Fields v. State

¶1dissenting.

¶2I dissent because the Majority misses the gravamen of the knowledge element of the crime of driving with a suspended license. Three elements must be proven by the state to establish the crime of driving with a suspended license; they are:

(1) operation of a motor vehicle; (2) while driving privileges are suspended; and “(3) a showing that the defendant knew or reasonably could have known that his driving privileges had been suspended as a result of his having been determined to be an habitual traffic offender.” Stanek v. State, 519 N.E.2d 1263, 1266 (Ind.Ct.App.1988).

¶3The Majority misstates the third element, demanding the state prove “that the defendant knew his driving privileges had been suspended as a result of having been determined to be an habitual traffic offender.” Op. at 615. The Majority’s new statement of this third element contradicts prior holdings, which require instead that the state prove “that the defendant knew or reasonably could have known that his driving privileges had been suspended ...” Stanek, supra; Bates v. State, 650 N.E.2d 754, 757 (Ind.Ct.App.1995); Ruby v. State, 549 N.E.2d 379, 380 (Ind.Ct.App.1990), reh’g denied; Kinkade v. State, 537 N.E.2d 541, 544 (Ind.Ct.App.1989); Puskac v. State, 536 N.E.2d 299, 301 (Ind.Ct.App.1989); Burdine v. State, 510 N.E.2d 1385, 1389 (Ind.Ct.App.1987), trans. denied.

¶4Central to the knowledge element of driving with a suspended license is the simple proposition of whether the defendant knew or should have known that his license was suspended. The Majority incorrectly recasts this element as an inquiry into the mailing procedures of the Bureau of Motor Vehicles *620(“BMV”). But mailing of notice of license suspension is not an element of the crime. Collins v. State, 567 N.E.2d 798, 800 (Ind.1991) (“[Pjroof of mailing is not an actual element of the offense of operating a motor vehicle while suspended as a habitual violator. However, applying Keihn, we recognize it as permissible evidence from which a necessary element, a driver’s knowledge of the suspension, may be inferred”); Griffin v. State, 654 N.E.2d 911, 912 (Ind.Ct.App.1995); McKeown v. State, 601 N.E.2d 462, 466 (Ind.Ct.App.1992), trans. denied (“First we note that proof of mailing was not an actual element of the offense of operating a motor vehicle while suspended as an habitual violator ... ”); Borton v. State, 563 N.E.2d 182, 183 (Ind.Ct.App.1990); Chambers v. State, 547 N.E.2d 301, 302 (Ind.Ct.App.1989) (“Proof of mailing is not an element of the offense of operating a motor vehicle while suspended as an habitual violator of traffic laws”). The state need not prove proper mailing to prove its case. What the state must prove is that the defendant knew or should have known his driving privileges were suspended. Proof of proper mailing of notice may allow the finder of fact to infer that the defendant had the requisite knowledge, but proper mailing of notice does not mandate a conclusion, or even raise a presumption, that the defendant had knowledge of his suspension. Collins, supra at 801; see also Cruite v. State, 641 N.E.2d 1264, 1265-6 (Ind.1994).

