Nasser v. State
| Decision Date | 11 May 2000 |
| Docket Number | No. 84A04-9910-CR-473.,84A04-9910-CR-473. |
| Citation | 727 N.E.2d 1105 |
| Parties | Kevin NASSER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
William E. Daily, Danville, Indiana, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Eileen Euzen, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Appellant-defendant Kevin Nasser appeals his conviction for Driving While Suspended,1 a Class A misdemeanor. Specifically, he contends that his Due Process Rights were violated under U.S. Const. amend. V and XIV when the trial court did not conduct a bifurcated proceeding with respect to the offense. Nasser also maintains that the evidence was insufficient to support the conviction and that he was improperly sentenced.
The facts most favorable to the verdict reveal that on the evening of June 26, 1998, Terre Haute Police Officer Denzil Lewis was on routine traffic patrol when he observed a red 1988 Chevy Camaro automobile tailgating another vehicle. Officer Lewis began following the Camaro and eventually activated his red lights. Nasser was identified as the operator of the vehicle, whereupon Officer Lewis conducted a driver's license computer check. After discovering that Nasser's license had been suspended for failing to maintain automobile insurance, Officer Lewis arrested Nasser for driving with a suspended license. Nasser was charged with the offense as a Class A misdemeanor, inasmuch as the State alleged that he had been previously found guilty of driving while suspended on or about February 17, 1998.
During a jury trial which commenced on September 23, 1999, the State introduced a certified copy of Nasser's driving record from the Bureau of Motor Vehicles (BMV) into evidence. That record demonstrated that Nasser had a prior violation for driving while suspended on February 17, 1998. The record also showed that Nasser's license was suspended from March 29, 1998, to June 27, 1998, in light of his failure to maintain automobile insurance. The BMV sent a notice of suspension to Nasser on February 17, 1998 at his Terre Haute address, and another one to him on March 30, 1998 at the same address.
Following the trial, Nasser was found guilty as charged. Thereafter, the trial court ordered Nasser to serve a one-year executed term, which was ordered to run consecutive with a four-year sentence that had been imposed in the Vigo Superior Court with respect to a prior conviction. Nasser now appeals.
Nasser first contends that his right to due process was violated when the trial court did not conduct a bifurcated proceeding with respect to the driving while suspended charge. Specifically, Nasser maintains that trying a defendant without a bifurcated proceeding in circumstances involving an enhancement in light of a prior conviction constitutes a denial of fundamental due process rights under the United States Constitution, Amend. V and XIV.
We initially observe that the driving while suspended statute, I.C. § 9-24-18-5(a)(1), (2) provides that:
(a) Except as provided in subsections
(b) and (d), a person who operates a motor vehicle upon a highway while the person's driving privilege, license, or permit is suspended or revoked commits a Class A infraction. However, if:
In support of his position that the trial court is required to conduct bifurcated proceedings under this statute, Nasser directs us to IND. CODE. § 35-34-1-2.5 and IND. CODE § 35-38-1-2(c). The first statute reads as follows:
If the penalty for an offense is, by the terms of the statute, increased because the person was previously convicted of the offense, the state may seek to have the person sentenced to receive the increased penalty by alleging, on a page separate from the rest of the charging instrument, that the person was previously convicted of the offense.
The second statute that Nasser points to provides that:
I.C. § 35-38-1-2(c). In construing these statutes, Nasser urges that the State was required to hold a new proceeding on the Class A misdemeanor enhancement provision of the driving while suspended statute. Error occurred here, Nasser contends, because his prior violation for driving while suspended was presented to the jury before there was any determination as to the original charge as a Class A infraction.
We initially observe that Nasser has waived the issue because he failed to object to the manner of the proceedings at trial. See James v. State, 613 N.E.2d 15, 25 (Ind.1993) (). Waiver notwithstanding, we note that our supreme court in Landis v. State, 704 N.E.2d 113 (Ind.1998), determined that a defendant is entitled to a bifurcated proceeding where evidence of a prior conviction will be presented to a jury to enhance the instant offense. Id.
In Landis, the defendant was charged with stalking as a Class B felony, based upon his prior conviction for that offense as a Class B misdemeanor. Landis v. State, 693 N.E.2d 570, 571-73 (Ind.Ct.App. 1998). Landis requested bifurcated proceedings of his guilt and penalty phases which the trial court denied. In agreeing with Landis that the trial court's denial of his request was error, we noted that where the State is required to prove Landis' prior stalking conviction to elevate the instant stalking offense, evidence of the prior conviction would only serve to mislead the jury and it was, therefore, necessary that a bifurcated proceeding be conducted. Id. at 572. Specifically, we observed that:
Our supreme court granted transfer in Landis and affirmed the portion of this court's determination that Landis was entitled to a bifurcated trial where the State sought an enhanced penalty based upon the prior stalking conviction. Landis, 704 N.E.2d at 113.
Unlike the circumstances presented in Landis, we note that Nasser made no request for a bifurcated proceeding. Moreover, the violation for which Nasser was charged was not a criminal offense. Specifically, IND. CODE § 35-41-1-19 defines an "offense" as "a crime" and "does not include an infraction." (Emphasis supplied); see also State v. Hurst, 688 N.E.2d 402, 405 (Ind.1997) ().
As set forth above, Nasser's case involves the enhancement of an infraction to a misdemeanor which was based upon the trial court's adjudication of a prior infraction. Inasmuch as the evidence at trial was offered to enhance the infraction to a Class A misdemeanor, and Nasser did not object to the nature of the proceedings, there is no merit to Nasser's contention under these circumstances that he was entitled to a bifurcated proceeding. Thus, Nasser may not succeed on his claim that his due process rights were violated.2
Nasser next asserts that his conviction must be vacated because the evidence presented at trial was conflicting as to whether he was actually suspended on June 26, 1998. Specifically, Nasser points out that one of the BMV records shows a suspension date of February 16, 1998, and another record shows a date of February 10, 1998 as the time of suspension. Thus, Nasser maintains that such an "obvious error" compels this court to vacate the conviction. Appellant's brief at 8. Additionally, Nasser complains that the State failed to prove the "mens rea" element of the offense because "only the computer generated BMV driving record which alleged suspension notices had been mailed was placed into evidence." Appellant's brief at 9. Thus, Nasser contends that the State should have introduced the actual suspension notices into evidence in order to show whether the suspension notice was mailed and whether proper notice was given.
To resolve Nasser's sufficiency claim, we note that to convict a defendant of driving while suspended as a Class A misdemeanor, the State must show that: (1) the defendant was driving; (2) while his license was suspended; (3) that he "knew or should have known" of the suspension; and (4) less than ten years had elapsed between the date a judgment was entered against the defendant for a prior unrelated driving while suspended infraction violation and the date of the current violation. I.C. § 9-24-18-5; see also Stewart v. State, 721 N.E.2d 876, 879 (Ind.1999). A defendant's knowledge of his license suspension can be inferred from the computer printout of the driving record showing that a suspension of notice was sent to him. Cruite v. State, 641 N.E.2d 1264, 1266 (Ind.1994); Loe v. State, 654 N.E.2d 1157, 1159 (Ind.Ct.App.1995).
When reviewing sufficiency of the evidence claims, this court neither...
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