ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM E. DAILY
KAREN M. FREEMAN-WILSON
Danville, Indiana Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
KEVIN NASSER, )
vs. ) No. 84A04-9910-CR-473
STATE OF INDIANA, )
APPEAL FROM THE VIGO CIRCUIT COURT
The Honorable Barbara L. Brugnaux, Judge
Cause No. 84E05-9901-CM-00064
May 11, 2000
Appellant-defendant Kevin Nasser appeals his conviction for Driving While Suspended,
See footnote a Class A
misdemeanor. Specifically, he contends that his Due Process Rights were violated under
U.S. Const. amend. V and XIV when the trial court did not conduct
a bifurcated proceeding with respect to the offense. Nasser also maintains that
the evidence was insufficient to support the conviction and that he was improperly
The facts most favorable to the verdict reveal that on the evening of
June 26, 1998, Terre Haute Police Officer Denzil Lewis was on routine traffic
patrol when he observed a red 1988 Chevy Camaro automobile tailgating another vehicle.
Officer Lewis began following the Camaro and eventually activated his red lights.
Nasser was identified as the operator of the vehicle, whereupon Officer Lewis
conducted a drivers license computer check. After discovering that Nassers license had
been suspended for failing to maintain automobile insurance, Officer Lewis arrested Nasser for
driving with a suspended license. Nasser was charged with the offense as
a Class A misdemeanor, inasmuch as the State alleged that he had been
previously found guilty of driving while suspended on or about February 17, 1998.
During a jury trial which commenced on September 23, 1999, the State introduced
a certified copy of Nassers driving record from the Bureau of Motor Vehicles
(BMV) into evidence. That record demonstrated that Nasser had a prior violation
for driving while suspended on February 17, 1998. The record also showed
that Nassers license was suspended from March 29, 1998, to June 27, 1998,
in light of his failure to maintain automobile insurance. The BMV sent
a notice of suspension to Nasser on February 17, 1998 at his Terre
Haute address, and another one to him on March 30, 1998 at the
Following the trial, Nasser was found guilty as charged. Thereafter, the trial
court ordered Nasser to serve a one-year executed term, which was ordered to
run consecutive with a four-year sentence that had been imposed in the Vigo
Superior Court with respect to a prior conviction. Nasser now appeals.
DISCUSSION AND DECISION
I. Bifurcated Trial
Nasser first contends that his right to due process was violated when the
trial court did not conduct a bifurcated proceeding with respect to the driving
while suspended charge. Specifically, Nasser maintains that trying a defendant without a
bifurcated proceeding in circumstances involving an enhancement in light of a prior conviction
constitutes a denial of fundamental due process rights under the United States Constitution,
Amend. V and XIV.
We initially observe that the driving while suspended statute, I.C. § 9-24-18-5(a)(1), (2)
(a) Except as provided in subsections (b) and (d), a person who
operates a motor vehicle upon a highway while the persons driving privilege, license,
or permit is suspended or revoked commits a Class A infraction. However,
(1) a person knowingly or intentionally violates this subsection; and
(2) less than ten (10) years have elapsed between the date a
judgment was entered against the person for a prior unrelated violation of this
subsection or IC 9-1-4-52 (repealed July 1, 1991) and the date the violation
described in subdivision (1) was committed; the person commits a Class A misdemeanor.
In support of his position that the trial court is required to conduct
bifurcated proceedings under this statute, Nasser directs us to
§ 35-38-1-2(c). The first statute reads as follows:
If the penalty for an offense is, by the terms of the statute,
increased because the person was previously convicted of the offense, the state may
seek to have the person sentenced to receive the increased penalty by alleging,
on a page separate from the rest of the charging instrument, that the
person was previously convicted of the offense.
The second statute that Nasser points to provides that:
(1) the state in the manner prescribed by IC 35-34-1-2.5 sought an increased
penalty by alleging that the person was previously convicted of the offense; and
(2) the person was convicted of the subsequent offense in a jury
the jury shall reconvene for the sentencing hearing. The person shall be
sentenced to receive the increased penalty if the jury . . .
finds that the state has proved beyond a reasonable doubt that the person
had a previous conviction for the offense.
I.C. § 35-38-1-2(c). In construing these statutes, Nasser urges that the
State was required to hold a new proceeding on the Class A misdemeanor
enhancement provision of the driving while suspended statute. Error occurred here, Nasser
contends, because his prior violation for driving while suspended was presented to the
jury before there was any determination as to the original charge as a
Class A infraction.
We initially observe that Nasser has waived the issue because he failed to
object to the manner of the proceedings at trial. See James v.
