Tyson Daishan Lamonte King v. State of Indiana (mem. dec.)

T
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                  FILED
regarded as precedent or cited before any                                          Jan 14 2021, 8:31 am

court except for the purpose of establishing                                           CLERK
                                                                                   Indiana Supreme Court
the defense of res judicata, collateral                                               Court of Appeals
                                                                                        and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                      Theodore E. Rokita
Law Office of Christopher G. Walter,                     Attorney General of Indiana
P.C.
Nappanee, Indiana                                        Matthew J. Goldsmith
                                                         Angela N. Sanchez
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyson Daishan Lamonte King,                              January 14, 2021
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-1605
        v.                                               Appeal from the
                                                         Marshall Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Dean A. Colvin, Judge
                                                         Trial Court Cause No.
                                                         50D02-1909-CM-961



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021         Page 1 of 12
[1]   Tyson Daishan Lamonte King (“King”) appeals his conviction for driving while

      suspended1 as a Class A misdemeanor. King raises one issue for our review:

      whether the evidence was sufficient to support his conviction.

[2]   We affirm.


                                   Facts and Procedural History
[3]   On September 10, 2019, Plymouth Police Department Officer David Finn

      (“Officer Finn”) ran a random license plate check on a vehicle while conducting

      routine traffic control. Tr. Vol. 2 at 5-7. Officer Finn saw that the vehicle’s

      license plate check showed that the vehicle’s registered owner had a suspended

      license.

Id. at 7.

Officer Finn initiated a traffic stop, determined that the driver

      was King and informed King that he was stopped because his license was

      suspended.

Id. at 7-8.

King told Officer Finn that “his license was suspended

      because of child support issues” but that King had been “advised that his license

      should be valid.”

Id. at 8.

Officer Finn had dispatch confirm that King’s

      license was suspended, and King also checked the status of his license on the

      Indiana Bureau of Motor Vehicles (“BMV”) website from his phone while

      Officer Finn was contacting dispatch.

Id. King confirmed that

the BMV’s

      website showed that his license was suspended, and Officer Finn issued King a




      1
      See Ind. Code § 9-24-19-2.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021   Page 2 of 12
      ticket and a summons to appear for driving while suspended.

Id. at 8-9;

      Appellant’s App. Vol. 2 at 13.


[4]   On September 13, 2019, the State charged King with driving while suspended

      as a Class A Misdemeanor. Appellant’s App. Vol. II at 3-4, 13, 15. On August 5,

      2020, the trial court held a bench trial.

Id. at 7.

At the bench trial, Officer Finn

      identified King in open court. Tr. Vol. 2 at 7-8, 10-11. Officer Finn was cross-

      examined and indicated that King did not believe his license was suspended

      before King independently confirmed on the BMV website that his license was

      suspended.

Id. at 9.

Officer Finn also stated that King told him he “had spoken

      with his lawyer and his lawyer had basically told him that he was allowed to

      drive.”

Id. at 9-10.

The prosecutor sought to admit a certified copy of King’s

      driving record from the BMV, which the trial court admitted without any

      objection from King.

Id. at 12.

King’s driving record showed that the notice of

      his license suspension for delinquent child support was mailed to him on

      August 6, 2019, and his license was listed as suspended from September 5, 2019

      through September 25, 2019. Ex. Vol. 1 at 5. King’s driving record also showed

      that he was mailed two previous notices that his license was suspended for

      delinquent child support; one notice of license suspension was mailed on July

      31, 20182 and the other notice of license suspension was mailed on November

      6, 2018.

Id. 2

        We note that this court reversed King’s conviction for Class A misdemeanor driving while suspended with
      respect to the July 31, 2018 notice of license suspension for which his license was suspended effective August

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021                  Page 3 of 12
[5]   King testified that Officer Finn pulled him over on September 10, 2019, and

      King indicated that he believed his driver’s license should not have been

      suspended. Tr. Vol. 2 at 13. King stated that “if I knew I was suspended, I

      never would’ve checked my phone” for his driver’s license because he believed

      his driver’s license was “still valid” and that he was “shocked” to see that his

      driver’s license was suspended because he had expected the BMV website to

      show his driver’s license as valid.

