                                                                                                 FILED
                                                                                             Aug 13 2020, 8:59 am

                                                                                                 CLERK
                                                                                             Indiana Supreme Court
                                                                                                Court of Appeals
                                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Alexander L. Hoover                                        Curtis T. Hill, Jr.
      Law Office of Christopher G. Walter,                       Attorney General of Indiana
      P.C.
      Nappanee, Indiana                                          Myriam Serrano
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
             COURT OF APPEALS OF INDIANA

      Tyson Daishan King,                                        August 13, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 20A-CR-6
                 v.                                              Appeal from the Marshall Superior
      State of Indiana,                                          Court

      Appellee-Plaintiff                                         The Honorable Dean A. Colvin,
                                                                 Judge
                                                                 Trial Court Cause No.
                                                                 50D02-1811-CM-1205



      May, Judge.

[1]   Tyson Daishan King appeals his conviction of Class A misdemeanor driving

      while suspended. 1 He presents two issues on appeal which we consolidate and




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




      Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020                         Page 1 of 12
      restate as whether the State presented sufficient evidence that King committed

      Class A misdemeanor driving while suspended. We reverse.



                                Facts and Procedural History
[2]   At approximately 11:30 a.m. on October 24, 2018, Indiana State Police Trooper

      Jonathan Hart pulled King over for driving seventy miles per hour in a fifty

      mile per hour speed zone. When Trooper Hart ran King’s driver’s license

      through the Indiana State Police Region 6 dispatch database, he received a

      report that indicated King’s license was suspended for failure to pay child

      support. King claimed he had no knowledge of the suspension, but Trooper

      Hart issued a summons for King to appear in court.


[3]   On November 15, 2018, the State charged King with Class A misdemeanor

      driving while suspended and Class C infraction speeding, 2 and the case

      proceeded to a bench trial on October 30, 2019. The State presented evidence

      that the BMV sent a Notice of Suspension to King’s last known address on July

      31, 2018. In addition, the State presented a certified copy of King’s driving

      record from the BMV, which outlined that King was suspended effective

      “8/30/2018” with an expiration date of “10/24/2018.” (State’s Exhibit 2 & 3.)

      During trial Trooper Hart testified that when he ran King’s driver’s license on

      the day of the traffic stop, the BMV report he received from Region 6 indicated




      2
          Ind. Code § 9-21-5-2(a) & (b).




      Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020          Page 2 of 12
      that King was “suspended effective 2018/08/30 indefinite, for child support.”

      (Tr. Vol. II at 13.)


[4]   On December 3, 2019, the trial court issued its order entering convictions on

      both counts for King, but it amended that order on December 5, 2019, to

      correct the amount of court costs. In its amended order, the trial court

      referenced the BMV manual, which defines the meaning of expiration as “the

      date the suspension ends.” (App. Vol. II. at 63.) During King’s trial, the trial

      court also recognized that the certified BMV record was the “best evidence” of

      King’s driving privileges. (Tr. Vol. II. at 30.) As such, the trial court ruled that

      King was still suspended through October 24, 2018, because the expiration date

      listed on the certified BMV record was the last day of the suspension. The trial

      court imposed a fine of $20 for the infraction and a driver’s license suspension

      of ninety days, a fine of $25 dollars, and court costs of $185.50 for the Class A

      misdemeanor.



                                  Discussion and Decision
[5]   When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is

      solely the initial fact-finder’s role to evaluate witness credibility and weigh the

      evidence to determine whether it is sufficient to support a conviction, and thus

      we consider conflicting evidence in the light most favorable to the trial court’s

      ruling. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We will affirm a



      Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020           Page 3 of 12
      conviction unless no reasonable fact-finder could find the elements of the crime

      proven beyond a reasonable doubt, id., and we reverse only “when the record

      contains no facts to support [it] either directly or by inference.” Quillen v.

      Quillen, 671 N.E.2d 98, 102 (Ind. 1996).


[6]   In order to convict King of driving while suspended, the State had to prove

      beyond a reasonable doubt that King “operate[d] a motor vehicle upon a

      highway,” while knowing that his “driving privileges, driver’s license, or permit

      [was] suspended or revoked,” and that the operation of the vehicle was within

      “ten years after the date on which judgment was entered against [him] for a

      prior unrelated violation.” Ind. Code § 9-24-19-2. King argues his license was

      not suspended on the day of the traffic stop based on the expiration date of his

      suspension.3


[7]   King argues that when he was pulled over for a speeding violation on October

