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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAN B. BERG JEFFREY A. MODISETT
Indianapolis, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
COURT OF APPEALS OF INDIANA
VIRGIL AUSTIN, )
vs. ) No. 49A02-9711-CR-786
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9701-CF-5709
October 29, 1998
OPINION - FOR PUBLICATION
Virgil Austin (Austin) appeals his conviction after a jury trial of operating a motor
vehicle after license forfeited for life, a Class C felony. He raises one issue on appeal, which
we restate as whether the State proved that Austin's driving privileges had been forfeited for
FACTS AND PROCEDURAL HISTORY
On January 9, 1997, Indianapolis Police Officer Douglas Correll observed Austin
driving a Ford Explorer north on Keystone Avenue with the driver's side window open.
Because the temperature was well below freezing and open or broken windows sometimes
are indicative of a stolen vehicle, Officer Correll followed the Explorer. He enlisted the aid
of Indianapolis Police Officer Bryan Churchill, who joined the observation and followed the
Explorer to a liquor store parking lot. Officer Churchill observed Austin exit the driver's
side of the Explorer and enter the liquor store. A check on the Explorer's license plate
revealed that plate had been reported as stolen.
When Austin exited the liquor store and tried to reenter the Explorer, Officers Correll
and Churchill confronted him. Austin identified himself by name, date of birth and social
security number. Officer Correll then ran a check on Austin, which revealed that Austin's
driving privileges had been suspended for life as an habitual traffic violator. Austin was then
arrested and charged with operating a motor vehicle after license forfeited for life, a Class
C felony.See footnote 1
DECISION AND DISCUSSION
Austin was convicted pursuant to Indiana Code Section 9-30-10-17, which provides
that [a] person who operates a motor vehicle after the person's driving privileges are
forfeited for life under section 16 of this chapter,See footnote 2
IC 9-4-13-14See footnote 3
(repealed April 1, 1984), or
IC 9-12-3-1See footnote 4
(repealed July 1, 1991) commits a Class C felony. (Footnotes added).
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. Bates v. State, 650
N.E.2d 754, 757 (Ind. Ct. App. 1995). Austin claims that the State failed to prove the second
element -- that his driving privileges were forfeited for life.
Austin argues that none of the State's evidence proved beyond a reasonable doubt that
his license had been forfeited for life. An examination of the evidence entered by the State
does not support Austin's claim.
State's Exhibit 1 was an Officer's Arrest Report/Book-In Slip showing that on
February 19, 1990, Austin was arrested for operating a vehicle while an habitual traffic
offender under Indiana Code Section 9-12-3-1. R. at 353. State's Exhibit 2 was another
Officer's Arrest Report/Book-In Slip, showing that on September 8, 1994, Austin was
arrested for HTV (Habitual Traffic Violator) pursuant to Indiana Code Section 9-30-10-16.
Id. at 355. State's Exhibit 6 was an Information dated September 9, 1994, which stated that
VIRGIL AUSTIN, on or about September 8, 1994, did operate a vehicle, that is: Park
Avenue at approximately 4900 E. Fall Creek Parkway N.D., [after] his driving privileges had
been forfeited for life under I.C. 9-30-10-16; all of which is contrary to statute and against
the peace and dignity of the State of Indiana. Id. at 362. State's Exhibit 7 was a Plea
Agreement from Cause No. 49G019409CF115642, wherein Austin agreed to plead guilty to
operating a vehicle after license forfeited for life, a Class C felony. Id. at 365-67. State's
Exhibit 8 is an Abstract of Judgment filed March 7, 1995 in Cause No.
49G019409CF115642, showing that Austin was found Guilty of . . . OPER.VEH.AFTER
LIC.FORFEITED FOR LIFE/FC . . . statutory citation 0009-0030-0010-0017." Id. at 369.
Austin concedes that the State proved that he had previously been convicted of
operating a motor vehicle after license forfeited for life under Indiana Code Section 9-30-10-
17, but argues that does not eliminate the State's obligation to prove a forfeiture of his
license for life under 9-12-3-1 in the instant case. Brief of Appellant at 12. We do not
agree. Pursuant to Stanek v. State, 587 N.E.2d 736, 740 (Ind. Ct. App. 1992), affirmed in
part, vacated in part, 603 N.E.2d 153 (Ind. 1992), [a] valid Class C felony conviction of
Operating While Privileges are Forfeited for Life is relevant and probative evidence of the
existence of the material fact, i.e., life forfeiture of driving privileges. The State introduced
not only the Plea Agreement which Austin entered into in 1995 pleading guilty to a Class C
felony of operating a vehicle while license suspended for life, but also the Abstract of
Judgment. This was sufficient evidence to support Austin's conviction.
The State proved that Austin had operated a motor vehicle after his license had been
forfeited for life. We affirm.
NAJAM, J., and FRIEDLANDER, J., concur.
1 Austin was also charged with resisting law enforcement, a Class A misdemeanor. During his first
jury trial, he was found guilty of resisting law enforcement, but the jury failed to reach a verdict on the
vehicular offense. A second jury found Austin guilty of operating a motor vehicle after license forfeited for
life, a Class C felony.
2 This section provides:
(a) A person who operates a motor vehicle: (1) While the person's driving privileges are suspended
under this chapter or IC 9-12-2 (repealed July 1, 1991); or (2) In violation of restrictions imposed under this
chapter or IC 9-12-2 (repealed July 1, 1991); commits a Class D felony.
(b) In addition to any criminal penalty, a person who is convicted of a felony under subsection (a)
forfeits the privilege of operating a motor vehicle for life.
3 This section and Indiana Code Section 9-4-13-14.5, now sections 9-30-10-16 and 9-30-10-17,
related to the penalties for operating a motor vehicle while privileges were suspended or forfeited for life.
4 This section, now section 9-30-10-16, related to the crimes of operating a motor vehicle while
privileges are suspended or while privileges are forfeited for life.
Converted by Andrew Scriven