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. Apr 04 2013, 9:33 am ATTORNEY FOR APPELLANT:
BRIAN J. JOHNSON Danville, Indiana
IN THE COURT OF APPEALS OF INDIANA
JORDAN HEIMANSOHN, ) ) Appellant-Defendant, ) ) vs. ) No. 32A01-1209-CR-399 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable David H. Coleman, Judge Cause No. 32D02-1107-CM-592
April 4, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Jordan Heimansohn appeals his conviction for driving while suspended as a class
A misdemeanor. Heimansohn raises two issues which we consolidate and restate as
whether the evidence is sufficient to sustain his conviction. We reverse.
FACTS AND PROCEDURAL HISTORY
On July 25, 2011, Danville Police Officer Chris Gill was dispatched to a business
on Main Street across from the courthouse regarding a possible break-in by a male
subject. When he arrived on the scene, Officer Jerry Cunningham was already present.
Officer Cunningham informed Officer Gill that a male had entered the building from the
window, and Heimansohn “came outside” at about that time. Transcript at 6.
Officer Gill asked Heimansohn for his identification. Heimansohn stated his
name, produced his identification, and informed Officer Gill that his family owned the
residence. Officer Gill observed Heimansohn’s date of birth on his identification and
recorded the birth date in his report. Officer Gill asked Heimansohn how he arrived at
that location, and Heimansohn stated that he had driven his truck there from Lowe’s.
Officer Gill observed a red and white pickup truck parked in the road. He checked
Heimansohn’s driver’s license information and discovered that his license was
suspended.
On July 27, 2011, the State charged Heimansohn with driving while suspended as
a class A misdemeanor. On July 24, 2012, Heimansohn failed to appear for trial, the
court denied a motion by Heimansohn’s counsel for a continuance, and the court held a
bench trial.
2 After Officer Gill testified that Heimansohn had stated that he had driven his truck
to the subject location from Lowe’s and after he testified regarding the suspension of
Heimansohn’s license, Heimansohn’s counsel objected to any information received from
dispatch as hearsay and any testimony from Officer Gill that Heimansohn “was in fact
suspended” because “[t]here’s been no corpus delicti established of the commission of
any crime.” Id. at 11. Heimansohn’s counsel also stated: “So absent anybody – any
competent witness testifying to observe Mr. Heimansohn operating a vehicle, there’s no
corpus delicti of a crime being committed and any statement from Mr. Heimansohn to
such would be inadmissible.” Id. The prosecutor argued:
As to the corpus delicti rule, Officer Gill has testified that he observed a truck located at the residence where Mr. Heimansohn was found. That is evidence that . . . is in addition to Mr. Heimansohn’s statements, . . . and therefore the corpus delicti rule would not prevent the admission of . . . those statements as a basis for his guilt.
Id. at 11-12. The court then stated: “I’m going to overrule the objection. I think the, uh,
what the dispatch said would show why the officer acted as he did.” Id. at 12.
The State moved to admit an Official Driver Record from the Bureau of Motor
Vehicles that listed a name of Jordan Thomas Heimansohn, a birth date of January 19,
1984, and offenses of driving while suspended in 2007 and 2008. Heimansohn’s counsel
objected on the basis of relevancy “with the absence of establishing a corpus delicti.” Id.
The court overruled the objection and admitted the driver record. The court found
Heimansohn guilty as charged and later sentenced him to time served and suspended his
driving privileges for ninety days.
3 ANALYSIS
We first note that the State did not file an appellee’s brief. The obligation of
controverting arguments presented by the appellant properly remains with the State.
Bovie v. State, 760 N.E.2d 1195, 1197 (Ind. Ct. App. 2002). When the appellee does not
submit a brief, the appellant may prevail by making a prima facie case of error – an error
at first sight or appearance. Id. However, we are still obligated to correctly apply the law
to the facts of the record to determine if reversal is required. Id.
The issue is whether the evidence is sufficient to sustain Heimansohn’s conviction.
Heimansohn argues that his statement that he drove a truck was admitted in error because
the State failed to establish the corpus delicti for driving while suspended. He asserts that
the only evidence that he operated a motor vehicle is the testimony of Officer Gill related
to Heimansohn’s statement. Heimansohn contends that the reference to Lowe’s
“[p]resumably . . . was a reference to the major hardware chain, but this is not a fact of
which a court can take judicial notice.” Appellant’s Brief at 10. Heimansohn argues that
there was no evidence presented as to a possible location of any Lowe’s from which the
trier of fact could assume that Heimansohn had driven on a highway. Heimansohn also
argues that the lack of identifying characteristics on the driving record was insufficient to
establish that the driving record belonged to him.
Generally, when reviewing the sufficiency of the evidence to support a conviction,
we must consider only the probative evidence and reasonable inferences supporting the
conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness
credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably
4 to the trial court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting
Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence
overcome every reasonable hypothesis of innocence. Id. at 147. The evidence is
sufficient if an inference may reasonably be drawn from it to support the conviction. Id.