Id. at 14.

King’s counsel sought to admit

      three exhibits related to child support from King’s divorce case in the Marshall

      Circuit Court under Cause Number 50C01-1105-DR-103 (“Cause No. 103”),

      and the trial court admitted the exhibits over the prosecutor’s objection. 3

Id. at 15-16;

Ex. Vol. 1 at 11-15. King testified that after he was pulled over on

      September 10, 2019, he went to a September 25, 2019 hearing regarding the

      child support issues in Cause No. 103. Tr. Vol. 2 at 16-17. On September 25,

      2019, the trial court issued an order granting the motion of King and his ex-wife

      to offset child support arrears and authorized the clerk of the circuit court to

      release the judgment against King for child support in Cause No. 103. Ex. Vol.

      1 at 14-15. On cross-examination, King acknowledged that when he was




      30, 2018 and expired on October 24, 2018. King v. State, 

153 N.E.3d 324

, 325-26 (Ind. Ct. App. 2020), trans.
      denied. In that appeal, we addressed whether King’s suspension had already expired when he was pulled over
      and held that “King’s driver’s license was not suspended when he was pulled over at approximately 11:30
      a.m. on October 24, 2018, because his suspension expired at 12:00 a.m. on October 24, 2018.”

Id. at 330. 3

        King’s first exhibit, a handwritten CCS minute entry from Cause No. 103 dated May 11, 2018, was an
      agreement between King and his ex-wife regarding child support. Ex. Vol. 1 at 11. His second exhibit was an
      agreed motion to offset arrears related to child support in Cause No. 103 which was filed with the trial court
      on September 25, 2019.

Id. at 12-13.

His third exhibit was a release of lien and satisfaction of judgment and
      the trial court’s order granting the agreed motion to offset arrears in Cause No. 103 dated September 25,
      2019.

Id. at 14-15

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021                  Page 4 of 12
      stopped on September 10, 2019, the BMV showed his driver’s license as

      suspended.

Id. at 18. [6]

  Cynthia Sue Pucciarelli (“Pucciarelli”), a Marshall County child support case

      worker who was assigned to King’s case, also testified.

Id. at 21.

She indicated

      that she did not receive the order offsetting child support arrears in Cause No.

      103 until after the trial court entered it on September 25, 2019.

Id. at 23.

      Pucciarelli also stated that King’s license was suspended because of unpaid

      child support.

Id. at 23-24.

On cross-examination, Pucciarelli engaged in the

      following exchange with King’s counsel:

              Q The 2018 -- I want to say that was May -- this -- he was in
              arrears, Mr. King, correct?


              A Uh--huh.


              Q And at that point, he was not -- nothing was filed against Mr.
              King for suspending his license, correct? From Marshall County
              anyhow?


              A I cannot give you the exact day, but I do know that there were
              issues and I actually had to reinstate his license back in 2018.


              Q Okay.


              A And I put in a payment plan at that time.


              Q Okay. And I noticed the suspension that the BMV has in the
              BMV record was, he was not suspended until September 5th,
              2019.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021   Page 5 of 12
              A He put in a payment plan with me December of 2018. He did
              not pay --


              Q For how much?


              A $400 a month, on the arrears. He did not pay; thus, he was
              automatically suspended again, for our suspension in April 2019.


              Q So if he was . . . automatically suspended in 2019, in April,
              that would have came [sic] from your office?


              A It was due to the fact that I put a payment plan into place,
              $100 a month to pay on the arrears. He did not pay it, so the --
              so I guess the state would automatically suspended [sic] him,
              because he did not --


              Q So he could have a suspension staring April 2019 for failure to
              pay child support, in the Marshall County case?


              A Again. Yeah.

