Prix. Sergeant Edwards located a vehicle matching the
description parked alongside the road, and he observed a male exit from the
1 This version of the statute became effective January 1, 2015. See Ind. P.L. 217-2014, § 143. 2 We remind the parties that, pursuant to Indiana Administrative Rule 9(G)(2)(f), “[c]omplete Social Security Numbers of living persons” must be excluded from the public record.
Court of Appeals of Indiana | Memorandum Decision 09A02-1512-CR-2374 | July 29, 2016 Page 2 of 7 driver’s door. Sergeant Edwards approached the driver, who identified himself
as Harris. When Sergeant Edwards inquired about the reported disturbance on
Smead Street, Harris explained that he had been in an argument with his wife.
Upon Sergeant Edwards’ request for identification, Harris provided an Indiana
identification card. Sergeant Edwards conducted a check on Harris’
information and discovered that Harris was a habitual traffic violator (HTV)
with a lifetime driver’s license suspension. Accordingly, Sergeant Edwards
placed Harris under arrest.
[5] On March 11, 2015, the State filed an Information, charging Harris with
operating a motor vehicle after forfeiture of license for life, a Level 5 felony,
I.C. § 9-30-10-17(a)(1) (2015) (Section 17). On November 12, 2015, the trial
court conducted a bench trial. At the close of the evidence, the trial court found
Harris guilty as charged. On December 21, 2015, the trial court held a
sentencing hearing and ordered Harris to serve four years, with three years
executed through community corrections, if Harris qualified, and one year
suspended to probation.
[6] Harris now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[7] Harris claims that the State presented insufficient evidence to support his
conviction for operating a vehicle with a lifetime forfeiture of his driver’s
license. In a challenge to the sufficiency of the evidence, our court considers
the evidence most favorable to the judgment, along with any reasonable
Court of Appeals of Indiana | Memorandum Decision 09A02-1512-CR-2374 | July 29, 2016 Page 3 of 7 inferences that may be drawn therefrom. Moore v. State, 702 N.E.2d 762, 763
(Ind. Ct. App. 1998). We must determine, in light of the evidence, “whether a
reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.” Id. In doing so, we neither reweigh evidence nor assess
witness credibility. Id. So long as “there is substantial evidence of probative
value supporting each element of the crime,” we will uphold the conviction. Id.
[8] In order to convict Harris of the charged offense, the State was required to
prove that he “operate[d] a motor vehicle after the person’s driving privileges
are forfeited for life under [Indiana Code section 9-30-10-16 (Section 16)].” I.C.
§ 9-30-10-17(a)(1) (2015). During the trial, the State presented evidence that in
2011, Harris was convicted of operating a vehicle as an HTV in violation of
Indiana Code section 9-30-10-16(a)(2), which was a Class D felony at the time.
For his Section 16 conviction, Harris received a 180-day suspended sentence,
and the sentencing order indicated that he received a “lifetime suspension” of
his driver’s license. (State’s Exh. 1, p.3); see I.C. § 9-30-10-16(a)(2),(c) (2014)
(“A person who operates a motor vehicle . . . in violation of restrictions
imposed under [the HTV statute] and who knows of the existence of the
restrictions . . . commits a Level 6 felony” and “forfeits the privilege of
operating a motor vehicle for life.”).
[9] On appeal, Harris does not challenge the State’s evidence that he was operating
the vehicle and that he had previously been convicted of an offense under
Section 16 for which he received a lifetime forfeiture of his driver’s license.
Rather, he directs our attention to Indiana Code section 9-30-10-19(b), which
Court of Appeals of Indiana | Memorandum Decision 09A02-1512-CR-2374 | July 29, 2016 Page 4 of 7 provides that “[a] person whose driving privileges are suspended or forfeited for
a determined period or for life under this chapter is eligible for specialized
driving privileges under [Indiana Code chapter] 9-30-16.” Indiana Code
chapter 9-30-16 sets forth the eligibility and petition criteria for obtaining
specialized driving privileges following a license suspension. According to
Harris, “[b]ecause individuals with prior lifetime suspensions in Indiana can
now receive ‘specialized driving privileges[,’] the State was required to submit
evidence expressly proving that Harris[] remained ineligible to drive on March
10, 2015.” (Appellant’s Br. p. 8). In other words, Harris claims that it was the
State’s burden to prove that he never applied for and received specialized
driving privileges following his lifetime forfeiture.