The offense of driving while suspended as a class A misdemeanor is governed by
Ind. Code § 9-24-19-2, which at the time of the offense provided:
A person who operates a motor vehicle upon a highway when the person knows that the person’s driving privilege, license, or permit is suspended or revoked, when less than ten (10) years have elapsed between:
(1) the date a judgment was entered against the person for a prior unrelated violation of section 1 of this chapter,[1] this section, IC 9-1-4-52 (repealed July 1, 1991), or IC 9-24-18-5(a) (repealed July 1, 2000); and
(2) the date the violation described in subdivision (1) was committed;[2]
commits a Class A misdemeanor.
(Subsequently amended by Pub. L. No. 6-2012, § 70 (eff. Feb. 22, 2012); Pub. L. No. 33-
2012, § 1 (eff. March 14, 2012)). Thus, to convict Heimansohn of driving while
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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. Apr 04 2013, 9:33 am ATTORNEY FOR APPELLANT:
BRIAN J. JOHNSON Danville, Indiana
IN THE COURT OF APPEALS OF INDIANA
JORDAN HEIMANSOHN, ) ) Appellant-Defendant, ) ) vs. ) No. 32A01-1209-CR-399 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable David H. Coleman, Judge Cause No. 32D02-1107-CM-592
April 4, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Jordan Heimansohn appeals his conviction for driving while suspended as a class
A misdemeanor. Heimansohn raises two issues which we consolidate and restate as
whether the evidence is sufficient to sustain his conviction. We reverse.
FACTS AND PROCEDURAL HISTORY
On July 25, 2011, Danville Police Officer Chris Gill was dispatched to a business
on Main Street across from the courthouse regarding a possible break-in by a male
subject. When he arrived on the scene, Officer Jerry Cunningham was already present.
Officer Cunningham informed Officer Gill that a male had entered the building from the
window, and Heimansohn “came outside” at about that time. Transcript at 6.
Officer Gill asked Heimansohn for his identification. Heimansohn stated his
name, produced his identification, and informed Officer Gill that his family owned the
residence. Officer Gill observed Heimansohn’s date of birth on his identification and
recorded the birth date in his report. Officer Gill asked Heimansohn how he arrived at
that location, and Heimansohn stated that he had driven his truck there from Lowe’s.
Officer Gill observed a red and white pickup truck parked in the road. He checked
Heimansohn’s driver’s license information and discovered that his license was
suspended.
On July 27, 2011, the State charged Heimansohn with driving while suspended as
a class A misdemeanor. On July 24, 2012, Heimansohn failed to appear for trial, the
court denied a motion by Heimansohn’s counsel for a continuance, and the court held a
bench trial.
2 After Officer Gill testified that Heimansohn had stated that he had driven his truck
to the subject location from Lowe’s and after he testified regarding the suspension of
Heimansohn’s license, Heimansohn’s counsel objected to any information received from
dispatch as hearsay and any testimony from Officer Gill that Heimansohn “was in fact
suspended” because “[t]here’s been no corpus delicti established of the commission of
any crime.” Id. at 11. Heimansohn’s counsel also stated: “So absent anybody – any
competent witness testifying to observe Mr. Heimansohn operating a vehicle, there’s no
corpus delicti of a crime being committed and any statement from Mr. Heimansohn to
such would be inadmissible.” Id. The prosecutor argued:
As to the corpus delicti rule, Officer Gill has testified that he observed a truck located at the residence where Mr. Heimansohn was found. That is evidence that . . . is in addition to Mr. Heimansohn’s statements, . . . and therefore the corpus delicti rule would not prevent the admission of . . . those statements as a basis for his guilt.
Id. at 11-12. The court then stated: “I’m going to overrule the objection. I think the, uh,
what the dispatch said would show why the officer acted as he did.” Id. at 12.
The State moved to admit an Official Driver Record from the Bureau of Motor
Vehicles that listed a name of Jordan Thomas Heimansohn, a birth date of January 19,
1984, and offenses of driving while suspended in 2007 and 2008. Heimansohn’s counsel
objected on the basis of relevancy “with the absence of establishing a corpus delicti.” Id.
The court overruled the objection and admitted the driver record. The court found
Heimansohn guilty as charged and later sentenced him to time served and suspended his
driving privileges for ninety days.
3 ANALYSIS
We first note that the State did not file an appellee’s brief. The obligation of
controverting arguments presented by the appellant properly remains with the State.
Bovie v. State, 760 N.E.2d 1195, 1197 (Ind. Ct. App. 2002). When the appellee does not
submit a brief, the appellant may prevail by making a prima facie case of error – an error
at first sight or appearance. Id. However, we are still obligated to correctly apply the law
to the facts of the record to determine if reversal is required. Id.
The issue is whether the evidence is sufficient to sustain Heimansohn’s conviction.
