State v. Keihn, No. 18S02-8908-CR-616

Docket NºNo. 18S02-8908-CR-616
Citation542 N.E.2d 963
Case DateAugust 10, 1989
CourtSupreme Court of Indiana

Page 963

542 N.E.2d 963
STATE of Indiana, Appellant (Plaintiff Below),
v.
Raymond P. KEIHN, Appellee (Defendant Below).
No. 18S02-8908-CR-616.
Supreme Court of Indiana.
Aug. 10, 1989.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellant.

Alan K. Wilson, Muncie, for appellee.

DICKSON, Justice.

Following a bench trial acquittal of the defendant on the charge of driving while license suspended, the State sought appellate review on a reserved question of law pursuant to Ind.Code Sec. 35-38-4-2(4). As presented in the State's brief, the issue is whether Ind.Code Sec. 9-1-4-52 (driving while suspended) requires the State to prove that a defendant had actual knowledge that his license was suspended.

A majority of the Court of Appeals for the First District reasoned that the statute defining the offense does not set out knowledge or notice of suspension as an element, and the offense, being malum prohibitum,

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does not require a culpable mental state or mens rea. State v. Keihn (1988), Ind.App., 530 N.E.2d 747.

The defendant now asks this Court to address the conflict between Keihn and Burdine v. State (1987), Ind.App., 510 N.E.2d 1385, which requires the State in a prosecution for driving after having been adjudged a habitual traffic offender to prove that "the defendant knew or reasonably could have known that his driving privileges had been suspended as a result of having been determined to be a habitual traffic offender" where the defendant contends that he did not know of his status. Id. at 1389. We grant transfer to resolve the conflict and to address guidelines for construing criminal statutes that do not designate a culpable mental state element.

The crime of driving while license suspended appears in the motor vehicle title of the Indiana Code. Ind.Code Sec. 9-1-4-52(a) provides:

A person may not operate a motor vehicle upon the public highways while his driving privilege, license, or permit is suspended or revoked. A person who violates this subsection commits a Class A misdemeanor.

In three earlier cases on driving while license suspended, the Court of Appeals discussed the role of notice and the defendant's knowledge of the suspension of his license. Grogan v. State (1985), Ind.App., 482 N.E.2d 300; Sewell v. State (1983), Ind.App., 452 N.E.2d 1018; Roberts v. State (1979), 182 Ind.App. 430, 395 N.E.2d 802. Construing an earlier version of the statute, the Roberts court held that the defendant could not complain about the non-receipt of notice where his failure to provide a correct address on his license "disabled" the Bureau of Motor Vehicles from sending proper notice. 182 Ind.App. at 431, 395 N.E.2d at 803 (noting that under Ind.Code Sec. 9-1-4-36 drivers must notify the BMV of address changes or corrections; violation is a class C infraction, Ind.Code Sec. 9-1-4-53(c)). The court also stated that proof of the defendant's intent was unnecessary. Id. Although reading no culpable mental state element into the offense, the court's discussion of notice implied that non-receipt of notice not due to the defendant's fault may constitute a defense to driving while license suspended.

The Sewell court reasoned that the offense of driving while license suspended was malum prohibitum, making the defendant's mental state irrelevant. 452 N.E.2d at 1020. A malum prohibitum offense is an act or omission that is made criminal by statute but that is not criminal or wrong in itself. Black's Law Dictionary 861-62 (5th ed. 1979). The court viewed the discussion of notice in Roberts as dicta. 452 N.E.2d at 1020. Similarly, the Court of Appeals in Grogan concluded that "[n]either criminal intent to violate the law nor knowledge by the defendant of the suspension of his license is an element of the crime." 482 N.E.2d at 303. The majority in Keihn followed the approach of Sewell and Grogan in rejecting notice or the defendant's knowledge of the suspension of his license as an element of driving while license suspended under section 52. 1

The defendant urges this Court to apply the rationale of Burdine and require the State to prove notice and the defendant's knowledge of his license suspension to sustain a conviction under Sec. 9-1-4-52. In Burdine, the Court of Appeals reversed a conviction for driving after having been

