Wooden v. State

• Citation: 757 N.E.2d 212
• Decision Date: 30 October 2001
• Docket Number: No. 49A04-0104-CR-157.,49A04-0104-CR-157.
• Parties: Keith WOODEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

757 N.E.2d 212

Keith WOODEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-0104-CR-157.

Court of Appeals of Indiana.

October 30, 2001.

Victoria Ursulskis, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Keith Wooden was found guilty by a jury and convicted of operating a motor vehicle while privileges are forfeited for life, a Class C felony. He was sentenced to five years at the Indiana Department of Correction. He was also ordered to pay $125 in costs and a $200 Public Defender reimbursement fee. Those amounts were reduced to a monetary judgment, and the court ordered that he not be incarcerated for failure to pay. Wooden appeals his conviction and sentence. We affirm in part, and remand in part.

Issues

Wooden raises two issues for our review, which we restate as follows:

1. Whether the trial court properly instructed the jury regarding the elements of the offense; and

2. Whether the trial court properly imposed costs and a reimbursement fee.

Facts and Procedural History

An Indianapolis police officer stopped a vehicle driven by Wooden when Wooden failed to stop at a stop sign. Wooden told the officer that he did not have a drivers license, and based upon the identifying information Wooden provided, the officer determined that Wooden was an habitual traffic violator and had his license forfeited for life. Wooden was charged with operating a motor vehicle while his privileges are forfeited for life.

At Wooden's jury trial, the State presented evidence that a Keith L. Wooden had entered a plea of guilty to operating a motor vehicle while an habitual traffic violator in November of 1990, and had his driving privileges forfeited for life as a result. A fingerprint identification expert testified that Wooden was the same "Keith L. Wooden" who had entered the November 1990 plea. The jury returned a verdict of guilty. Additional facts will be provided as necessary.

Discussion and Decision

I. Jury Instructions

A. Standard of Review

The well-settled standard by which we review challenges to jury instructions affords great deference to the trial court. McCann v. State, 742 N.E.2d 998, 1004 (Ind.Ct.App.2001),summarily aff'd. on this ground, 749 N.E.2d 1116 (Ind.2001). Accordingly, the trial court's ruling will not be reversed unless the instructional error is such that, taken as a whole, the charge to the jury misstates the law or otherwise misleads the jury. Id. Jury instructions must be considered as a whole; if they state the law fully and correctly when read in conjunction with one another, they are not erroneous. Jackson v. State, 657 N.E.2d 131, 134 (Ind. Ct.App.1995),trans. denied.

B. Elements Instruction

The trial court gave the following preliminary instruction to the jury regarding the elements of the offense with which Wooden was charged:

The Indiana statutes defining the offense charged, including the elements contained therein, insofar as applicable, read as follows:

A person who operates a motor vehicle after the person's driving privileges are forfeited for life, commits operating a motor vehicle after license forfeited for life, a Class C felony[.]

The elements of this offense are that the defendant must be:

1. A person who

2. operates a motor vehicle

3. after the person's driving privileges are forfeited for life.

Appellant's Appendix at 54-55. Wooden claims that this instruction was erroneous in that it did not inform the jury that an additional element of the offense was that he knew or should have known that his driving privileges were forfeited.

Wooden concedes that he did not object to this instruction at trial. Ordinarily, failure to make a timely objection to an instruction waives that issue for appellate review. Lampkins v. State, 749 N.E.2d 83, 85 (Ind.Ct.App.2001), trans. denied. However, in order to avoid waiver, Wooden claims that the trial court's error constituted fundamental error. A fundamental error is a substantial, blatant violation of basic principles of due process that renders the trial unfair to the defendant. Stafford v. State, 736 N.E.2d 326, 332 (Ind. Ct.App.2000), trans. denied. Our supreme court has stressed that the fundamental error exception is "extremely narrow." Mitchell v. State, 726 N.E.2d 1228, 1236 (Ind.2000). In order to qualify as fundamental error, "an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible." Id. (quoting Willey v. State, 712 N.E.2d 434, 444-45 (Ind.1999)). Such error "must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process." Id. (quoting Wilson v. State, 514 N.E.2d 282, 284 (Ind.1987)). To justify reversal where an erroneous jury instruction was given, the error must be such that the whole charge of which it formed a part misled the jury concerning the law of the case. Stafford, 736 N.E.2d at 332.