Heimansohn argues that his statement that he drove a truck was admitted in error because
the State failed to establish the corpus delicti for driving while suspended. He asserts that
the only evidence that he operated a motor vehicle is the testimony of Officer Gill related
to Heimansohn’s statement. Heimansohn contends that the reference to Lowe’s
“[p]resumably . . . was a reference to the major hardware chain, but this is not a fact of
which a court can take judicial notice.” Appellant’s Brief at 10. Heimansohn argues that
there was no evidence presented as to a possible location of any Lowe’s from which the
trier of fact could assume that Heimansohn had driven on a highway. Heimansohn also
argues that the lack of identifying characteristics on the driving record was insufficient to
establish that the driving record belonged to him.
Generally, when reviewing the sufficiency of the evidence to support a conviction,
we must consider only the probative evidence and reasonable inferences supporting the
conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness
credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably
4 to the trial court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting
Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence
overcome every reasonable hypothesis of innocence. Id. at 147. The evidence is
sufficient if an inference may reasonably be drawn from it to support the conviction. Id.
The offense of driving while suspended as a class A misdemeanor is governed by
Ind. Code § 9-24-19-2, which at the time of the offense provided:
A person who operates a motor vehicle upon a highway when the person knows that the person’s driving privilege, license, or permit is suspended or revoked, when less than ten (10) years have elapsed between:
(1) the date a judgment was entered against the person for a prior unrelated violation of section 1 of this chapter,[1] this section, IC 9-1-4-52 (repealed July 1, 1991), or IC 9-24-18-5(a) (repealed July 1, 2000); and
(2) the date the violation described in subdivision (1) was committed;[2]
commits a Class A misdemeanor.
(Subsequently amended by Pub. L. No. 6-2012, § 70 (eff. Feb. 22, 2012); Pub. L. No. 33-
2012, § 1 (eff. March 14, 2012)). Thus, to convict Heimansohn of driving while
suspended as a class A misdemeanor, the State was required to prove that Heimansohn
operated a motor vehicle upon a highway when he knew that his driving license was 1 Ind. Code § 9-24-19-1 provides: “Except as provided in sections 2, 3, and 4 of this chapter, a person who operates a motor vehicle upon a highway while the person’s driving privilege, license, or permit is suspended or revoked commits a Class A infraction.” 2 In State v. Gearlds, 956 N.E.2d 141, 145 (Ind. Ct. App. 2011), the court addressed this statute and stated that “what the legislature intended was to elevate the offense to a Class A misdemeanor if the offender had a prior unrelated judgment for driving while suspended within the past ten years.” The court also stated: “When examining the statutory scheme as a whole, we refuse to rely excessively on the legislature’s erroneous use of ‘subdivision (1).’” Id. The statute was amended in 2012.
5 suspended when less than ten years had elapsed between the date of the prior judgment
and the date of the current offense.
While Officer Gill testified that Heimansohn stated that he had driven his truck
there from Lowe’s when he asked Heimansohn how he arrived at the location, the State
did not present testimony of any witness who observed Heimansohn driving and the
record does not reveal the location of the red and white pickup truck other than that it was
parked in the road. Additionally the record does not indicate Heimansohn’s position in
relation to the location of the pickup truck, whether the pickup truck was registered to
Heimansohn, whether he possessed the keys for the truck, whether there were any other
persons present at the scene, or whether the truck had been in a recent accident.
Moreover, we need not delve into the corpus delicti rule because we cannot say that the
State demonstrated that Heimansohn was the person previously suspended. The
identifying information on the driver record included a physical description of
Heimansohn, but Heimansohn was tried in absentia and our review of the record does not
reveal any evidence of Heimansohn’s physical characteristics. The driver record
included a date of birth of January 19, 1984, but Officer Gill testified that he saw a date
of birth for Heimansohn written in his report of “1-18-84.”3 Transcript at 8. Under the
circumstances, we cannot say that the State demonstrated that Heimansohn was the
person previously suspended. See Duncan v. State, 274 Ind. 144, 151, 409 N.E.2d 597,
601 (Ind. 1980) (“A mere document, relating to a conviction of one with the same name
as the defendant would have been insufficient.”); Livingston v. State, 537 N.E.2d 75, 78
3 Officer Gill’s report was not admitted into evidence.
6 (Ind. Ct. App. 1989) (holding that the evidentiary link was too tenuous to permit a
reasonable juror to find beyond a reasonable doubt that the defendant was previously
convicted of driving while intoxicated where the driver record and the abstract of court
record contained different birth dates). Consequently, we conclude that under these
specific circumstances there is insufficient evidence of probative value from which the
trier of fact could reasonably have found beyond a reasonable doubt that Heimansohn
committed the offense charged. Accordingly, we reverse and vacate Heimansohn’s
conviction for driving while suspended as a class A misdemeanor.
For the foregoing reasons, we reverse Heimansohn’s conviction for driving while
suspended as a class A misdemeanor.
Reversed.
BAILEY, J., and VAIDIK, J., concur.