Id. at 25-26. [7]

  The trial court also engaged in the following exchange with Pucciarelli:

              THE COURT: Before I have you step down, let me make sure
              that I understand that the suspension that was in place by the
              driver’s license record that the State’s offered showing he was
              suspended on September 5th and that was the action of . . . the
              officer in this particular case, was one that was initiated on April
              of 2019?


              THE WITNESS: Correct.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021   Page 6 of 12
        THE COURT: And that was for nonpayment of an agreed
        disposition of the past due child support, correct?


        THE WITNESS: Correct.


        THE COURT: Okay. Is there any time between that date, that
        was issued in April of 19 in which he had become -- paid his
        child support in full, to the extent that the suspension should
        have been lifted?


        THE WITNESS: No. Because there was no -- his arrearage was
        still there.


        THE COURT: The agree -- it was still under the April
        agreement but he had not completed paying the arrearage in his
        child support?


        THE WITNESS: Correct.


        THE COURT: So the bureau would still consider that as being
        non-compliant with the order; therefore, not reinstating him?
        The agreement, I shouldn’t say order, because it was an
        agreement.


        THE WITNESS: Okay. He had a suspension. He did not pay
        on his arrears, so it was not reinstated.


        THE COURT: Okay. All right.

Id. at 28-29.



Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021   Page 7 of 12
[8]    At the conclusion of the bench trial, the trial court found King guilty as charged

       and sentenced him that same day to 365 days executed in the Marshall County

       Jail and suspended the entire 365 days to probation. Tr. Vol. 2 at 36; Appellant’s

       App. Vol. 2 at 43. King now appeals.


                                      Discussion and Decision
[9]    King argues that the State presented insufficient evidence to convict him of

       driving while suspended as a Class A misdemeanor. When we review the

       sufficiency of the evidence, we do not reweigh the evidence or judge the

       credibility of the witnesses. McHenry v. State, 

820 N.E.2d 124

, 126 (Ind. 2005).

       Rather, we will affirm a conviction if we find that any reasonable factfinder

       could find a defendant guilty beyond a reasonable doubt when considering all

       the facts and inferences that favor the conviction. Bailey v. State, 

907 N.E.2d 1003

, 1005 (Ind. 2009). The evidence need not exclude every reasonable

       hypothesis of innocence, but it must support a reasonable inference of guilt to

       support the verdict. Drane v. State, 

867 N.E.2d 144

, 147 (Ind. 2007). “[I]t is

       precisely within the domain of the trier of fact to sift through conflicting

       accounts of events. Not only must the fact-finder determine whom to believe,

       but also what portions of conflicting testimony to believe.” Atwood v. State, 

905 N.E.2d 479

, 484 (Ind. Ct. App. 2009) (quoting In re J.L.T., 

712 N.E.2d 7

, 11

       (Ind. Ct. App. 1999), trans. denied.), trans. denied.


[10]   King was convicted under Indiana Code section 9-24-19-2, which provides that,

       an individual who:


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021   Page 8 of 12
               (1) knows that the individual’s driving privileges, driver’s license,
               or permit is suspended or revoked; and (2) operates a motor
               vehicle upon a highway less than ten (10) years after the date on
               which judgment was entered against the individual for a prior
               unrelated violation of section 1 of this chapter . . . commits a
               Class A misdemeanor.


[11]   King challenges only whether the State presented sufficient evidence that he

       had knowledge that his license was suspended. King appears to argue that he

       successfully rebutted the presumption that he knew that his license was

       suspended, contending that the information in his certified driving record is

       insufficient to establish his knowledge that his driver’s license was suspended.

       He asserts that Pucciarelli’s testimony did not establish that his license was ever

       suspended in April 2019, and that without corroborating testimony King’s

       certified driving record, standing alone, does not establish that he had

       knowledge of the suspension.


[12]   Indiana Code section 9-24-19-8 establishes a rebuttable presumption of

       knowledge of a license suspension, and it provides:


               Service by the bureau of motor vehicles of a notice or an order
               suspending or revoking an individual’s driving privileges by
               mailing the notice or order by first class mail to the individual at
               the last address shown for the individual in the records of the
               bureau establishes a rebuttable presumption that the individual
               knows that the individual’s driving privileges are suspended or
               revoked, as applicable.


