MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Sep 25 2019, 6:46 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
Donald J. Berger                                         Curtis T. Hill, Jr.
Law Office of Donald J. Berger                           Attorney General of Indiana
South Bend, Indiana                                      Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bill Brian Tomlinson,                                    September 25, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1804-F6-334



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2 | September 25, 2019                Page 1 of 10
[1]   Bill Brian Tomlinson appeals his conviction for operating a motor vehicle while

      privileges were suspended as a level 6 felony. He raises one issue which we

      revise and restate as whether the evidence is sufficient to sustain his conviction.

      We affirm.


                                      Facts and Procedural History

[2]   On April 12, 2018, Indiana State Trooper Mark Price went to a gas station and

      as soon as he began to obtain fuel, Tomlinson stopped pumping gas, entered a

      minivan, pulled into a parking spot, and exited his vehicle. Trooper Price

      looked at the license plate at the back of the minivan and noticed that it was

      “fuzzy, blurry, maybe altered a little bit.” Transcript at 10. He drove by the

      minivan, obtained the license plate information, and drove directly across the

      street into a parking lot. Dispatch informed him that the plate belonged to a

      2002 beige tan Chevy Impala and that it had expired in 2017. He determined

      that the plate did not belong to the minivan and that it had been altered by

      attempting to “turn a 7 into a 9.” Id. at 11.


[3]   Tomlinson entered the minivan and drove north on Ameritech Drive, and

      Trooper Price turned on his headlights “to go after the vehicle and make a

      traffic stop.” Id. at 13. As he accelerated forward, Tomlinson braked and

      turned into the parking lot where Trooper Price was positioned. Tomlinson

      pulled into a parking space in front of a store, and Trooper Price activated his

      emergency lights and pulled in behind Tomlinson at an angle.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2 | September 25, 2019   Page 2 of 10
[4]   Trooper Price asked Tomlinson if the license plate belonged to the vehicle and

      if he had registration for the vehicle, and Tomlinson stated that he had recently

      purchased it from a friend but indicated he did not have a bill of sale or title.

      When asked if he had his driver’s license, Tomlinson handed Trooper Price an

      Indiana identification card. Trooper Price returned to his vehicle, ran the

      information, and determined that Tomlinson was an habitual traffic violator.

      He approached Tomlinson’s vehicle, and Tomlinson locked the door. After

      some discussion, Tomlinson eventually exited the vehicle.


[5]   On April 16, 2018, the State charged Tomlinson with operating a vehicle while

      suspended as an habitual traffic violator as a level 6 felony. On November 29,

      2018, the court held a jury trial. Trooper Price testified that Tomlinson’s

      minivan “was coming on to Ameritech Drive,” “went north,” and “was

      actually heading north on Ameritech Drive.” Id. at 14. He also stated that

      “[t]he van, the vehicle in question [was] now heading north on American

      Drive.” Id. at 23. During direct examination of Trooper Price, the following

      exchange occurred:


              Q. Ameritech Drive, is that a roadway?

              A. Yes. [It’s] a roadway. It connects with Cleveland and Brick
              Road which is a pretty big intersection before you get to the
              bypass. I mean, there’s traffic lights on that side. If you go down
              farther north, there’s some stop signs, two-way road.


      Id. at 20.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2 | September 25, 2019   Page 3 of 10
[6]   During redirect examination of Trooper Price, the following exchange

      occurred:


              Q. Officer, the area in between the gas station and the parking
              lot where you eventually made the traffic stop, that’s Ameritech
              Drive, correct?

              A. Yes.

              Q. And you observed [Tomlinson] drive on that road?

              A. Yes.

              Q. And that is a public roadway?

              A. Yes.

              Q. And there’s also public roadways leading to the gas station,
              correct?

              A. That’s correct.


      Id. at 33-34. On recross-examination, the following exchange occurred:


              Q. And who maintains Ameritech Drive.

              A. I don’t who [sic] maintains it. I mean, it crosses the
              intersection – it has a main intersection there, probably a county
              highway I would assume or the City of South Bend.