[10] We need not address whether the State was required to prove that Harris did
not have specialized driving privileges on March 10, 2015. Indiana Code
section 9-30-10-19(b) did not go into effect until July 1, 2015, nearly four
months after Harris committed the present offense. See Ind. P.L. 188-2015, §
118. Thus, at the time Harris operated a vehicle while his driving privileges
were forfeited for life, there was no statute expressly providing that he was
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FILED MEMORANDUM DECISION Jul 29 2016, 9:52 am
CLERK Pursuant to Ind. Appellate Rule 65(D), Indiana Supreme Court Court of Appeals this Memorandum Decision shall not be and Tax Court
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Leeman Gregory F. Zoeller Logansport, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Harris, July 29, 2016 Appellant-Defendant, Court of Appeals Case No. 09A02-1512-CR-2374 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Richard A. Appellee-Plaintiff. Maughmer, Judge Trial Court Cause No. 09D02-1503-F5-24
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 09A02-1512-CR-2374 | July 29, 2016 Page 1 of 7 STATEMENT OF THE CASE
[1] Appellant-Defendant, David L. Harris (Harris), appeals his conviction for
operating a motor vehicle after his driving privileges were forfeited for life, a
Level 5 felony, Ind. Code § 9-30-10-17(a)(1) (2015). 1
[2] We affirm.
ISSUE
[3] Harris raises two issues on appeal, which we consolidate and restate as the
following issue: Whether the State presented sufficient evidence to support
Harris’ conviction for operating a motor vehicle after his driving privileges were
forfeited for life.
FACTS AND PROCEDURAL HISTORY 2
[4] At approximately midnight on March 10, 2015, Sergeant Britt Edwards
(Sergeant Edwards) of the Logansport Police Department was dispatched to
1517 Smead Street in Logansport, Cass County, Indiana, in response to a report
that a male was throwing and destroying items inside the residence. Before
Sergeant Edwards arrived, dispatch advised that the suspect had driven away in
a tan Pontiac Grand Prix. Sergeant Edwards located a vehicle matching the
description parked alongside the road, and he observed a male exit from the
1 This version of the statute became effective January 1, 2015. See Ind. P.L. 217-2014, § 143. 2 We remind the parties that, pursuant to Indiana Administrative Rule 9(G)(2)(f), “[c]omplete Social Security Numbers of living persons” must be excluded from the public record.
Court of Appeals of Indiana | Memorandum Decision 09A02-1512-CR-2374 | July 29, 2016 Page 2 of 7 driver’s door. Sergeant Edwards approached the driver, who identified himself
as Harris. When Sergeant Edwards inquired about the reported disturbance on
Smead Street, Harris explained that he had been in an argument with his wife.
Upon Sergeant Edwards’ request for identification, Harris provided an Indiana
identification card. Sergeant Edwards conducted a check on Harris’
information and discovered that Harris was a habitual traffic violator (HTV)
with a lifetime driver’s license suspension. Accordingly, Sergeant Edwards
placed Harris under arrest.
[5] On March 11, 2015, the State filed an Information, charging Harris with
operating a motor vehicle after forfeiture of license for life, a Level 5 felony,
I.C. § 9-30-10-17(a)(1) (2015) (Section 17). On November 12, 2015, the trial
court conducted a bench trial. At the close of the evidence, the trial court found
Harris guilty as charged. On December 21, 2015, the trial court held a
sentencing hearing and ordered Harris to serve four years, with three years
executed through community corrections, if Harris qualified, and one year
suspended to probation.
[6] Harris now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[7] Harris claims that the State presented insufficient evidence to support his
conviction for operating a vehicle with a lifetime forfeiture of his driver’s
license. In a challenge to the sufficiency of the evidence, our court considers
the evidence most favorable to the judgment, along with any reasonable
Court of Appeals of Indiana | Memorandum Decision 09A02-1512-CR-2374 | July 29, 2016 Page 3 of 7 inferences that may be drawn therefrom. Moore v. State, 702 N.E.2d 762, 763
(Ind. Ct. App. 1998). We must determine, in light of the evidence, “whether a
reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.” Id. In doing so, we neither reweigh evidence nor assess
witness credibility. Id. So long as “there is substantial evidence of probative
value supporting each element of the crime,” we will uphold the conviction. Id.
[8] In order to convict Harris of the charged offense, the State was required to
prove that he “operate[d] a motor vehicle after the person’s driving privileges
are forfeited for life under [Indiana Code section 9-30-10-16 (Section 16)].” I.C.
§ 9-30-10-17(a)(1) (2015). During the trial, the State presented evidence that in
2011, Harris was convicted of operating a vehicle as an HTV in violation of
Indiana Code section 9-30-10-16(a)(2), which was a Class D felony at the time.
For his Section 16 conviction, Harris received a 180-day suspended sentence,
and the sentencing order indicated that he received a “lifetime suspension” of
his driver’s license. (State’s Exh. 1, p.3); see I.C. § 9-30-10-16(a)(2),(c) (2014)
(“A person who operates a motor vehicle . . . in violation of restrictions
imposed under [the HTV statute] and who knows of the existence of the
restrictions . . . commits a Level 6 felony” and “forfeits the privilege of
operating a motor vehicle for life.”).