       In Spivey v. State, 

922 N.E.2d 91

, 93-94 (Ind. Ct. App. 2010), this court

       explained that a driving record indicating the mail date of a notice of

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021   Page 9 of 12
       suspension is sufficient to establish the rebuttable presumption the defendant

       knew of his license suspension, as “the trier of fact may reasonably infer that

       the notice was sent via first-class mail” because “it is common knowledge that

       the general method of mailing a letter is through the United States Postal

       Service via first-class mail.” We held that the evidence need not specifically

       indicate a notice of suspension was sent by first class mail.

Id. [13]

  Here, King’s certified driving record shows that a notice of suspension was

       mailed to King on August 6, 2019 and that his driver’s license was suspended

       from September 5, 2019 through September 25, 2019. Ex. Vol. 1 at 5. On

       appeal, King does not specifically argue that he never received the notice that

       was sent on August 6, 2019. At trial, Officer Finn testified that he pulled King

       over on September 10, 2019 because King’s license was suspended and that

       King told Officer Finn “his license was suspended because of child support

       issues” but that King said he had been “advised that his license should be

       valid.” Tr. Vol. 2 at 8. Officer Finn confirmed through dispatch that King’s

       license was suspended, and King himself independently confirmed that the

       BMV’s website showed that his license was suspended.

Id. at 8-9.

While King

       testified that he was “shocked” to see that his license was suspended when he

       was pulled over on September 10, 2019, because he believed his May 11, 2018

       agreement with his ex-wife regarding child support addressed his child support

       arrearage under Cause No. 103, it was not until the trial court’s September 25,

       2019 order in Cause No. 103 offsetting King’s child support arrearage was

       issued, that the issue of his arrearage was resolved.

Id. at 14, 16-20;

Ex. Vol. 1 at


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021   Page 10 of 12
       11-15. Before King was stopped on September 10, 2019 for a suspended

       license, King’s driving record also showed that he was mailed two notices that

       his license was suspended for delinquent child support after the May 11, 2018

       agreement in Cause No. 103 with his ex-wife; one notice of license suspension

       was mailed on July 31, 2018 and the other notice of license suspension was

       mailed on November 6, 2018. Ex. Vol. 1 at 5, 11. The trier of fact could have

       reasonably concluded that King did not rebut the presumption that he had

       knowledge his license was suspended when he was pulled over on September

       10, 2019.

[14]   As to King’s contention that Pucciarelli’s testimony shows that he was unaware

       of his license suspension, we acknowledge that Pucciarelli’s trial testimony does

       appear to confuse dates and the reasons for King’s numerous license

       suspensions that had occurred since May 2018. See Tr. Vol. 2 at 21-29.

       Pucciarelli testified that King’s license was suspended in April 2019 because he

       failed to remain current with a December 2018 child support payment plan.

Id. at 26.

We note that while King’s driving record shows a license suspension for

       failure to appear for a seatbelt violation in Fulton County, which resulted in a

       license suspension from April 12, 2019 through April 26, 2019, it does not show

       a license suspension for failure to pay child support in April 2019. Ex. Vol. 1 at

       5. King overlooks that Pucciarelli also testified that “[h]e had a suspension. He

       did not pay on his arrears, so [his driver’s license] was not reinstated.” Tr. Vol.

       2 at 29. King did not rebut the presumption that he knew his license was

       suspended, and his arguments to the contrary with respect to Pucciarelli’s


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021   Page 11 of 12
       testimony are a request for us to reweigh her testimony and to reassess her

       credibility, which we cannot do. See 

McHenry, 820 N.E.2d at 126

. The

       evidence presented at trial was sufficient to show that King knew his license

       was suspended.

[15]   Affirmed.

       Bradford, C.J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-1605 | January 14, 2021   Page 12 of 12

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