¶5Proof of proper mailing procedures is simply evidence to be considered by the trier of fact, as part of all the evidence of a particular case, which must be judged for credibility and reliability, sifted and weighed.2 Likewise, absence of evidence of proper mailing procedures by the State does not foreclose a finding by the trier of fact that the defendant possessed the requisite knowledge. Presence of a defect in the BMV’s mailing procedures, or lack of proof exonerating the BMV from any possible flaw in its mailing procedures, does not automatically necessitate acquittal. Other evidence may establish the defendant’s knowledge of suspension. McKeown, 601 N.E.2d at 466 (“Although proof of mailing will permit an inference of this knowledge, the State need only prove that the defendant had knowledge of the suspension”); Bates, supra(despite lack of mailed notice from BMV, conviction for driving while privileges suspended is sustained because defendant’s actual knowledge could be inferred from prior convictions for driving while privileges were suspended and from defendant’s statement to the arresting officer that he did not have a driver’s license); McKeown v. State, 556 N.E.2d 3, 4 (Ind.Ct.App.1990), trans. denied (“Contrary to McKeown’s claim, the State need not prove that notice was sent. Rather, this is only one method of allowing an inference that the driver knew that his license was suspended. “When the Bureau of Motor Vehicles mails notice of license suspension to the defendant’s last known address, proof of such notice would allow the trial court to infer a defendant’s knowledge.’ State v. Keihn (1989), Ind., 542 N.E.2d 963, 968. However, as our Supreme Court made clear: “We conclude ... the State must prove the defendant’s knowledge of the suspension of his license.’ Id.Thus, a showing of actual knowledge of a suspended license would suffice, regardless of whether the required notice had been sent.” (Emphasis in original)); Ruby, supra(“The State may meet its burden of proving intent by referring to the facts and circumstances surrounding the case. The State must show either that the defendant acted with knowledge he had been adjudged an habitual traffic offender or that notice of the impending suspension had been mailed by the Commissioner of the Bureau of Motor Vehicles ...”); Wooten v. State, 563 N.E.2d 165, 165-6 (Ind.Ct.App.1990) (convic*621tion affirmed based on reasonable inference that defendant had actual knowledge that his license was suspended due to a prior verbal warning from a police officer to defendant that defendant’s license was suspended, despite failure of BMV to mail notice to defendant); State v. Keihn, 542 N.E.2d 963, 968 (Ind.1989) (“We conclude, ... the State must prove the defendant’s knowledge of the suspension of his license.... At the scene the defendant was unable to produce his driver’s license and told the investigating officer that his license was suspended.... However, the trial court found the evidence insufficient for a conviction because of the absence of proof that a notice of suspension was sent in due course by the Bureau of Motor Vehicles or that the defendant was given notice of his suspension in open court. We observe that application of the principles recognized by our opinion today would not have required an acquittal upon such evidence”); Burdine, supra(“As in any other prosecution requiring proof of mens rea, the State may meet its burden of proving intent by referring to the facts and circumstances surrounding the case, among them the fact that the BMV mailed notice to the defendant. Thus, we read I.C. 9-12-3-1 as requiring that the State show either that the defendant had actual knowledge that he had been adjudged an habitual traffic offender or that notice of the impending suspension had been mailed by the commissioner of the BMV ... ”). The Majority’s singular focus on the BMVs mailing procedure as determinative, even to the exclusion of the testimony deduced at trial, is misdirected and erroneous.

¶6Realizing that the knowledge element is a question of fact dependant on all the relevant evidence produced at trial, and does not turn solely upon the BMVs mailing procedure, it is well to keep in mind our standard of review for challenges to the sufficiency of the evidence supporting a conviction. As the Majority neglects to state our standard of review, it must be recited here:

When presented with a challenge to the sufficiency of the evidence, we consider only that evidence most favorable to the State, and all reasonable inferences drawn therefrom. Marshall v. State (1993), Ind., 621 N.E.2d 308, 320. We will not reweigh the evidence nor judge the credibility of the witnesses. Id.We will not disturb the findings made by the trier of fact if we find that there is substantial evidence of probative value to support the conviction. Miller v. State (1991), Ind., 563 N.E.2d 578, 581, reh’g denied (1991), 577 N.E.2d 587.

¶7Kindel v. State, 649 N.E.2d 117, 119 (Ind.Ct.App.1995). In reviewing a case on appeal we should not substitute our reading of the record for the fact finder’s weighing of evidence.

