David Harris v. State of Indiana (mem. dec.)

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.

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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

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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

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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

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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

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