      24, 2018, his suspension had already ended that day and, therefore, he cannot

      be found guilty of driving while suspended. 4 King takes issue with the trial

      court’s reasoning because, if affirmed, it would establish that “the expiration


      3
        King also asserts he had no knowledge of the suspension. However, the certified BMV record indicates the
      notice of suspension was sent to King’s address of record on July 31, 2018, and this is sufficient evidence
      from which to infer King’s knowledge. See Cruite v. State, 641 N.E.2d 1264, 1265 (Ind. 1994) (certified BMV
      record demonstrating notice sent is sufficient proof of knowledge).
      4
        King also challenges the validity of his suspension because he was not required to pay any fines or
      reinstatement fees in order to reinstate his driving privileges. He asserts that, if the suspension had been
      legitimate, “[he] would have had to pay fines and/or reinstatement fees” and that the alleged suspension is
      illegitimate because “he was not required to do anything further to receive his license.” (Br. of Appellant at
      8.) King’s official BMV record does list "0.00” under the “fees” heading. (State’s Exhibit 2.) However, that
      is also written for the other thirty suspensions King has listed on his record. We decline to hold that a
      suspension indicated on King’s certified driving record did not exist simply because King claims he was not
      required to pay a fine or fee when the suspension ended.




      Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020                                  Page 4 of 12
      date would not be the ending date of the suspension . . . and that the suspension

      would run through the suspension date and would expire at 12:00 a.m. on the

      date immediately after the expiration date.” (Br. of Appellant at 7.) The State

      conversely argues that King’s suspension expired at the end of the day on

      October 24, 2018, thus King’s driver’s license was not valid until beginning of

      the day on October 25, 2018. Consequently, the primary issue in this appeal is

      when “expiration” occurs – whether the listed expiration date is the last full day

      that the suspension runs through, thereby ending at 11:59 p.m. that day, or

      whether the suspension ends at 12:00 a.m. on the listed date and is no longer in

      effect from the beginning of that day.


[8]   King’s certified BMV driving record includes all of the information that we

      know about his suspension. 5 Specifically, the suspension at issue in this case,

      suspension ID 31 shows: (1) that King was suspended per BMV record; (2) that

      the reason King was suspended was due to delinquent child support; (3) the

      mail date of the suspension notice was July 31, 2018; (4) the effective date of

      the suspension was August 30, 2018; and (5) the expiration date of the

      suspension was October 24, 2018. As a guide, the “How to Read an Indiana

      Bureau of Motor Vehicle (BMV) Official Driver Record” manual further

      explains that “the definition of the expiration date is defined as ‘the date the


      5
       The record before us does not contain a copy of the Notice of Suspension issued by the BMV, nor does it
      contain the order of suspension by the Title IV–D agency to the BMV with any accompanying terms for
      reinstatement. Due to the lack of evidence in the record, it is unclear why October 24, 2018, was the end
      date of King’s suspension or why the BMV placed that date in his official driving record. We recognize,
      however, that as our role is different than that assigned to the trial court, we can consider only the evidence
      introduced at trial and not speculate as to the missing information.




      Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020                                    Page 5 of 12
       suspension ends.’” See “How to Read an Indiana Bureau of Motor Vehicle

       (BMV) Official Driver Record,” https://perma.cc/7B6J-6PPA (Indiana Bureau

       of Motor Vehicles, published December 8, 2014, effective legend for driver

       records printed on or after December 4, 2014).


[9]    We first note that neither King, the State, nor the trial court, provided any

       relevant case law or legal reasoning for their preferred time of expiration of the

       suspension. In fact, the primary resource referenced by all was the BMV

       manual, which does not clarify when on the date listed the BMV considers a

       suspension to have ended. We further note that there is no Indiana case on

       point that clarifies when a suspension of a driver’s license ends if there is an

       absence of guiding language included in the certified BMV driving record apart

       from the word “expiration” and when there is no reference to an administrative

       order outlining the specific length of a suspension period. Thus, this question is

       an issue of first impression for this court and we begin our analysis by looking

       to rules and caselaw regarding expiration of other time periods.


[10]   A broader overview of case law and statutory authority pertaining to

       computation of time generally reveals that the common law rule, which was

       also adopted in Indiana statutes and Rules of Procedure, is that in computing a

       period of time, “the day of the act, event, or default from which the designated

       period of time begins to run shall not be included. The last day of the period so

       computed is to be included.” Indiana Trial Rule 6(A).6 This method of

       6
        Trial Rule 6(A) is applicable in administrative, civil, and criminal trial proceedings; this rule also governs
       when a statute is silent on time limitation or computation. See 27 Ind. Law Encyc. Time § 7.




       Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020                                     Page 6 of 12
computation is also adopted by the Indiana Rules of Appellate Procedure Rule

25, Indiana Code section 4-21.5-3-2 which governs administrative procedures

and orders, and Indiana Code Section 34-7-5-1 which governs civil law and

procedure. Such rules and statutes exemplify that the general rule in Indiana is

that “when computing the time for performance of an act which must take

place within a certain number of days of some triggering event, the day of the

triggering even is not included.” Dobeski v. State, 64 N.E.3d 1257, 1261 (Ind. Ct.

