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03/07/88 MARLO STANEK v. STATE INDIANA

Filed: March 7, 1988.

MARLO STANEK, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW).



Appeal from the St. Joseph Superior Court, The Honorable William H. Albright, Cause No. 2CR-44-385-165

Staton, J., Garrard, P. J., Concurs IN Part And Concurs IN Result IN Part With Opinion. Miller, J., Concurs.

Author: Staton

STATON, J.

Marlo Stanek was convicted by a jury of operating a motor vehicle while suspended as an habitual violator of traffic laws.[Footnote 1] His two-year sentence was suspended, and he was placed on probation for two years.[Footnote 2]

On appeal, Stanek raises three issues. Restated, they are:

1. Whether a police officer's testimony that the defendant had been a neighbor of his for approximately eighteen years implied that the defendant had a history of criminal activity and, if so, whether the trial court erred by admitting that testimony.

2. Whether the trial court erred by refusing to give the defendant's tendered instruction on the defense of Mistake of Fact.

3. Whether the evidence presented at trial is insufficient to support his conviction.

Affirmed.

On October 10, 1986, Stanek was driving his 1972 AMC Javelin on Olive Street in South Bend, Indiana. While driving on Olive Street, he was stopped by Corporal Thomas J. Leszcz of the South Bend Police Department. Corporal Leszcz had seen Stanek make a right turn from an inside lane without stopping for a red light, and he had noticed that a rear tail light was out.

Corporal Leszcz asked to see Stanek's driver's license; Stanek gave him a Michigan temporary permit which had been issued in January 1986 and had expired sixty days later. Corporal Leszcz ran a computer check and learned that Stanek had been issued a still valid Michigan driver's license. Stanek told the officer that his wallet and Michigan driver's license had been stolen.

A further check by Corporal Leszcz showed that the Indiana Bureau of Motor Vehicles (BMV) had determined Stanek to be an habitual violator of traffic laws under I.C. 1984, 9-12-2-1 (Burns Code Ed., 1987 Repl.)[Footnote 3] and that Stanek's Indiana driver's license had been suspended from July 14, 1986, until July 14, 1996.

I.

Officer's Testimony

During the State's direct examination of Corporal Leszcz, he testified as follows:

Q. Now prior to this occasion had you known Mr. Stanek?

A. Yes sir.

Q. How was that?

[Defense objects. Overruled.]

Q. Officer Leszcz, let me re-ask the question. When you approached [sic] you said you knew Mr. Stanek before this occasion?

A. Yes sir.

Q. And that was because he grew up in ...


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