February 20, 2014
FABRIANNE CLOUD, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable John Chavis, Judge. Cause No. 49F15-1211-FD-78136.
ATTORNEY FOR APPELLANT: VALERIE K. BOOTS, Marion County Public Defender Agency, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, MONIKA PREKOPA TALBOT, Deputy Attorney General, Indianapolis, Indiana.
BRADFORD, Judge. MATHIAS, J., and PYLE, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
When Appellant-Defendant Fabrianne Cloud was pulled
over because of concern that she had been involved in a traffic accident, it was
discovered that her driver's license had been suspended by virtue of her status
as a habitual traffic violator ("HTV"). Cloud appeals from her conviction for
Class D felony operation a vehicle while suspended as an HTV, contending that
the State produced insufficient evidence that she was aware of her suspension.
We affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
On January 5, 2010, Cloud reported her address to the
Bureau of Motor Vehicles ("BMV") as 610 Hanley Street in Plainfield. On April 9,
2010, Cloud began serving a sentence in Liberty Hall Jail. On September 17,
2010, the BMV sent a notice to Cloud's Plainfield address informing her that her
license would be suspended for ten years beginning on October 22, 2010, due to
her three prior convictions for operating while intoxicated. On October 15,
2010, Cloud was released from Liberty Hall.
On November 15, 2012, Cloud was stopped in Marion
County for suspicion of being involved in an accident and leaving the scene. The
officer who stopped Cloud found that the BMV had suspended her license. Also on
November 15, 2012, the State charged Cloud with Class D felony operating a
vehicle while suspended as an HTV. On July 16, 2013, the trial court found Cloud
guilty as charged. On August 6, 2013, the trial court sentenced Cloud to 1095
days of incarceration, with 545 days to be served on in-home incarceration and
the balance suspended to probation.
DISCUSSION AND DECISION
Whether the State Produced Sufficient Evidence to
Sustain Cloud's Conviction
When reviewing the sufficiency of the evidence to
support a conviction, we consider only the probative evidence and reasonable
inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146
(Ind. 2007). It is the factfinder's role to assess witness credibility and weigh
the evidence to determine whether it is sufficient to support a conviction. Id.
We consider conflicting evidence in the light most favorable to the trial
court's ruling. Id. We affirm the conviction unless no reasonable
fact-finder could find that the elements of the crime were proven beyond a
reasonable doubt. Id.
Indiana Code section 9-30-10-16 provides, in relevant
part, as follows:
(a) A person who operates a motor vehicle:
(1) while the person's driving privileges are validly
suspended under this chapter or IC 9-12-2 (repealed July 1, 1991) and the person
knows that the person's driving privileges are suspended
commits a Class D felony.
(b) Service by the bureau of notice of the suspension or restriction of a
person's driving privileges under subsection (a)(1) or (a)(2):
(1) in compliance with section 5 of this chapter; and
(2) by first class mail to the person at the last address shown for the
person in the bureau's records;
establishes a rebuttable presumption that the person knows that the person's
driving privileges are suspended or restricted.
Cloud contends only that the State failed to
establish that she knew that her driving privileges were suspended on November
15, 2012. The State, by sending notice via first-class mail to Cloud's last
known address, established the rebuttable presumption that she knew of her
suspension. The burden then shifted to Cloud to overcome this presumption of
knowledge, and she points to evidence of her incarceration at the time the
notice was mailed to support her argument that she did so. Cloud, however, also
testified that others would deliver her mail to her when she was incarcerated.
Consequently, Cloud's argument amounts to nothing more than an invitation to
reweigh the evidence, which we will not do. Although Cloud testified that she
was unaware that her license was suspended when she was stopped on November 15,
2012, the trial court was under no obligation to credit this testimony, and it
did not. The State produced sufficient evidence to sustain Cloud's conviction
for operating while suspended as an HTV. See State v. Jackson, 889 N.E.2d
819, 822 (Ind. 2008) ("[I]n the absence of direct proof of a driver's lack of
knowledge, the statute directs that the State may presumptively satisfy the
knowledge element by establishing proper notice to a driver's last address in
the Bureau's records, subject to rebuttal by the accused driver.").
The judgment of the trial court is affirmed.
MATHIAS, J., and PYLE,