¶8Here there was conflicting evidence as to Fields’ address. Fields had stated his address variously as 233 North Parker (Record at 33), 2230 Parker (Record at 46), 2330 Parker (Record at 52), and 2330 North Parker (Record at 53), at various times. The arresting officer for the conduct from which this trial stems testified that Fields was not able to produce a driver’s license when identification information was requested of him, and that Fields stated his address was 233 North Parker, one of the addresses to which notice was sent by the BMV. (Record at 33). When first asked about another address to which notice was sent by the BMV, 1425 North Alabama, Fields was ambiguous as to whether he had ever resided at that address, responding: “Uh, let’s see ... okay, it was ... I think it was 14 ... I moved, me and my wife, we moved and we had separated from one address to the other ...” (Record at 52). This answer allows an inference that Fields had lived at the 1425 North Alabama address. While Fields later made an unequivocal denial that he had ever lived at this address, an inconsistency with the inference allowable from his prior testimony remained. (Record at 53). Other evidence of Fields’ knowledge that his driving privileges were suspended comes from Fields’ driving record, admitted into evidence at trial, which contains several convictions for driving while his license was suspended and for driving -without a valid license. Prior criminal prosecutions resulting in convictions allow an inference that Fields knew his driving privileges were suspended. Bates, supra.Finally, Fields’ driving record indicates that, although Fields was not eligible to obtain a driver’s license, he did obtain, and renew, an Indiana Identification card (“ID card”) *622through the BMV. This evidence would also support an inference that Fields was aware that his driving privileges were suspended due to his prior convictions and that Fields therefore decided to obtain ID cards in lieu of a driver’s license. There is conflicting evidence in the record, permitting conflicting inferences, but taking the evidence most favorable to the State, and all reasonable inferences drawn therefrom, there is substantial evidence of probative value to support the conviction.

¶9It is of no moment that we would have decided the case differently had we sat as the finder of fact at the bench trial. Nor is it appropriate for a court of record to cast aspersions on the honesty and integrity of a witness (“The officer’s testimony as to Fields’ statement about his current address, assuming it to be true and not merely a post-hoc effort to conform reality to fit the BMV’s records of Fields’ address ...” Op. at 617). Even sly suggestions that a witness is not credible, and may be dissembling, is inappropriate. An appellate tribunal is poorly suited to judge the credibility of witnesses. In close cases presenting conflicting testimony, it should cause this court to pause if we find ourselves reweighing witness credibility in reaching our decision.

¶10A separate issue the Majority dismisses cursorily is Fields’ own role in preventing receipt of notice. Where a defendant “has himself disabled the Bureau from giving proper notice” the defendant “is in no position to complain about lack of notice.” Roberts v. State, 182 Ind.App. 430, 395 N.E.2d 802, 803 (1979), overruled on other grounds by State v. Keihn, 542 N.E.2d 963 (Ind.1989). Such a defendant “has demonstrated no concern about whether or not the Bureau had his correct address” and entreats the court to “place a premium on deception.” Id. See also State v. Swayk, 531 N.E.2d 515, 518 (Ind.Ct.App.1988) (“As Robertsteaches, if the person involved thwarts receipt of that notice by his own failure to comply with the laws for keeping the Bureau advised of his address, he will not be heard to complain”); Brown v. State, 668 N.E.2d 1262, 1265 (Ind.Ct.App.1996), transf. granted. The Majority reasons that because Fields did not have an Indiana driver’s license, he was under no compunction to keep the BMV informed of his address. It should first be noted that Fields did possess an Indiana ID card, issued by the BMV, as reflected on his driver’s record. Ind. Code § 9-24-16-7 requires the holder of an ID card to correct the information on the ID card by applying for a duplicate card containing correct information within thirty days of a change in the card holder’s address. Fields failed to keep his information accurate and up-to-date as statutorily required, thus the holdings of Robertsand Swaykshould apply. More fundamentally, however, and even in the absence of a statutory mandate to keep his information recorded with the BMV accurate, the record reveals a continuous pattern of “flaunting the law” by Fields in driving without a license, and driving while under court order that his driving privileges are suspended, as Fields’ several convictions for this offense attest. McKeown, 601 N.E.2d at 464. Yet despite these convictions, Fields persists in driving not only illegally, but also dangerously, and he persists in obfuscating pertinent information, such as his address, from the BMV. Now Fields seeks to interpose his own deceit as a defense. A defendant such as Fields who himself “thwarts receipt” of notice should not be heard to complain of lack of receipt of that notice. Swayk, supra.Therefore, I dissent and would affirm the trial court.