Burdine v. State

• Decision Date: 30 July 1987
• Docket Number: No. 73A01-8609-CR-249,73A01-8609-CR-249
• Citation: 510 N.E.2d 1385
• Parties: Gary BURDINE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1385

510 N.E.2d 1385

Gary BURDINE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 73A01-8609-CR-249.

Court of Appeals of Indiana First District.

July 30, 1987.

Rehearing Denied Aug. 17, 1987.

Mark W. McNeely, McNeely, Sanders & Stephenson, Shelbyville, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Defendant-appellant Gary Burdine appeals his convictions of operating a motor vehicle while his driving privileges have been suspended under IND.CODE 9-12-2 ¹ and leaving the scene of an accident involving serious bodily injury. ²

We affirm Burdine's conviction of leaving the scene of an accident but reverse the conviction of the offense defined in IND.CODE 9-12-3-1, which we refer to as driving after having been adjudged an habitual traffic offender.

Burdine was charged with six offenses as the result of a traffic accident which occurred on the morning of September 29, 1985. The State subsequently dismissed the charge of driving while one's license has been suspended brought pursuant to I.C. 9-1-4-52 as well as two other charges, leaving three offenses to be tried. The jury acquitted Burdine of criminal recklessness but found him guilty of the remaining two offenses.

At trial, the court admitted into evidence a certified abstract of Burdine's driving record which indicated that Burdine had been adjudged an habitual traffic offender by the Bureau of Motor Vehicles (BMV) on May 27, 1985. Burdine conceded that he had been driving one of the vehicles involved in the traffic accident and that he had left the scene without making any effort to determine whether anyone in the other vehicle had been injured.

Burdine moved to Tennessee in April, 1985 and remained there the entire month of May, 1985. He indicated he believed his last known address at the BMV to be his father's former residence. He did not change his address with the BMV; neither did he pick up his mail at his father's residence. Burdine admitted he knew he was not permitted to drive in Indiana because his license had been suspended, presumably as a consequence of an accident which occurred on January 1, 1985. He testified however that he did not know that he had been adjudged an habitual traffic offender. The State did not present any evidence that notice had been mailed to Burdine of the adjudication.

I.

Burdine challenges both convictions based upon the sufficiency of the evidence supporting them. With respect to the leaving the scene of an accident conviction, Burdine argues that the State failed to prove that he had knowledge of serious bodily injury to the victim.

When the sufficiency of the evidence is raised on appeal, this court will consider only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom in order to determine whether a reasonable juror could have found the existence of each of the material elements of the crime charged beyond a reasonable doubt. The court can neither weigh the evidence nor pass on the credibility of witnesses. Johnson v. State (1980), 272 Ind. 547, 400 N.E.2d 132; Baum v. State (1976), 264 Ind. 421, 345 N.E.2d 831.

In Micinski v. State (1986), Ind., 487 N.E.2d 150, the Indiana Supreme Court considered whether knowledge of the fact that an injury accident has occurred is a necessary element of proof in a prosecution under I.C. 9-4-1-40, the legislature having omitted any culpability requirement in the statute. The court concluded that knowledge is a necessary component of the State's proof but specified that proof of actual knowledge was not necessary in order to obtain a conviction. Id. at 153. Rather, the jury may infer that the defendant knew that an accident occurred or that people were injured from an examination of the circumstances of the event. The court defined the knowledge requirement, indicating that where conditions are such that the driver should have known that an accident occurred or should have reasonably anticipated that the accident resulted in injury to a person, the requisite proof of knowledge would be present. Id. Burdine's jury was given this definition. ³

In the present case, we would be surprised if the jury had reached any conclusion but the one it did. Photographs of Burdine's vehicle taken shortly after the collision revealed the hood bent in half and pushed back toward the windshield and the grill forced toward the engine at a 45? angle. One of the investigating officers opined based upon the physical evidence at the scene that the victim's truck, which Burdine struck from behind, apparently was carried with its back end up on top of Burdine's light-colored vehicle for some distance. The evidence most favorable to the State also indicates that Burdine abandoned his vehicle when it stopped and was no longer operable. Burdine himself testified that there was no doubt in his mind that he hit the other vehicle. He told the jury that he could have been going as fast as twenty miles per hour over the thirty-mile-per-hour speed limit when he hit the victim's truck. Under these circumstances, there was substantial evidence of probative value from which the jury could have inferred that Burdine reasonably should have anticipated serious bodily injury to the occupant of the other vehicle.