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adjudged a habitual traffic offender, Ind.Code Sec. 9-12-3-1, because of insufficient evidence. 510 N.E.2d 1385. Like Sec. 9-1-4-52, Ind.Code Sec. 9-12-3-1 does not expressly provide a culpable mental state as an element of the offense. The Burdine court began by noting that 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." Id. at 1388. The court also noted that, under the initial habitual traffic offender statutes, Ind.Code Ann. Secs. 9-4-13-1 to -18 (Burns 1973), the process of determining the status incorporated the defendant's knowledge of his being adjudged a habitual traffic offender. Id. In 1983, the legislature amended the statutes and shifted the determination of the status from the courts to the Bureau of Motor Vehicles. Ind.Code Ann. Sec. 9-4-13-4 (Burns Repl.1983). The statutes were amended again and recodified. Ind.Code Ann. Secs. 9-12-1-1 to -3-3 (Burns Supp.1984). The Burdine court concluded that the amendments did not expressly contradict the original incorporation of the defendant's knowledge into the adjudication process. 510 N.E.2d at 1389. In resolving the ambiguity of whether the amended statute dispensed with the knowledge aspect, the court cited the rules that a culpable mental state or mens rea is generally required in criminal offenses and that ambiguous criminal statutes must be resolved in favor of the defendant. Id. In view of the defendant's contention that he did not know that he had been adjudged a habitual traffic offender and the State's failure to present any evidence that notice of the adjudication had been mailed to the defendant, the Burdine court required a showing that "the defendant knew or reasonably could have known that his driving privileges had been suspended as a result of having been determined to be a habitual traffic offender." Id. The same conclusion was reached in Stanek v. State (1988), Ind.App., 519 N.E.2d 1263, and Hunter v. State (1987), Ind.App., 516 N.E.2d 73.

The State contends that driving while license suspended is a strict liability offense and thus does not require proof of a culpable mental state. Keihn presents a constitutional argument that "knowledge of the suspension be an element that the state must prove before obtaining a conviction for driving while suspended."

The broad question before us is that of interpreting and applying a statute that defines a criminal offense without specifying any culpable mental state as an element. Our goal in construing criminal statutes is generally to determine and effect the legislative intent. Walton v. State (1980), 272 Ind. 398, 398 N.E.2d 667. However, this Court strictly construes penal statutes against the state to avoid enlarging them by intendment or implication beyond the fair meaning of the language used. State v. McGraw (1985), Ind., 480 N.E.2d 552; Pennington v. State (1981), Ind., 426 N.E.2d 408.

Prior to the revision of our criminal code in 1976, the omission of such words as "knowingly" and "intentionally" from a statute defining a crime had been held to be not conclusive on whether guilty knowledge is an essential element of such crime. Gregory v. State (1973), 259 Ind. 652, 655, 291 N.E.2d 67, 68. In considering whether "intent to deprive" was an element of robbery although the statute did not mention it as such, the Gregory court stated:

That which is merely malum prohibitum, i.e. an offense only because prohibited by statute, does not require intent and knowledge, unless specified by the prohibiting statute. However, that which is malum in se, i.e. inherently and naturally evil as adjudged by the senses of a civilized society, is wrong and criminal by reason of such knowledge or intent....

Id. The Court concluded that the robbery statute required "criminal intent and knowledge" because it adopted the traditional crime of robbery, which required guilty intent or knowledge. Id. at 655, 291 N.E.2d at 69.

In revising the criminal code, our legislature adopted in part the Model Penal Code's hierarchy of culpable mental states. Ind.Code Sec. 35-41-2-2 ("intentionally," "knowingly," and "recklessly"). See Model Penal Code Sec. 2.02 (1962). 2 By redefining

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each offense with specific reference to a requisite mental state, the present criminal code generally obviates the need for determining legislative intent as to whether a culpable mental state is required.