State, 613 N.E.2d 15, 25 (Ind. 1993) (a party may not fail to
object to a courts action and then raise the issue on appeal for
the first time). Waiver notwithstanding, we note that our supreme court in
Landis v. State, 704 N.E.2d 113 (Ind. 1998), determined that a defendant is
entitled to a bifurcated proceeding where evidence of a prior conviction will be
presented to a jury to enhance the instant offense. Id.
In Landis, the defendant was charged with stalking as a Class B felony,
based upon his prior conviction for that offense as a Class B misdemeanor.
Landis v. State, 693 N.E.2d 570, 571-73 (Ind. Ct. App. 1998).
Landis requested bifurcated proceedings of his guilt and penalty phases which the trial
court denied. In agreeing with Landis that the trial courts denial of
his request was error, we noted that where the State is required to
prove Landis prior stalking conviction to elevate the instant stalking offense, evidence of
the prior conviction would only serve to mislead the jury and it was,
therefore, necessary that a bifurcated proceeding be conducted. Id. at
572. Specifically, we observed that:
[W]e find here that where the State is required to prove a prior
conviction in order to elevate the current offense, a bifurcated trial must be
held wherein evidence of the defendants prior conviction, and the acts which culminated
in the prior conviction, shall not be introduced until the jury has first
decided upon the defendants guilt for the charge at hand.
II. Sufficiency of the Evidence
Our supreme court granted transfer in Landis and affirmed the portion of this
courts determination that Landis was entitled to a bifurcated trial where the State
sought an enhanced penalty based upon the prior stalking conviction. Landis, 704 N.E.2d
Unlike the circumstances presented in Landis, we note that Nasser made no request
for a bifurcated proceeding. Moreover, the violation for which Nasser was charged
was not a criminal offense. Specifically, I
§ 35-41-1-19 defines an
offense as a crime and does not include an infraction. (Emphasis supplied);
see also State v. Hurst, 688 N.E.2d 402, 405 (Ind. 1997) (traffic violations
are considered civil proceedings).
As set forth above, Nassers case involves the enhancement of an infraction to
a misdemeanor which was based upon the trial courts adjudication of a prior
infraction. Inasmuch as the evidence at trial was offered to enhance the
infraction to a Class A misdemeanor, and Nasser did not object to the
nature of the proceedings, there is no merit to Nassers contention under these
circumstances that he was entitled to a bifurcated proceeding. Thus, Nasser may
not succeed on his claim that his due process rights were violated.
Nasser next asserts that his conviction must be vacated because the evidence presented
at trial was conflicting as to whether he was actually suspended on June
26, 1998. Specifically, Nasser points out that one of the BMV records
shows a suspension date of February 16, 1998, and another record shows a
date of February 10, 1998 as the time of suspension. Thus, Nasser
maintains that such an obvious error compels this court to vacate the conviction.
Appellants brief at 8. Additionally, Nasser complains that the State failed
to prove the mens rea element of the offense because only the computer
generated BMV driving record which alleged suspension notices had been mailed was placed
into evidence. Appellants brief at 9. Thus, Nasser contends that the
State should have introduced the actual suspension notices into evidence in order to
show whether the suspension notice was mailed and whether proper notice was given.
To resolve Nassers sufficiency claim, we note that to convict a defendant of
driving while suspended as a Class A misdemeanor, the State must show that:
(1) the defendant was driving; (2) while his license was suspended; (3)
that he knew or should have known of the suspension; and (4) less
than ten years had elapsed between the date a judgment was entered against
the defendant for a prior unrelated driving while suspended infraction violation and the
date of the current violation. I.C. § 9-24-18-5;
see also Stewart v.
State, 721 N.E.2d 876, 879 (Ind. 1999). A defendants knowledge of his
license suspension can be inferred from the computer printout of the driving record
showing that a suspension of notice was sent to him. Cruite v.
State, 641 N.E.2d 1264, 1266 (Ind. 1994); Loe v. State, 654 N.E.2d 1157,
1159 (Ind. Ct. App. 1995).
When reviewing sufficiency of the evidence claims, this court neither reweighs the evidence
nor judges the credibility of witnesses. Fields v. State, 679 N.E.2d 898,
900 (Ind. 1997). This court will affirm the judgment if the evidence
and the inferences drawn therefrom constitute substantial evidence of probative value to support
the judgment. Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998).
Nasser concedes that he was driving the vehicle and that the BMV record
introduced at trial showed that his license was suspended on June 26, 1998.
Moreover, Nasser acknowledges that the BMV mailed two notices of suspension to
him. Appellants brief at 8-9. At trial, the State introduced a
certified copy of Nassers BMV driving record into evidence, showing that his license
was suspended from March 29, 1998 to June 27, 1998 for failure to
have insurance. R. at 89. While Nasser notes that his suspension
was determined on either February 10 or on February 16, 1998, such a
difference does not entitle him to relief, inasmuch as the record reflects that
Nassers license was suspended on June 26, 1998. R. at 79, 89.