App. 2016). See, e.g., Mockford v. Iles, 217 Ind. 137, 26 N.E.2d 42 (1940) (motion

for new trial); Local Union No. 403 v. Demetrakopoulos, 215 Ind. 452, 19 N.E.2d

466 (1939) (interlocutory orders); Pacific Mut. Life Ins. Co. v. Alsop, 191 Ind. 638,

134 N.E. 290 (1922) (expiration of insurance policy); Bowen v. Julius, 141 Ind.

310, 40 N.E. 700, (1895) (acceptance of payment); Brown v. Buzan, 24 Ind. 194

(1865) (breach of contract); Tucker v. White, 19 Ind. 253 (1862) (stay of

judgment); T.C. v. Review Bd. of Indiana Dept. of Workforce Development, 930

N.E.2d 29 (Ind. Ct. App. 2010) (filing of appeal); Jenkins v. Yoder, 324 N.E.2d

520 (Ind. Ct. App. 1975) (statute of limitations); Liberty Service, Inc. v. McKim,

157 N.E.2d 582 (Ind. Ct. App. 1959) (termination of lease); Keeling v. Board of

Zoning Appeals of City of Indianapolis, 117 Ind. App. 314, 69 N.E.2d 613, 618

(1946) (notice of hearing); Davidson v. Lemontree, 71 Ind. App. 215, 123 N.E.

177 (1919) (motion for change of venue); Mathews Farmers’ Mut. Live Stock Ins.

Co. v. Moore, 58 Ind. App. 240, 108 N.E. 155 (1915) (duration of insurance

coverage); Cheek v. Preston, 34 Ind. App. 343, 72 N.E. 1048 (1905) (payment of

rent); and In Re Estate of Dunnick, 855 N.E.2d 1087 (Ind. T.C. 2006) (petition

for rehearing).


Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020            Page 7 of 12
[11]   For questions of contract law, the courts may deviate from the uniform,

       aforementioned rule if the parties’ clear intent within the language of the

       contract was to include the first day. See Pacific Mut. Life Ins. Co 134 N.E. 290,

       291 (a year-long life insurance policy beginning on May 14, 1917, had been in

       force a full year of 365 days, by the end of May 13, 1918, and after the

       expiration of that date was “after one year” of the life of the policy; the court

       noted that “if the appellant had intended to make the policy incontestable after

       one year, exclusive of the date when it was issued” then the appellant should

       have specified that date in the policy).


[12]   In instances of ambiguity, when a statute is silent as to the method of

       computing time, Indiana Trial Rule 6(A) applies. See T.C. v. Review Bd. of

       Indiana Dept. of Workforce Development, 930 N.E.2d 29, 31 (Ind. Ct. App. 2010)

       (appellant argued that Indiana Code section 22-4-17-2 , which sets the time

       period for requesting a hearing before an Administrative Law Judge, is

       ambiguous because it is subject to “reasonable interpretations of calendar versus

       business days;” the reviewing court determined that where a statute is silent as

       to the method of computing time, Indiana Trial Rule 6(A) applies).


[13]   Particular words such as “before,” “between,” “to,” and “until,” take on their

       own meaning and indications within the context of the issue: See, e.g., Eshelman

       v. Snyder, 82 Ind. 498 (1882) (time until a day named does not include that day);

       Ardery v. Dunn, 181 Ind. 225, 104 N.E. 299 (1914) (where process is to be

       served a stated number of days before the first day of the term, the first day of

       the term is to be counted as the last day of the period stipulated); Fry v. Hoffman,



       Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020           Page 8 of 12
       54 Ind. App. 434, 102 N.E. 167, 168 (1913) (the word “between,” when used to

       define a period of time between two named days, excludes the first and last day;

       the ordinary rule as to the computation of time by excluding one day of a

       period and including the other does not apply); and Myers v. Winona Interurban

       Ry. Co., 50 Ind. App. 258, 98 N.E. 131 (1912) (time extended to March 3 did

       not include that day, as the word “to” is synonymous with “till” or “until,” and

       is generally regarded as a word of exclusion).


