Xavia Fox v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 2, 2018
• Docket: 49A04-1709-CR-2183
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 02 2018, 8:48 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Houdek Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Xavia Fox, April 2, 2018 Appellant-Defendant, Court of Appeals Case No. 49A04-1709-CR-2183 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda E. Brown Appellee-Plaintiff The Honorable Steven J. Rubick Judge Pro Tempore Trial Court Cause No. 49G10-1603-CM-11213

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2183 | April 2, 2018 Page 1 of 5 [1] Xavia Fox appeals her convictions for driving while suspended and operating a

motor vehicle having never received a license. Both counts were elevated to

Class A misdemeanors based on prior convictions. On appeal, Fox claims that

the State failed to present sufficient evidence to establish the prior convictions.

[2] We affirm in part, reverse in part, and remand.

Facts & Procedural History

[3] Late in the evening on March 20, 2016, Fox was driving while suspended and

had never received a valid driver’s license. She drove her mother’s vehicle into

three vehicles parked alongside the street. Occupants of a nearby residence

heard the crash and ran outside. As police were being called, Fox got out of the

vehicle and left on foot. Shortly thereafter, Fox was discovered by police at her

mother’s home. Fox admitted hitting “several vehicles” and “continuously

apologized to her mom for wrecking her car.” Transcript at 22, 24. One of the

responding officers then discovered that Fox did not have a license to drive.

[4] On March 24, 2016, the State charged Fox with one count each of Class A

misdemeanor driving while suspended (Count I) and Class A misdemeanor

operating without ever receiving a license (Count II) and three counts of Class

B misdemeanor leaving the scene of an accident (Count III, IV, and V). The

case proceeded to a bench trial on August 25, 2017, and Fox was convicted as

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2183 | April 2, 2018 Page 2 of 5 charged on Counts I, II, III, and V.1 The trial court sentenced her to 365 days

each on Counts I and II and 180 days each on Counts III and V. The sentences

were ordered to be served concurrently, with all but 60 days suspended to

probation. Fox appeals her convictions on Counts I and II only.

Discussion & Decision

[5] On appeal, Fox acknowledges that she drove her mother’s vehicle on the night

in question without ever having a license and while she was suspended. Her

claim is simply that the State failed to present evidence of the prior convictions

alleged in support of the enhancements for Counts I and II.

[6] When we consider a challenge to the sufficiency of the evidence, we neither

reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,

51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and

reasonable inferences supporting the conviction. Id. We will affirm if there is

probative evidence from which a reasonable trier of fact could have found the

defendant guilty beyond a reasonable doubt. Id.

[7] Ind. Code § 9-24-19-2 provides:

An individual who:

(1) knows that the individual’s driving privileges, driver’s license, or permit is suspended or revoked; and

1 Count IV was dismissed pursuant to Ind. Trial Rule 41(B).

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2183 | April 2, 2018 Page 3 of 5 (2) operates a motor vehicle upon a highway less than ten (10) years after the date on which judgment was entered against the individual for a prior unrelated violation of section 1 of this chapter, this section, IC 9-1-4-52 (repealed July 1, 1991), or IC 9-24-18-5(a) (repealed July 1, 2000);

commits a Class A misdemeanor.

This offense is elevated from a Class A infraction provided in I.C. § 9-24-19-1

based upon the prior violation. Similarly, under I.C. § 9-24-18-1, the offense of

operating having never received a license is elevated from a Class C

misdemeanor to a Class A misdemeanor if the defendant “has a prior unrelated

conviction under this section.”

[8] At trial, the State submitted into evidence, as Exhibit 1, a certified copy of

Indiana’s official driver record for Fox. Pursuant to I.C. § 9-30-3-15, the State

used this record from the Indiana Bureau of Motor Vehicles to establish prima

facie evidence of Fox’s prior driving-related convictions.2 This document

indicates that on June 28, 2012, Fox was convicted of Class A misdemeanor

driving while suspended with a prior within ten years. Thus, Fox had a

conviction under I.C. § 9-24-19-2 less than ten years before she committed the

instant offense of driving while suspended with a prior. The State presented

sufficient evidence to support Fox’s conviction on Count I.

2 Pursuant to I.C. § 9-30-3-15, “the relevant portions of a certified computer printout or electronic copy made from the records of the bureau are admissible as prima facie evidence of the prior conviction.”

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2183 | April 2, 2018 Page 4 of 5 [9] With respect to Count II, the State properly concedes that Exhibit 1 does not

show a prior conviction for operating having never received a license. Because

the evidence was insufficient in this regard, we remand for the trial court to

vacate the Class A misdemeanor conviction on Count II and enter judgment on

the lesser included offense of Class C misdemeanor operating having never

received a license.

[10] Judgment affirmed in part, reversed in part, and remanded.

Najam, J. and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2183 | April 2, 2018 Page 5 of 5