Brock v. State, No. 38A02-1003-CR-272.

Docket NºNo. 38A02-1003-CR-272.
Citation936 N.E.2d 266
Case DateJanuary 06, 2011
936 N.E.2d 266

Nathan BROCK, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.


No. 38A02-1003-CR-272.

Court of Appeals of Indiana.

Oct. 26, 2010.
Transfer Granted Jan. 6, 2011.

936 N.E.2d 267

Dale W. Arnett, Winchester, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Chief Judge.

Appellant-defendant Nathan Brock appeals his conviction for Operating a Motor Vehicle After Forfeiture of License for Life,1 a class C felony. Brock argues that his convictions violate double jeopardy because the trial court granted the State's request for a mistrial at the close of the first trial in the absence of a manifest necessity to do so and then permitted the State to retry Brock, resulting in the convictions at issue herein. Finding that the mistrial and subsequent retrial do not violate double jeopardy, we affirm.

FACTS

On May 28, 2007, Portland Police Officer Nathanial Springer was dispatched on a report that Brock was driving a vehicle without a valid license. Officer Springer went to the area and saw a vehicle being driven by Brock that matched the description provided in the dispatch. Officer Springer observed Brock drive through an intersection at which he was required to stop, nearly causing a collision with another vehicle that had the right of way. Officer Springer initiated a traffic stop, and Brock eventually stopped. Brock told the officer that he had been fleeing because he did not have a license; his driving privileges had been suspended for life as a habitual traffic violator (HTV) on June 14, 1993.

On May 30, 2007, the State charged Brock with class C felony operating a vehicle after a lifetime suspension and class D felony resisting law enforcement. Brock's first jury trial took place on January 13-14, 2010. 2 During closing argument, Brock's counsel made a number of statements to which the State objected:

• Referring to Brock's prior conviction for class D felony operating a motor
936 N.E.2d 268
vehicle while privileges are suspended, Brock's attorney noted that a conviction under that statute—Indiana Code section 9-30-10-16—"requires notice to the person that their license has been suspended. We've got no proof that Mr. Brock was ever given notice that his license was suspended." Tr. p. 262. The State objected, arguing that Brock was arguing facts that were not in evidence and mischaracterizing the evidence. The trial court sustained the objection, noting that in the instant trial, Brock was charged under Indiana Code section 9-30-10-17, which contains no notice requirement, "[s]o please refrain from inferring [sic] to the jury that there is any sort of notice requirement." Id. at 263.
• Brock's counsel continued to refer to section 16, and the trial court continued to admonish counsel that section 16 was the prior conviction, that there is no notice requirement under section 17, and that counsel must stop implying to the jury that the State was required to prove notice to obtain a conviction under section 17.
• Brock's attorney then went on to argue that there was no evidence in the record establishing a prior conviction under section 16, pointing out that the BMV record in evidence does not contain a code citation. The State contended that "the driving record is sufficient to show that he has a prior conviction for operating while HTV which is the class D Felony. Just because it doesn't say 9-30-10-16, I don't think renders it a point because all he is trying to do is get in through the back door of this element. Well maybe he didn't know his driving privileges were suspended for life. That's the only reason to allow him to argue that...." Id. at 267. The trial court agreed with the State, noting that although the BMV record does not contain a code citation, there's only one way that a person can be declared an HTV for life, which is via a section 16 conviction: "Again, there's no requirement of any sort of notice under the statute that Mr. Brock is currently charged under. His record does show he has a prior conviction for operating a vehicle as an HTV as a felony and again, you are not going to be allowed to argue any sort of notice requirement, as far as the current charge is concerned." Id. at 268.
• Brock's counsel then turned to the jury and said, "there is nothing in this [BMV] report that says Mr. Brock violated 9-30-10-16." Id. at 269. The State objected, arguing that counsel was misstating and mischaracterizing the evidence.3 The trial court again told counsel not to tell the jury that Brock was accused of violating section 16, emphasizing, "Don't do it again. Don't do it again." Id.
• Next, counsel noted that the BMV report indicates that Brock moved to Alabama in 1992, and the State objected because it contended counsel was implying that Brock had no notice that his privileges had been suspended because he had moved out of state. Counsel told the trial court that he made the point to establish that when Brock was pulled over for the instant offenses, he had an Alabama driver's license. The trial court responded that "it is driving privilege[s] in
936 N.E.2d 269
Indiana [that] we are concerned with." Id. at 270.
• Brock's counsel next told the jury that, "other than a couple of lines" in the BMV report, there is nothing that indicates what his prior conviction was for.
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3 practice notes
  • Brock v. State , No. 38S02–1101–CR–8.
    • United States
    • Indiana Supreme Court of Indiana
    • October 18, 2011
    ...mistrial and that, in any event, there was “manifest necessity” justifying the trial judge's declaration of a mistrial. Brock v. State, 936 N.E.2d 266, 270–72 (Ind.Ct.App.2010). Brock sought, and we granted, transfer, Brock v. State, 950 N.E.2d 1195 (Ind.2011) (table), thereby vacating the ......
  • Beattie v. State , No. A–10505.
    • United States
    • Court of Appeals of Alaska
    • June 24, 2011
    ...judge expressed clear intent to declare mistrial and defense counsel had opportunity to object but did not). FN7. See Brock v. State, 936 N.E.2d 266, 270 (Ind.App.2010) (indicating defendant waived right to claim double jeopardy violation by not objecting to State's request for mistrial or ......
  • EState of Collins v. McKinney, No. 02A05-1004-EU-286.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 17, 2011
    ...to McKinney's efforts to close on the property, exclusive of the periods of time before the order for specific performance and after936 N.E.2d 266the closing between McKinney and Lake City Bank in April 2009.Conclusion In light of the discussion above, we find no error in the court's award ......
3 cases
  • Brock v. State , No. 38S02–1101–CR–8.
    • United States
    • Indiana Supreme Court of Indiana
    • October 18, 2011
    ...mistrial and that, in any event, there was “manifest necessity” justifying the trial judge's declaration of a mistrial. Brock v. State, 936 N.E.2d 266, 270–72 (Ind.Ct.App.2010). Brock sought, and we granted, transfer, Brock v. State, 950 N.E.2d 1195 (Ind.2011) (table), thereby vacating the ......
  • Beattie v. State , No. A–10505.
    • United States
    • Court of Appeals of Alaska
    • June 24, 2011
    ...judge expressed clear intent to declare mistrial and defense counsel had opportunity to object but did not). FN7. See Brock v. State, 936 N.E.2d 266, 270 (Ind.App.2010) (indicating defendant waived right to claim double jeopardy violation by not objecting to State's request for mistrial or ......
  • EState of Collins v. McKinney, No. 02A05-1004-EU-286.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 17, 2011
    ...to McKinney's efforts to close on the property, exclusive of the periods of time before the order for specific performance and after936 N.E.2d 266the closing between McKinney and Lake City Bank in April 2009.Conclusion In light of the discussion above, we find no error in the court's award ......

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