Contrary to Nassers contention that the State was required to submit the actual
suspension letter at trial to prove that Nasser knew or should have known
of the suspension, our supreme court has determined that a defendants knowledge of
a license suspension can be inferred from the computer printout of the BMV
driving record showing the suspension. Cruite, 641 N.E.2d at 1266.
Inasmuch as the BMV records demonstrate that suspension notices were sent to Nasser
at his last known address, the evidence is sufficient to show that he
knew of the suspension. See Stewart, 721 N.E.2d at 879-80. As
a result, the evidence was sufficient and Nassers conviction may stand.
Nasser also asserts that he was improperly sentenced because the trial court failed
to state the reasons for imposing the maximum sentence. Specifically, Nasser argues
that the trial court failed to identify significant aggravating and mitigating factors, explain
each of them and then evaluate and balance the mitigating circumstances against the
aggravating factors to determine if they offset each other.
We initially observe that Nasser has waived this issue because he failed to
include the presentence report in the record that the trial court had referred
to at sentencing. See Posey v. State, 622 N.E.2d 1032, 1034 (Ind.
Ct. App. 1993), trans. denied (consideration of an issue is waived because the
defendant failed to include the transcript of the sentencing hearing). The defendant
has the burden to establish that prejudicial error was committed. Id.
Moreover, we have held that a trial court is not required to
set forth aggravating and mitigating circumstances, but only required to consider: (1)
the risk that the person will commit another crime; (2) the nature
and circumstances of the crime committed (3) the persons prior criminal record, character
and condition and the age of any victim. Hoage v. State 479 N.E.2d
1362 (Ind. Ct. App.1985).
Here, Nasser acknowledges that the trial court relied upon a presentence report that
had been prepared in a prior case when he was sentenced. Specifically,
we note the following statement made by the trial judge at sentencing:
All right. Is there anything further, Mr. Nasser? All right, the
Court having reviewed the pre-sentence report already prepared on Mr. Nassers background and
history, also being aware of the cases that he has pending before this
court in the past and the other misdemeanors case that is still pending
before this court, it is now my judgment Mr. Nasser that you shall
be ordered to serve one year in the Vigo County Jail, that sentence
is to be fully executed. . . .
R. at 165-66 (emphasis supplied). Because Nasser has failed to provide the
pertinent portions of the record for review of this issue, he has waived
the claim on appeal. See id.
Waiver notwithstanding, we note that the trial court has discretion to determine the
appropriate sentence, and it may be reversed only if the defendant shows a
manifest abuse of discretion. Ford v. State, 704 N.E.2d 457, 461 (Ind.
1998). Additionally, it is within the trial courts discretion to impose enhanced
and maximum sentences. Morgan v. State, 675 N.E.2d 1067, 1073 (Ind. 1996).
An enhanced sentence may be supported by only one aggravating factor.
Adkins v. State, 703 N.E.2d 182, 188 (Ind. Ct. App. 1998). A
defendants criminal history, by itself, is sufficient to support an enhanced sentence.
Battles v. State, 688 N.E.2d 1230, 1235 (Ind. 1997).
As Nasser correctly observes, the trial court did not specifically state any aggravating
factors when imposing the maximum sentence. However, the trial court pointed to
the content of Nassers presentence report and criminal history at the sentencing hearing.
R. at 163-67. Specifically, the trial court noted that it had
a copy of the report and had acquainted [itself] with [Nassers] prior
criminal record. R. at 163. The State pointed out that Nasser
had a long history of both felony and misdemeanor convictions, previous suspensions and
disciplinary proceedings before the BMV. R. at 163-64. The trial court
was familiar with Nassers prior convictions before its own court, as well as
the recent conviction in the Vigo Superior Court. R. at 163-64, 166-67.
The court also heard the prosecutor point out that Nasser continues to
drive without insurance, and continues to drive while intoxicated. R. at 165.
Contrary to Nassers claim, the circumstances set forth above were certainly aggravating
factors that the trial court could, and did consider, in enhancing the sentence.
Moreover, Nasser has not suggested that the trial court overlooked any mitigating
circumstances that the trial court should have considered. As a result, there
was no error in sentencing Nasser.
In light of our disposition of the issues set forth above, we conclude
that no error resulted when the trial court did not conduct bifurcated proceedings
with respect to the driving while suspended charge. We also note that
the evidence was sufficient to support Nassers conviction and conclude that he was
KIRSCH, J., concurs.
RILEY, J., concurs in result.
We leave for another day the issue of whether a
defendant is entitled to a bifurcated proceeding with regard to a previous adjudication
for an infraction when he makes a specific and timely request for such