Jennings v. State, No. 20A03-8607-CR-213

• Docket Nº: No. 20A03-8607-CR-213
• Citation: 503 N.E.2d 906
• Case Date: February 09, 1987
• Court: Court of Appeals of Indiana

Page 906

503 N.E.2d 906 William J. JENNINGS, Jr., Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 20A03-8607-CR-213. Court of Appeals of Indiana,
Third District. Feb. 9, 1987.
Rehearing Denied Mar. 25, 1987.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

After a jury trial, William J. Jennings was convicted of driving while intoxicated, a class D felony, ¹ and driving while license suspended, a class A misdemeanor. ² He raises the following issues:

(1) whether the evidence was sufficient to show Jennings had a prior conviction for driving while intoxicated;

(2) whether the evidence was sufficient to show Jennings's license was suspended;

(3) whether the evidence was sufficient to show Jennings was intoxicated;

(4) whether the prosecutor impermissibly commented on Jennings's failure to testify at trial;

(5) whether the prosecutor impermissibly argued her personal beliefs, placing Jennings in a position of great peril;

(6) whether the trial court erred by allowing the arresting officer to read from an "implied consent" card, and

(7) whether the trial court erred by reading to the jury preliminary instruction 8, which involved the jury's power to decide the law and the facts.

We affirm.

On the evening of February 20, 1985, Officer Thomas Love of the Elkhart City Police Department was on routine patrol. He watched as a car driven by Jennings ran a stop sign. Officer Love pursued the car, turned on his lights, and, when the car pulled over, pulled in behind it.

Officer Love saw that Jennings had trouble getting his door open. As Jennings got out of his car, Officer Love smelled the strong odor of alcohol. When asked to produce his driver's license, Jennings responded that he did not have one. Jennings's eyes were bloodshot and his speech was slurred. Officer Love administered field sobriety tests, which Jennings failed.

When Officer Love asked Jennings to take a breathalyzer test Jennings initially agreed; on the way to the police station, however, Jennings said he would not take the test because he knew he would fail.

Later that same evening, Officer Love communicated with the State Police regarding the status of Jennings's license. Officer Love was informed that Jennings's license was, at that time, suspended.

I.

Prior Conviction

Jennings argues that the evidence is insufficient to sustain his conviction for driving while intoxicated as a class D felony. Such a conviction requires a finding that the defendant has previously been convicted for driving while intoxicated. Jennings attacks the jury's finding that he had such a prior conviction. Thus, his attack is to the sufficiency of evidence to support the present class D felony conviction.

Our well-established standard of review allows us to consider only the evidence favorable to the State, together with reasonable inferences which may be drawn from that evidence. If there is substantial evidence of probative value from which the trier of fact might reasonably infer guilt beyond a reasonable doubt, we must affirm. Harris v. State (1985), Ind., 480 N.E.2d 932, 937.

The evidence favorable to the State is as follows. First, the State introduced a certified copy of Jennings's driving record from the Bureau of Motor Vehicles (BMV). The relevant portion of the record is as follows:

 Document
                Date of Description Court No. Docket No. Reference
                Action Points Of Action Termination Case No. Number
                -------- ------ ------------------ ----------- ---------- ---------
                05/11/82 Susp Closed C5766 B9999860
                07/29/82 MS DWI-Liquor 202001 24380 V577697
                07/29/82 Susp S/R DWI 07/29/83 C12367 C0582590
                11/26/83 Susp Closed 20003 C2127860
                01/20/84 Susp S/R PCF 07/20/84 202002 P8373380
                01/25/84 Susp S/R J J73575 C3239330
                11/02/84 Susp Closed C4464 C5028800
                11/02/84 Susp Closed C5296 C5028810
                11/02/84 Susp Closed 202002 C5028820
                12/19/84 MS8* Drv Whl Intx 202002 3875 W400954
                01/04/85 COM Record Reviewed DK C5378050
                01/20/84 Susp S/R DWI 04/20/84 C2425 C5575850
                02/21/85 08* Current Status--Suspended
                

Page 909

Jennings does not challenge the admission of the certified copy of his driving record. He does assert, however, that the driving record is insufficient by itself to support the conclusion that he had a prior conviction for driving while intoxicated.

Jennings's point is well-taken. In our opinion on petition for rehearing in Oller v. State (1984), Ind.App., 472 N.E.2d 610, we held that BMV records, without more, were ambiguous and could not support the conclusion that the defendant had such a prior conviction. This was true notwithstanding Ind.Code 9-11-4-14(b), which provides:

(b) In a proceeding under this article:

(1) A certified copy of a person's driving record obtained from the Bureau; or

(2) A certified copy of a court record concerning a previous conviction; constitutes prima facie evidence that the person has a previous conviction of operating while intoxicated. [IC 9-11-4-14, as added by P.L.143-1983, Sec. 1; P.L.107-1985, Sec. 18.]