              Q. Or do you know if Ameritech – that there’s a big Ameritech
              plant over there or something like that, isn’t there too?

              A. The Ameritech plant is on the south side. The north side
              goes all the way up into Michigan.

              Q. Okay. So Ameritech at that point, do you if [sic] Ameritech
              or whoever is inside the Ameritech plant is the one who actually
              maintains the roadway at least up until Cleveland?
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2 | September 25, 2019   Page 4 of 10
              A. I don’t know who operates the roadway.


      Id. at 34-35.


[7]   The State introduced and the court admitted a recording of the encounter as

      well as a certified copy of Tomlinson’s driving record, which indicated that his

      status was habitual traffic violator, he had an address on Holmes Road, his

      suspension was effective March 29, 2011, and expires on March 26, 2021, and

      that notice was mailed to his address on February 22, 2011. Trooper Price

      testified that Tomlinson’s Holmes Road address was also the address on the

      identification card. The court admitted a certified copy of the charging

      information in cause number 71D02-1301-FC-4 (“Cause No. 4”), which alleged

      that Tomlinson operated a motor vehicle on January 9, 2013, “after having his

      Indiana driving privileges validly suspended as a Habitual Violator of Traffic

      Laws by the Indiana Bureau of Motor Vehicles with a begin date of the 29th

      [of] March, 2011, and an end date of the 26th day of March, 2021,” and that he

      “operated a motor vehicle when he knew or reasonably should have known that

      he was suspended as a Habitual Traffic Violator.” State’s Exhibit 4. The court

      also admitted a certified judgment of conviction and sentencing order dated

      August 21, 2013, for Cause No. 4 which indicated that Tomlinson pled guilty to

      “Count I, HTV, Class D Felony.” Id.


[8]   After the State rested, Tomlinson’s counsel moved for a directed verdict and

      stated that “[t]he only evidence that we have of Ameritech Drive being a

      highway or street and publicly maintained is – well, really there is none because


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2 | September 25, 2019   Page 5 of 10
       the officer testified he didn’t know who actually maintained it.” Transcript at

       36. The court noted Guidry v. State, 650 N.E.2d 63 (Ind. Ct. App. 1995), denied

       the motion, and stated “I’m not entitled to weigh evidence or judge credibility

       but I do find there is evidence on every element of the offense. What the jury

       does with it is their job.” Transcript at 39.


[9]    Tomlinson testified that he did not have a valid driver’s license but was

       unaware at the time of the stop that he had been adjudged as an habitual traffic

       violator by the Bureau of Motor Vehicles. He testified that he obtained his

       identification card when he was released from prison two years prior to the

       stop, that the address on the identification card had “been on my record but I

       haven’t lived at that address for 20 years,” and that the Bureau of Motor

       Vehicles “used the address that was already on there.” Id. at 43. He denied

       receiving a notice that he was suspended as an habitual violator. When asked

       about Cause No. 4, he indicated that he “thought that charge was getting

       thrown out.” Id. at 47. On cross-examination, when asked, “[b]ut you drove

       the vehicle from the gas station across the street to the parking lot, correct,” he

       answered: “I crossed the street, yes.” Id. at 52-53.


[10]   After the defense rested, Tomlinson’s counsel asked the court if it would allow

       him to argue “lack of evidence that driving was upon a highway or a street,”

       and the court stated: “Well, I don’t think the law requires it. You can argue

       what the statute means. Of course, it’s the jury to determine the law but it says

       what it says and I suppose the State can say it says what it says.” Id. at 57.

       During closing argument, Tomlinson’s counsel stated that an habitual traffic

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2 | September 25, 2019   Page 6 of 10
       violator can operate a vehicle in a parking lot, the prosecutor asked to approach

       and asserted: “The Court determines a habitual traffic violator may not operate

       a vehicle in a parking lot.” Id. at 66. Defense counsel stated that he thought it

       was an issue that could go to the jury. The court stated: “I think in light of that,

       the [C]ourt of [A]ppeals decision, they pretty much determined that it is.” Id.

