Collins v. State

• Citation: 567 N.E.2d 798
• Decision Date: 07 March 1991
• Docket Number: No. 79S02-9103-CR-174,79S02-9103-CR-174
• Parties: Larry J. COLLINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 798

567 N.E.2d 798

Larry J. COLLINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 79S02-9103-CR-174.

Supreme Court of Indiana.

March 7, 1991.

Brent Westerfeld, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

The defendant Larry J. Collins appeals his conviction for operating a motor vehicle while suspended as a habitual traffic violator, a Class D felony. Indiana Code Sec. 9-12-3-1. His four-year sentence was suspended except for 100 days. In an unpublished memorandum opinion, the Court of Appeals reversed the conviction, 564 N.E.2d 357, ruling that the State's exhibit containing a certification of mailing from the Indiana Bureau of Motor Vehicles was inadmissible as an official record or a business record. The State now petitions for transfer. Transfer is granted. We affirm the conviction.

In his direct appeal, the defendant raises the following issues:

a)whether the trial court erred in admitting a certification of mailing of suspension notice;

b)whether, apart from the certification, the remaining evidence is sufficient to sustain the conviction;

c)whether an instruction regarding proof of mailing as evidence of receipt constituted fundamental error.

When arrested for driving left of center on September 10, 1988, the defendant advised Indiana State Police detective Troy Knorr that his license was suspended. Records from the Indiana Bureau of Motor Vehicles indicated that the defendant's driver's license was suspended as a habitual traffic violator beginning January 16, 1987, and that on December 17, 1986, a notice of suspension thereon was mailed to Collins at his Indianapolis address. The defendant testified that he never received this notice of suspension; that the Indianapolis address was his "legal address" at the time; that he had not notified the Bureau of any address change; but that he was then separated from his wife and he was not living there when the notice would have been mailed.

1. Admissibility of Mailing Certification

The trial court overruled the defendant's timely objection to that portion of State's Exhibit 1 purporting to be a certification dated May 11, 1989, of a notice that a Habitual Traffic Violator Notice of Suspension was mailed to the defendant at the indicated address on December 17, 1986.

The Court of Appeals found the present factual situation identical to that in Harris v. State (1990), Ind.App., 555 N.E.2d 495, which held that a certification of mailing did not qualify as an official record because there was no duty, either statutory or implied, to maintain records of the mailing of suspension notices. Because transfer was not sought in Harris, this Court has not had occasion to review this ruling.

In Harris, the majority recognized that with the advent of State v. Keihn (1989), Ind., 542 N.E.2d 963, "the duty of keeping a record of mailing of suspension notices may be necessarily implied," but concluded that such duty "did not exist before the decision in Keihn." Harris, 555 N.E.2d 495 at 498, n. 3. Judge Baker dissented, viewing Keihn as articulating an already existing duty to keep records of mailing of notice.

In Keihn, this Court expressly approved Burdine v. State (1987), Ind.App., 510 N.E.2d 1385, which required the State in a prosecution for driving after having been adjudged a habitual traffic violator to prove the defendant's knowledge of the suspension as a result of such status. Explaining our belief that the prosecution's difficulty in proving such knowledge was not "a strong enough consideration to obviate knowledge as a required element of proof," we observed:

When the Bureau of Motor Vehicles mails a 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.

Keihn, 542 N.E.2d at 968. As correctly noted in Chambers v. State (1989), Ind.App., 547 N.E.2d 301, proof 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.

The State contends that the questioned exhibit was admissible as an official record because the Bureau of Motor Vehicles had a duty to record the mailing of notice resulting not only from Keihn but also from the applicable statutory provisions that require the Bureau to mail a notice, and to suspend a violator's license 30 days after the notice is sent. Indiana Code Sec. 9-12-2-1 provides:

(a) Whenever it appears from the records maintained in the bureau that a person's driving record brings him within the definition of an [sic] habitual violator under IC 9-12-1-4, the commissioner shall mail a notice to the person's last known address that informs the person that his driving privileges will be suspended in thirty (30) days because the person is an [sic] habitual violator according to the records of the bureau.

(b) Thirty (30) days after the commissioner has mailed a notice under this section, he shall suspend the person's driving privileges for:

(1) ten (10) years if the person is an [sic] habitual violator under IC 9-12-1-4(b);

(2) ten (10) years if the person is an [sic] habitual violator under IC 9-12-1-4(c); or

(3) five (5) years if the person is an [sic] habitual violator under IC 9-12-1-4(d).

(c) The notice must inform the person that he may be entitled to relief under section 2 of this chapter or may seek judicial review of his suspension under this chapter.

The State argues that a duty to record mailing should be inferred from the fact that proof of mailing is an evidentiary prerequisite to establishing that the suspension is valid as occurring 30 days after the notice was mailed. Chambers v. State (1989), Ind.App., 547 N.E.2d 301.

We agree. Because of the resulting duty to record the mailing of notice, the certification of mailing contained in State's Exhibit 1 was admissible as within the official records exception to the hearsay rule. On this point Harris is overruled. The trial court did not err in overruling the defendant's objection.

2. Sufficiency of Evidence

The defendant's argument regarding insufficiency of evidence is premised upon his claim that the certification of mailing was not admissible. Since he has not prevailed on that issue, his claim of insufficient evidence must also fail.

3. Instruction That Mailing Was Sufficient to Prove Receipt

The defendant contends that the trial court committed fundamental constitutional error when it instructed the jury that evidence of a properly mailed letter was sufficient to establish receipt by the addressee unless contradicted by other evidence. He argues that the instruction could reasonably be understood to create a mandatory...