[14]   One Indiana case, which we find instructive, specifically considers the issue of

       how to regard the expiration of a period on a given date, albeit in the context of

       a term of office. In Vogel v. State ex rel. Laud, 107 Ind. 374, 8 N.E. 164 (1886)

       the appellee was commissioned as justice of the peace for four years beginning

       on April 17, 1882. One of the issues on appeal was when appellee’s term as

       justice of the peace expired. Our Indiana Supreme Court noted that if April 17,

       1882, was to be included as the start of the term, then the four-year term ended

       at midnight on April 16, 1886. If it did not begin on April 17, 1882, the term

       ended at midnight on April 17, 1886. Id. at 166. Our Indiana Supreme Court

       ultimately decided that appellee’s term and duties began on April 17, 1882, thus

       “his term as justice of the peace expired at midnight of the sixteenth day of

       April, 1886,” id, and did not include April 17, 1886. In so ruling, the court

       reasoned that the four years of the term must have ended before the expiration

       date of April 17.


[15]   When, as we are here, we are faced with an issue of first impression, we may

       also consider persuasive guidance from similar out-of-state decisions. See



       Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020           Page 9 of 12
       DiMaggio v. Rosario, 950 N.E.2d 1272, 1275 (Ind. Ct. App. 2011) (in instances

       where no past Indiana case law has addressed a particular issue, the Court of

       Appeals may look to decisions from other jurisdictions for instructive

       guidance). In City of Overland Park v. Rice, 567 P.2d 1382, 222 Kan. 693 (1977),

       the Supreme Court of Kansas held that the sixty-day suspension of defendant’s

       driver’s license, which began on October 4, 1971, was to be construed as a

       suspension for the period between October 4, 1971, and December 3, 1971. In

       so ruling, the court specifically stated that “the period of suspension in the

       present case ran from October 4, 1971, the date the order was effective, until the

       expiration of 60 days thereafter, December 3, 1971.” Id. at 1386. The Kansas

       Supreme Court recognized that the exact sixty-day suspension ran through

       December 2, and ended at 12:00 a.m. on December 3, which was also

       designated as the expiration date.


[16]   The evidence before us does not provide us with a distinct time-period for

       which King was suspended, no controlling words such as “until” or “to,” and

       no clear case law for comparison. Based on the certified BMV record, it is

       evident that King’s suspension went into effect on August 30, 2018; had he

       been pulled over for a violation on that day, it is of no question that he would

       have rightly been regarded as suspended. This understanding is in line with the

       reasoning adopted by the Vogel court. Our present case may be regarded as the

       inverse of the “first day excluded, last day included” rule because regardless

       whether the first day or last day is included and the other excluded as part of his

       suspension, King spends the same amount of days with his license suspended.




       Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020          Page 10 of 12
       We have adopted this reasoning in the past when considering suspension cases

       in which the duration of suspension is clearly outlined as lasting for a certain

       amount of days. For example, in Gibson v. Hernandez, the appellee’s driver’s

       license was suspended from March 24, 2001 to June 22, 2001, for failure to

       provide proof of financial responsibility as requested by the BMV. 7 764 N.E.2d

       253, 254 (Ind. Ct. App. 2002), trans denied. When counting Hernandez’s ninety-

       day suspension beginning on March 24, the ninetieth day fell on June 21,

       meaning that the suspension ran through the end of that day and ended at

       midnight; thus at 12:00 a.m. on June 22, her suspension ended. This suggests

       the effective date is the beginning of the suspension period, and includes the

       entirety of the day, such that the expiration date of the suspension excludes the

       whole of the last listed day.


[17]   Based on the BMV manual’s statement, which is not sufficiently instructive, the

       holding of the Vogel decision, our understanding of the general rule for

       computation of days in various legal contexts, and the persuasive guidance of

       the cited out-of-state case, we hold that King’s suspension expired at 12:00 a.m.

       on October 24, 2018. See City of Overland Park, 567 P.2d at 695 (suspension

       must end by the stated expiration date). Based thereon, we conclude King’s


       7
         The statute authorizing driver’s license suspension for failure to provide proof of financial responsibility is
       Indiana Code section 9-25-5-1(b). The statute further explains that “if the court fails to recommend a fixed
       term of suspension, or recommends a fixed term that is less than the minimum term of suspension required
       under this article, the bureau shall impose the applicable minimum term of suspension required under this
       article.” Indiana Code section 9-25-6-3(d) then directs the Bureau of Motor Vehicles to suspend the person’s
       driving privileges “for at least ninety (90) days and not more than one (1) year.” Although the Gibson opinion
       states only that appellee’s driver's license was suspended from March 24, 2001, to June 22, 2001, this time
       period constitutes ninety days, if counting from March 24; inclusion of June 22 as a full day would constitute
       the ninety-first day.




       Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020                                   Page 11 of 12
       driver’s license suspension was expired when Officer Hart initiated the traffic

       stop on October 24, 2018, and thus we reverse King’s conviction of Class A

       misdemeanor driving while suspended.



                                                 Conclusion
[18]   We hold 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. Accordingly, we reverse King’s

       Class A misdemeanor conviction.


[19]   Reversed.

       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-6 | August 13, 2020        Page 12 of 12