Notable exceptions, however, remain. For example, the child molesting statute, Ind.Code Sec. 35-42-4-3(a), does not expressly prescribe culpability. In Newton v. State (1983), Ind.App., 456 N.E.2d 736, and Mullins v. State (1985), Ind.App., 486 N.E.2d 623, the Court of Appeals found an implied element of mens rea to be required by viewing the statute as adoptive of the common law offense of sodomy. In Snider v. State (1984), Ind., 468 N.E.2d 1037, the lack of a mens rea element in the instructions was held not to constitute fundamental error. Criminal offenses defined in statutes apart from the revised criminal code have likewise...

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47 practice notes
  • State v. McCraine, No. 30592.
    • United States
    • Supreme Court of West Virginia
    • May 16, 2003
    ...read into the statute. Jeffcoat v. State, 639 P.2d 308 (Alaska Ct.App.1982); Jolly v. People, 742 P.2d 891 (Colo.1987); State v. Keihn, 542 N.E.2d 963 (Ind.1989); State v. McCallum, 321 Md. 451, 583 A.2d 250 (1991); Zamarripa v. First Judicial District Court, 103 Nev. 638, 747 P.2d 1386 (19......
  • State v. Swain, No. 15744
    • United States
    • Supreme Court of Connecticut
    • July 21, 1998
    ...is only prima facie proof and does not create conclusive presumption; state must prove knowledge of license revocation); State v. Keihn, 542 N.E.2d 963, 968 (Ind.1989) (state must prove defendant's knowledge of license suspension in prosecution for driving with suspended license even though......
  • State v. McCallum, No. 4
    • United States
    • Court of Appeals of Maryland
    • January 2, 1991
    ...which prohibits driving while suspended for failure to appear in court or pay fines. 3 Grogan has since been overruled by State v. Keihn, 542 N.E.2d 963 (Ind.1989); thus Indiana joins the ranks of states requiring mens rea for driving while suspended. 1 Md.Code (1984, 1987 Repl.Vol., 1990 C......
  • Wickizer v. State, No. 75SO3-9312-CR-1432
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1993
    ...of a defendant is an element to be proven by the prosecution in virtually every criminal case, see State v. Keihn (1989), Ind., 542 N.E.2d 963, properly introduced evidence of intent typically is found to be relevant and of probative value and thus is admissible at trial. See Robert Miller,......
  • Request a trial to view additional results
47 cases
  • State v. McCraine, No. 30592.
    • United States
    • Supreme Court of West Virginia
    • May 16, 2003
    ...read into the statute. Jeffcoat v. State, 639 P.2d 308 (Alaska Ct.App.1982); Jolly v. People, 742 P.2d 891 (Colo.1987); State v. Keihn, 542 N.E.2d 963 (Ind.1989); State v. McCallum, 321 Md. 451, 583 A.2d 250 (1991); Zamarripa v. First Judicial District Court, 103 Nev. 638, 747 P.2d 1386 (19......
  • State v. Swain, No. 15744
    • United States
    • Supreme Court of Connecticut
    • July 21, 1998
    ...is only prima facie proof and does not create conclusive presumption; state must prove knowledge of license revocation); State v. Keihn, 542 N.E.2d 963, 968 (Ind.1989) (state must prove defendant's knowledge of license suspension in prosecution for driving with suspended license even though......
  • State v. McCallum, No. 4
    • United States
    • Court of Appeals of Maryland
    • January 2, 1991
    ...which prohibits driving while suspended for failure to appear in court or pay fines. 3 Grogan has since been overruled by State v. Keihn, 542 N.E.2d 963 (Ind.1989); thus Indiana joins the ranks of states requiring mens rea for driving while suspended. 1 Md.Code (1984, 1987 Repl.Vol., 1990 C......
  • Wickizer v. State, No. 75SO3-9312-CR-1432
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1993
    ...of a defendant is an element to be proven by the prosecution in virtually every criminal case, see State v. Keihn (1989), Ind., 542 N.E.2d 963, properly introduced evidence of intent typically is found to be relevant and of probative value and thus is admissible at trial. See Robert Miller,......
  • Request a trial to view additional results

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