       The court indicated that the two remedies were to “just leave it as it is and go

       on” or “continue down that line and then I’d probably have to modify my

       instructions including something from that case that says you can’t operate in

       [a] parking lot.” Id. Defense counsel stated: “I’ll just leave it where it is.” Id.


[11]   The jury found Tomlinson guilty as charged. The court entered judgment of

       conviction and sentenced him to thirty months with all but 288 days suspended

       and placed him on probation for twelve months.


                                                    Discussion

[12]   The issue is whether the evidence is sufficient to sustain Tomlinson’s

       conviction. When reviewing claims of insufficiency of the evidence, we do not

       reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656

       N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and

       the reasonable inferences therefrom that support the verdict. Id. We will affirm

       the conviction if there exists evidence of probative value from which a

       reasonable trier of fact could find the defendant guilty beyond a reasonable

       doubt. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2 | September 25, 2019   Page 7 of 10
[13]   The offense of operating a motor vehicle while privileges are suspended as a

       level 6 felony is governed by Ind. Code § 9-30-10-16, which provides that “[a]

       person who operates a motor vehicle . . . while the person’s driving privileges

       are validly suspended under this chapter or IC 9-12-2 (repealed July 1, 1991)

       and the person knows that the person’s driving privileges are suspended . . .

       commits a Level 6 felony.”


[14]   On appeal, Tomlinson does not specifically argue that he was unaware of his

       status as an habitual offender. Rather, he argues that “[t]he facts seem to

       establish that [he] drove the vehicle but that driving was on private property not

       a public highway.” Appellant’s Brief at 8. He contends that the trial court took

       impermissible latitude in broadening the scope of the statute. 1 The State argues

       that Tomlinson did not operate the vehicle on only private property and that the

       language of Ind. Code § 9-30-10-16 is clear and was properly interpreted and

       applied by the trial court.


[15]   To the extent Tomlinson argues that the evidence showed that he drove only on

       private property, we disagree based upon Trooper Price’s testimony related to

       Ameritech Drive. Even assuming that the State did not present sufficient

       evidence that Ameritech Drive was a public roadway, we have previously held




       1
         Tomlinson also asserts: “Limiting the Defense in this manner prohibited the jury from considering the issue
       of [him] driving on private property and thereby denied [him] of a constitutional right.” Appellant’s Brief at
       8. He does not cite to authority or develop this argument, and accordingly, has waived the claim. See Cooper
       v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding the defendant’s contention was waived because it was
       not supported by cogent argument).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2 | September 25, 2019                   Page 8 of 10
       that such evidence is not required under the statute. See Guidry v. State, 650

       N.E.2d 63, 67 (Ind. Ct. App. 1995) (holding that the language of Ind. Code § 9-

       30-10-16 is not vague, the statute “states unequivocally that a person who

       operates a motor vehicle while his driving privileges are suspended commits a

       class D felony,” that “[a]n individual reading the statute would understand it to

       proscribe operation of a vehicle on [a] private roadway used by the general

       public,” and that “[t]he State was not required to prove that [the defendant]

       operated his vehicle on a public highway”); see also Pruitt v. State, 934 N.E.2d

       767, 769 (Ind. Ct. App. 2010) (“In this case, the statute at issue, Indiana Code

       section 9-30-10-17, like Indiana Code section 9-30-10-16 in Guidry, is not

       explicitly limited in application to persons who operate a motor vehicle on

       public roads. Furthermore, as was the case in Guidry, we note that the

       legislature’s choice not to use such limiting language indicates that the danger

       to the public from a habitual traffic offender driving without a license is as great

       in [a] shopping center and other private parking lots as it is on public

       highways.”), trans. denied. Based upon the record, we cannot say that the

       inferences made by the jury were unreasonable. We conclude that evidence of

       probative value exists from which the jury could have found Tomlinson guilty

       beyond a reasonable doubt of operating a vehicle while privileges were

       suspended as a level 6 felony.


                                                   Conclusion

[16]   For the foregoing reasons, we affirm Tomlinson’s conviction.


[17]   Affirmed.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2 | September 25, 2019   Page 9 of 10
Altice, J., and Tavitas, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2 | September 25, 2019   Page 10 of 10