[9] On appeal, Harris does not challenge the State’s evidence that he was operating
the vehicle and that he had previously been convicted of an offense under
Section 16 for which he received a lifetime forfeiture of his driver’s license.
Rather, he directs our attention to Indiana Code section 9-30-10-19(b), which
Court of Appeals of Indiana | Memorandum Decision 09A02-1512-CR-2374 | July 29, 2016 Page 4 of 7 provides that “[a] person whose driving privileges are suspended or forfeited for
a determined period or for life under this chapter is eligible for specialized
driving privileges under [Indiana Code chapter] 9-30-16.” Indiana Code
chapter 9-30-16 sets forth the eligibility and petition criteria for obtaining
specialized driving privileges following a license suspension. According to
Harris, “[b]ecause individuals with prior lifetime suspensions in Indiana can
now receive ‘specialized driving privileges[,’] the State was required to submit
evidence expressly proving that Harris[] remained ineligible to drive on March
10, 2015.” (Appellant’s Br. p. 8). In other words, Harris claims that it was the
State’s burden to prove that he never applied for and received specialized
driving privileges following his lifetime forfeiture.
[10] We need not address whether the State was required to prove that Harris did
not have specialized driving privileges on March 10, 2015. Indiana Code
section 9-30-10-19(b) did not go into effect until July 1, 2015, nearly four
months after Harris committed the present offense. See Ind. P.L. 188-2015, §
118. Thus, at the time Harris operated a vehicle while his driving privileges
were forfeited for life, there was no statute expressly providing that he was
eligible to petition for specialized driving privileges. 3
3 Although Indiana Code chapter 9-30-16 became effective January 1, 2015—i.e., prior to Harris’ offense, it does not specifically include a provision granting specialized driving privileges for lifetime forfeitures/convictions under the HTV statute.
Court of Appeals of Indiana | Memorandum Decision 09A02-1512-CR-2374 | July 29, 2016 Page 5 of 7 [11] Harris also contends that the State failed to prove that he knew or should have
known that his driving privileges were forfeited when he operated a vehicle on
March 10, 2015, in violation of Section 17. Harris acknowledges that in Brock v.
State, 955 N.E.2d 195, 205 (2011), our supreme court determined that
knowledge of a lifetime forfeiture is not an element of Section 17. Rather, “the
General Assembly intended [S]ection 17 to be a strict liability offense,” so proof
of knowledge is not necessary to support a conviction. Id.
[12] Nonetheless, Harris now argues that, at the time Brock was decided, “there was
no reasonable possibility that a person subject to Section 17 would have a right
to drive.” (Appellant’s Br. p. 9). According to Harris, “[t]o be subject to
Section 17[,] the defendant had to have had a prior felony conviction under
Section 16, which at the time necessarily carried a penalty of a lifetime
forfeiture of the license.” (Appellant’s Br. p. 9). However, effective July 1,
2015, the General Assembly amended Section 16 such that a conviction does
not now require an automatic lifetime forfeiture of driving privileges. See Ind.
P.L. 188-2015, § 117. Harris insists that this statutory amendment, along with
the aforementioned amendment that permits individuals with a lifetime
forfeiture to seek special driving privileges, “have now made it possible that a
person subject to Section 17 might reasonably believe that [he or she] [has] a
right to drive.” (Appellant’s Br. p. 10). As such, Harris posits that “knowledge
must be an element for a conviction under Section 17.” (Appellant’s Br. p. 11).
We disagree. As the State points out, the statutory changes that became
effective on July 1, 2015, have no bearing on Harris’ case “because the evidence
Court of Appeals of Indiana | Memorandum Decision 09A02-1512-CR-2374 | July 29, 2016 Page 6 of 7 is undisputed that Harris’[] driving privileges were suspended for life under the
prior version of [Section 16]” based on Harris’ conviction in 2011. (State’s Br.
p. 8). Therefore, we conclude that the State was not required to establish that
Harris knew or should have known about his lifetime forfeiture. Rather, the
State presented sufficient evidence to uphold Harris’ conviction under Section
17 by establishing that, in 2011, Harris was convicted under Section 16 of
operating a vehicle as an HTV, for which he forfeited his license for a lifetime.
CONCLUSION
[13] Based on the foregoing, we conclude that the State presented sufficient evidence
to support Harris’ conviction for operating a motor vehicle after forfeiture of
license for life.
[14] Affirmed.
[15] Kirsch, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 09A02-1512-CR-2374 | July 29, 2016 Page 7 of 7