We find no fundamental error in the trial court's instructions. Whether or not his knowledge of the forfeiture of his driving privileges is actually an element of the offense, compare Ford v. State, 711 N.E.2d 86, 88 (Ind.Ct.App.1999),

trans. denied ("In order to support a conviction for Driving While Suspended for Life, the State must prove that the defendant was driving and that the defendant's privileges had been suspended for life.") and Moore v. State, 702 N.E.2d 762, 764 (Ind.Ct.App. 1998) ("To support a conviction under this section, the State must prove that the defendant was driving and that his driving privileges had been suspended for life.") with Austin v. State, 700 N.E.2d 1191, 1192 (Ind.Ct.App.1998),

trans. denied ("To sustain a conviction under this statute, the State must prove that Austin (1) operated a motor vehicle (2) after his driving privileges were forfeited for life and (3) he knew or should have known that his driving privileges were forfeited."), the trial court's instructions did not mislead the jury concerning the law of the case. In addition to the instruction quoted above, the jury was also instructed as follows:

The Court in its preliminary instructions, has heretofore instructed you as to the issues for trial, the burden of proof, the credibility of witnesses, and the manner of weighing the evidence received, which preliminary instructions should be considered by you along with the following final instructions in arriving at your verdict in this case.

As to these instructions on the law, read to you by the court, and which you will be allowed to take to the jury room with you, it is impractical to embody all applicable law in any one instruction, so in considering any one instruction you should construe it in connection with, and in light of, every other instruction given.

* * *

A person engages in conduct "knowingly" if, when he engages in the conduct, he is aware of the conduct, he is aware of a high probability that he is doing so.

You are instructed that knowledge, which is an essential element to be proved herein, may be inferred from the facts and circumstances as shown by the evidence.

Appellant's Appendix at 63, 65. The trial court's instructions may not be a model of clarity, but they do inform the jury of the knowledge requirement. Wooden has failed to show that any error in the instructions rises to the level of fundamental error.

II. Sentencing

A. Standard of Review

Sentencing a defendant rests within the trial court's discretion and will be reversed only upon showing a manifest abuse of discretion. Jester v. State, 746 N.E.2d 437, 439 (Ind.Ct.App.2001).

B. Costs and Fees

The trial court's sentencing statement provided, in part, as follows: "The Court imposes no fine, but costs of $125 and a $200 Public Defender Reimbursement fee. Those amounts of money are reduced to a monetary judgment against [Wooden], but he will not be incarcerated for his non-failure to pay these amounts." R. 55. Wooden claims that the trial court erroneously ordered him to pay the costs and reimbursement fee without holding an indigency hearing as required by statute and erroneously ordered him to pay a Public Defender reimbursement fee in excess of the statutory limit. Wooden also claims that the trial court's record is incomplete.

1. Indigency Hearing

Indiana Code section 33-19-2-3 provides, in pertinent part, that:

When the court imposes costs, it shall conduct a hearing to determine whether the convicted person is indigent. If the person is not indigent, the court shall order the person to pay:

(1) the entire amount at the time sentence is pronounced;

(2) the entire amount at some later date; or

(3) specified parts at designated intervals.

* * *

(c) If, after a hearing under subsection (a), the court determines that a convicted person is able to pay part of the costs of representation, the court shall order the person to pay an amount of not more than the cost of the defense services rendered on behalf of the person.

Ind.Code § 33-19-2-3(a), (c). Wooden contends that because the trial court did not hold an indigency hearing as required by this section, the court erroneously ordered him to pay costs and fees. In Whitehead v. State, 511 N.E.2d 284 (Ind.1987),cert. denied, 484 U.S. 1031, 108 S.Ct. 761, 98 L.Ed.2d 773 (1988), our supreme court was confronted with the issue of whether a trial court erred in ordering the defendant to pay a fine as part of his criminal sentence. The court noted that our statutes allow a court to impose a fine or costs, but also provide that when the court imposes a fine on a defendant, it must conduct a hearing to determine if the defendant is indigent. See Ind.Code § 35-50-2-3 (defendant convicted of murder may be fined not more than $10,000); Ind.Code § 35-38-1-18(a). When a fine is imposed upon an indigent, the trial court must...