Timothy Leon Jester v. State of Indiana

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED

Jul 16 2012, 9:12 am

regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court,

court of appeals and

collateral estoppel, or the law of the case. tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

P. STEPHEN MILLER GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana

RICHARD C. WEBSTER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TIMOTHY LEON JESTER, )

)

Appellant-Defendant, )

)

vs. ) No. 02A05-1112-CR-701 )

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE ALLEN CIRCUIT COURT The Honorable Thomas J. Felts, Judge Cause No. 02C01-1107-FC-208

July 16, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

Timothy Leon Jester (“Jester”) appeals his conviction for operating a vehicle after a lifetime suspension,1 a Class C felony, and argues that the State failed to present sufficient evidence to support his conviction because the evidence did not establish that Jester’s driving privileges were actually suspended for life on June 1, 2011, the date of the offense. We agree. “[I]n cases where a defendant is charged with a Class C felony under Indiana Code [section] 9-30-10-17, proof of a prior conviction of being an habitual traffic violator with a license suspended for life, together with proof that the defendant was driving the vehicle, is sufficient to sustain a conviction. Pierce v. State, 737 N.E.2d 1211, 1214 (Ind. Ct. App. 2000) (emphasis added), trans. denied. The prior conviction may be proven by Bureau of Motor Vehicles (“BMV”) records pursuant to Indiana Code section 9-30-3-15, provided the State properly ties the BMV record to the defendant. Id. Here, the State alleged that Jester committed the charged offense on June 1, 2011. However, there was no showing that Jester’s driving privileges were actually suspended for life on the date of the offense or that he had a prior conviction of being a habitual traffic violator with a lifetime suspension on that date; instead, the BMV record admitted into evidence at trial merely showed that he had a lifetime suspension as of June 30, 2011. We therefore conclude that insufficient evidence was presented to prove that Jester committed the offense of operating a vehicle after a lifetime suspension on June 1, 2011.

Reversed.

BAKER, J., and BROWN, J., concur.

1 See Ind. Code § 9-30-10-17.