With respect to the driving after having been adjudged an habitual traffic offender conviction, Burdine contends that without proof of proper notice from the BMV or some other proof that he knew he had been declared an habitual traffic offender, the State did not prove beyond a reasonable doubt that he knowingly committed any crime. The State argues only that the offense defined in I.C. 9-12-3-1 contains no mens rea component and is malum prohibitum in nature. Thus, the State asserts it need not show any mental element. We note that the trial court instructed the jury that knowledge was an essential element of the crime as the State had charged the offense, defining that element by reading the statutory definition of "knowingly" contained in I.C. 35-41-2-2(b).

I.C. 9-12-3-1 defines the offense of operating a motor vehicle while driving privileges are suspended under I.C. 9-12-2. ⁴ The legislature did not explicitly provide the mental state required. However, the absence of language indicating the level of culpability is not conclusive upon the question of whether guilty knowledge is an essential element of the crime. ⁵ Gregory v. State (1973), 259 Ind. 652, 291 N.E.2d 67, 68; Lemont v. State (1977), 265 Ind. 687, 359 N.E.2d 251 (Hunter, J. dissenting from denial of transfer). That determination is a matter of statutory construction, and is made in view of the legislative intent. ⁶ Gregory, supra; State v. Kuebel (1961), 241 Ind. 268, 172 N.E.2d 45, 47.

Our review of the statutory provisions defining the offenses related to the habitual traffic offender status reveals that knowledge of the fact of adjudication was, with the chapter's initial appearance in the code, inherent in the crime of driving after having been adjudged an habitual traffic offender, notwithstanding the legislature's express formulation of the offense. The chapter provided for the initiation of a civil proceeding and the entering of an order to show cause why the person named should not be adjudged an habitual traffic offender. After a hearing and a finding by the court that the individual was the person named in the abstract of conviction and that he or she was an habitual violator, the legislature directed the court to issue an order directing the person not to operate a motor vehicle for a period of ten years. IC 1971, 9-4-13-4 through 9-4-13-10 (Burns Code Ed., Supp.1972). Thus, knowledge of the fact of adjudication was incorporated by nature of the process of determining the habitual traffic offender status. When the State brought a prosecution against an individual charging a violation of I.C. 9-4-13-13, 14, it was required to demonstrate not only that the person had been adjudged an habitual traffic offender by the court, but also that the individual operated a motor vehicle "while the order prohibiting such operation remain[ed] in effect." ⁷

Although the initial habitual traffic offender provision may be indicative of the legislature's intent to incorporate an element of culpability, the remainder of the legislative history provides little guidance. The determination of habitual offender status became an administrative matter within the authority of the BMV in 1983. See, I.C. 9-4-13-4 (Burns Code Ed., Repl.1983). Sections providing for immediate suspension were again amended and recodified, retaining the ex parte determination by the BMV unless the person notified the BMV within thirty days of material error. Cf IC 1971, 9-4-13-4 with 9-12-2-2 (Burns Code Ed., Supp.1984). The legislature also substituted the language "while his driving privileges are suspended" for the language "while the order of the court prohibiting operation remains in effect." ⁸ In light of the fact the statutory prohibition implicitly incorporated an element of culpability at the time of its inception, and in the absence of a clear expression of contrary intent in the language or subsequent history of the offense, see Liparota v. U.S. (1985), 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434, we invoke the canon of statutory construction which requires that ambiguity in a criminal statute be resolved in favor of the accused. State v. McGraw (1985), Ind., 480 N.E.2d 552, 553; Gore v. State (1983), Ind.App., 456 N.E.2d 1030, 1033. Accordingly, we recognize that the existence of a mens rea is the rule rather than the exception in Anglo-American jurisprudence, Morissette v. U.S. (1952), 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288; U.S. v. Freed (1971), 401 U.S. 601, 608, 614, 91 S.Ct. 1112, 1118, 1120, 28 L.Ed.2d 356; Liparota, supra, 471 U.S. at 426, 105...