At first glance, Oller appears inconsistent with IC 9-11-4-14(b), which purports to make a BMV driving record, no matter what its contents, prima facie evidence of a prior conviction of operating while intoxicated. We note, however, that such an interpretation of IC 9-11-4-14(b) would make even a driving record with only one entry--"current status: clear"--prima facie evidence of a conviction for driving while intoxicated. We are unwilling here, as we were in Oller, to give IC 9-11-4-14(b) such an interpretation. The BMV driving record must unambiguously show that the defendant has previously been convicted of driving while intoxicated. See e.g., Warner v. State (1980), Ind.App., 406 N.E.2d 971, 976.

Here, however, the BMV report is not the only evidence which supports the conclusion that Jennings had a prior conviction for driving while intoxicated. The record also contains testimony by a probation officer who had supervised Jennings on a probation resulting from a conviction for driving under the influence of alcohol. The probation officer testified that Jennings pleaded guilty to the prior charge on December 19, 1984, in Elkhart County court. This is the same date as is reflected in the BMV report.

Evidence is relevant if it tends to prove a material fact or if it makes an inference more probable than it would be absent the evidence. Data Processing v. L.H. Smith Oil Corp. (1986), Ind.App., 492 N.E.2d 314, 321. The probation officer's testimony tends to prove, or makes more probable than not, that Jennings was previously convicted of driving under the influence of alcohol. The testimony is substantial,

Page 910

probative evidence. Thus, there is evidence in the record, in addition to the BMV driving record, which supports Jennings's conviction for driving while intoxicated as a class D felony. We need not decide whether the probation officer's testimony would be, by itself, sufficient to sustain Jennings's present conviction; it is clear that the BMV report, together with the probation officer's testimony, constitute substantial evidence of probative value from which the jury could reasonably infer guilt beyond a reasonable doubt. Therefore, we must affirm.

II.

Driving with Suspended License

Jennings also attacks his conviction for driving with a suspended license, a violation of IC 9-1-4-52. He argues the evidence was insufficient to show that, at the time of his arrest, his license was suspended.

In support of his argument, Jennings cites Jones v. State (1985), Ind.App., 482 N.E.2d 746. In Jones, the only evidence of the defendant's driving history was this excerpt from the BMV record:

Document

Date of Description Court No. Docket No. Reference

Action Points Of Action Termination Case No. Number

-------- ------ ------------- ------------ ---------- ---------

06/14/82 Susp S/R LS 12/14/82 010442 C0424900

08/18/82 Susp S/R ACC 06/12/84 02010 C0597790

06/12/84 Susp Closed 02010 C4116950

08/14/84 * Current Status--Suspended

482 N.E.2d at 746. Judge Garrard made the following observation:

The only record before the court indicates a suspension on June 14, 1982 that terminated December 14, 1982 and a suspension August 18, 1982 which was "closed" on June 12, 1984. From that it cannot be inferred beyond a reasonable doubt that Jones' license was suspended on June 29, 1984. Moreover, the bare conclusion "current status--suspended" listing August 14, 1984 as the "date of action," adds nothing to the evidentiary record concerning Jones' status on June 29, 1984, the alleged date of the offense.

It may be that Jones' license was suspended on June 29, 1984, but that fact does not exist as a reasonable inference (as contrasted from conjecture or speculation) from the evidence produced at trial.

Id.

Jones is distinguishable. Here the arrest occurred on February 20, 1985. The only portion of Jennings's driving record introduced into evidence in this portion of the bifurcated proceeding is as follows:

02/21/85 08* Current Status--suspended

Thus, unlike the driving record in Jones, Jennings's driving record does not contain a notation that a previous suspension had been lifted.

Jennings's record differs from Jones's in another way: In Jones, a notation "CURRENT STATUS--SUSPENDED" was dated August 14, 1984, one and one half months after the arrest date of June 29, 1984. In the present case, Jennings's driving record shows his license was suspended as of the day immediately following his arrest. The inference is thus more reasonable in the present case that Jennings's license was suspended on February 20, 1985.

Other evidence in the record also supports the conclusion that Jennings's license was suspended on February 20, 1985. After Jennings got out of the car on the night of his arrest, he was asked by Officer Love to produce a driver's license. Jennings stated that he did not have one....