MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Apr 02 2018, 8:48 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
Elizabeth A. Houdek                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Xavia Fox,                                               April 2, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1709-CR-2183
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda E. Brown
Appellee-Plaintiff                                       The Honorable Steven J. Rubick
                                                         Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49G10-1603-CM-11213



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2183 | April 2, 2018              Page 1 of 5
[1]   Xavia Fox appeals her convictions for driving while suspended and operating a

      motor vehicle having never received a license. Both counts were elevated to

      Class A misdemeanors based on prior convictions. On appeal, Fox claims that

      the State failed to present sufficient evidence to establish the prior convictions.


[2]   We affirm in part, reverse in part, and remand.


                                       Facts & Procedural History


[3]   Late in the evening on March 20, 2016, Fox was driving while suspended and

      had never received a valid driver’s license. She drove her mother’s vehicle into

      three vehicles parked alongside the street. Occupants of a nearby residence

      heard the crash and ran outside. As police were being called, Fox got out of the

      vehicle and left on foot. Shortly thereafter, Fox was discovered by police at her

      mother’s home. Fox admitted hitting “several vehicles” and “continuously

      apologized to her mom for wrecking her car.” Transcript at 22, 24. One of the

      responding officers then discovered that Fox did not have a license to drive.


[4]   On March 24, 2016, the State charged Fox with one count each of Class A

      misdemeanor driving while suspended (Count I) and Class A misdemeanor

      operating without ever receiving a license (Count II) and three counts of Class

      B misdemeanor leaving the scene of an accident (Count III, IV, and V). The

      case proceeded to a bench trial on August 25, 2017, and Fox was convicted as




      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2183 | April 2, 2018   Page 2 of 5
      charged on Counts I, II, III, and V.1 The trial court sentenced her to 365 days

      each on Counts I and II and 180 days each on Counts III and V. The sentences

      were ordered to be served concurrently, with all but 60 days suspended to

      probation. Fox appeals her convictions on Counts I and II only.


                                             Discussion & Decision


[5]   On appeal, Fox acknowledges that she drove her mother’s vehicle on the night

      in question without ever having a license and while she was suspended. Her

      claim is simply that the State failed to present evidence of the prior convictions

      alleged in support of the enhancements for Counts I and II.


[6]   When we consider a challenge to the sufficiency of the evidence, we neither

      reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,

      51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and

      reasonable inferences supporting the conviction. Id. We will affirm if there is

      probative evidence from which a reasonable trier of fact could have found the

      defendant guilty beyond a reasonable doubt. Id.


[7]   Ind. Code § 9-24-19-2 provides:


                An individual who:

                         (1) knows that the individual’s driving privileges, driver’s
                         license, or permit is suspended or revoked; and




      1
          Count IV was dismissed pursuant to Ind. Trial Rule 41(B).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2183 | April 2, 2018   Page 3 of 5
                        (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, this section, IC 9-1-4-52 (repealed
                        July 1, 1991), or IC 9-24-18-5(a) (repealed July 1, 2000);

               commits a Class A misdemeanor.

      This offense is elevated from a Class A infraction provided in I.C. § 9-24-19-1

      based upon the prior violation. Similarly, under I.C. § 9-24-18-1, the offense of

      operating having never received a license is elevated from a Class C

      misdemeanor to a Class A misdemeanor if the defendant “has a prior unrelated

      conviction under this section.”


[8]   At trial, the State submitted into evidence, as Exhibit 1, a certified copy of

      Indiana’s official driver record for Fox. Pursuant to I.C. § 9-30-3-15, the State

      used this record from the Indiana Bureau of Motor Vehicles to establish prima

      facie evidence of Fox’s prior driving-related convictions.2 This document

      indicates that on June 28, 2012, Fox was convicted of Class A misdemeanor

      driving while suspended with a prior within ten years. Thus, Fox had a

      conviction under I.C. § 9-24-19-2 less than ten years before she committed the

      instant offense of driving while suspended with a prior. The State presented

      sufficient evidence to support Fox’s conviction on Count I.




      2
        Pursuant to I.C. § 9-30-3-15, “the relevant portions of a certified computer printout or electronic copy made
      from the records of the bureau are admissible as prima facie evidence of the prior conviction.”

      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2183 | April 2, 2018                Page 4 of 5
[9]    With respect to Count II, the State properly concedes that Exhibit 1 does not

       show a prior conviction for operating having never received a license. Because

       the evidence was insufficient in this regard, we remand for the trial court to

       vacate the Class A misdemeanor conviction on Count II and enter judgment on

       the lesser included offense of Class C misdemeanor operating having never

       received a license.


[10]   Judgment affirmed in part, reversed in part, and remanded.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-CR-2183 | April 2, 2018   Page 5 of 5
