ATTORNEYS FOR APPELLANT                             ATTORNEYS FOR APPELLEE
Matthew G. Grantham                                 Gregory F. Zoeller
Huntington, Indiana                                 Attorney General of Indiana

                                                    Andrew A. Kobe
                                                    Tamara L. Weaver
                                                    Deputy Attorneys General
                                                    Indianapolis, Indiana


                                                                                  FILED
                                          In the                               Jul 26 2012, 11:16 am


                       Indiana Supreme Court                                           CLERK
                                                                                     of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court




                                  No. 35S04-1110-CR-622

MICHAEL J. LOCK,
                                                            Appellant (Defendant below),

                                              v.

STATE OF INDIANA,
                                                            Appellee (Plaintiff below).


            Appeal from the Huntington Superior Court, No. 35D01-0906-FD-135
                       The Honorable Jeffrey R. Heffelfinger, Judge


     On Petition to Transfer from the Indiana Court of Appeals, No. 35A04-1010-CR-641



                                        July 26, 2012

Massa, Justice.


       Indiana’s motor vehicle statutes provide a carve-out through which individuals whose
driving privileges are suspended may still commute—provided the device they use to do so
meets certain requirements. One requirement is that the “maximum design speed” of such a
device may not exceed twenty-five miles per hour.
          When the only evidence admitted at trial as to this requirement is that the defendant was
traveling forty-three miles per hour on a flat, dry surface, is that evidence sufficient to sustain his
conviction? We think so.




                                        Facts and Procedural History


          On June 27, 2009, Indiana State Police Trooper Pornteb Nathalang, on his motorcycle,
pulled up behind Michael Lock on U.S. Highway 24 in Huntington County. Lock was riding a
2009 Yamaha Zuma with no license plate. Trooper Nathalang followed Lock for a quarter-mile
at a constant speed on a flat, level surface and determined that Lock was traveling forty-three
miles per hour.


          Trooper Nathalang then pulled Lock over and learned that Lock’s driving privileges were
suspended for being a habitual traffic violator. Lock was arrested and charged with operating a
motor vehicle as a habitual traffic violator, a class D felony,1 and the State also cited him for two
traffic infractions. At his bench trial, Lock and the State stipulated that Lock’s Zuma had two
wheels, an internal combustion engine with a cylinder capacity of forty-nine cubic centimeters,
an engine rating of not more than two horsepower, and an automatic transmission. The parties
also stipulated to Trooper Nathalang’s radar track of forty-three miles per hour.


          The trial court found Lock guilty of the class D felony, sentenced him to 180 days, and
revoked his driving privileges for life.2 Lock appealed, arguing first that the habitual traffic
violator statute is unconstitutionally vague and second, that the evidence was insufficient to
support his conviction.




1
    Ind. Code § 9-30-10-16(a) (2010).
2
    The State agreed to dismiss the two infractions.



                                                       2
       In a split opinion, the Court of Appeals reversed. Lock v. State, 952 N.E.2d 280, 281
(Ind. Ct. App. 2011). Without addressing the constitutional challenge, it found that the State’s
evidence of the Zuma’s speed—standing alone—was too speculative to affirm a conviction. Id.
at 283. We granted transfer, thereby vacating the opinion of the Court of Appeals. Lock v. State,
962 N.E.2d 650 (Ind. 2011) (table).




                                      Standard of Review


       In reviewing the sufficiency of the evidence, we examine only “the probative evidence
and reasonable inferences” that support the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). We do not assess witness credibility, nor do we reweigh the evidence to determine if it
was sufficient to support a conviction. Id. Under our appellate system, those roles are reserved
for the finder of fact. Instead, we consider only the evidence most favorable to the trial court
ruling and “affirm the conviction unless ‘no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.’” Id. at 146–47 (quoting Jenkins v. State, 726 N.E.2d
268, 270 (Ind. 2000)).     This evidence need not overcome every reasonable hypothesis of
innocence; it is sufficient so long as “‘an inference may reasonably be drawn from it to support
the verdict.’” Id. at 147 (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).


       A constitutional challenge, however, is reviewed de novo. But we are “a court and not a
‘supreme legislature.’ We have no right to substitute our convictions as to the desirability or
wisdom of legislation for those of our elected representatives.” State v. Downey, 476 N.E.2d
121, 122 (Ind. 1985). Thus, we approach such questions with the presumption that the statute is
constitutional, and the challenger is burdened to prove otherwise. Brown v. State, 868 N.E.2d
464, 467 (Ind. 2007). Any reasonable doubts and constructions as to the statute’s validity are
resolved in favor of constitutionality. State v. Lombardo, 738 N.E.2d 653, 655 (Ind. 2000);
Brady v. State, 575 N.E.2d 981, 984 (Ind. 1991).




                                                3
                   I.   The Statutory Scheme Is Not Unconstitutionally Vague.



         A fundamental aspect of our nation’s jurisprudence is that criminal statutes must “give a
person of ordinary intelligence fair notice that his contemplated conduct is forbidden so that ‘no
man shall be held criminally responsible for conduct which he could not reasonably understand
to be proscribed.’” Brown, 868 N.E.2d at 467 (quoting Healthscript, Inc. v. State, 770 N.E.2d
810, 816 (Ind. 2002)); see also Jordan v. DeGeorge, 341 U.S. 223, 230 (1951) (“This Court has
repeatedly stated that criminal statutes which fail to give due notice that an act has been made
criminal before it is done are unconstitutional deprivations of due process of law.”).
Accordingly, we have said that due process requires that a penal statute “clearly define its
prohibitions.” Brown, 868 N.E.2d at 467. If it fails “to provide notice enabling ordinary people
to understand the conduct that it prohibits” or “authorizes or encourages arbitrary or
discriminatory enforcement” then it is subject to invalidation. Id. Additionally, “there must be
something in a criminal statute to indicate where the line is to be drawn between trivial and
substantial things so that erratic arrests and convictions for trivial acts and omissions will not
occur.” Downey, 476 N.E.2d at 123. “It cannot be left to juries, judges, and prosecutors to draw
such lines.” Id.


       Lock argues that Section 9-30-10-16 is unconstitutionally vague because it failed to put
Lock on reasonable notice that driving the Zuma was illegal. (Appellant’s Br. at 5–9.) The
relevant portion of the statute provides that “[a] person who operates a motor vehicle . . . while
the person’s driving privileges are validly suspended . . . and the person knows that the person’s
driving privileges are suspended . . . commits a Class D felony.” Ind. Code § 9-30-10-16(a).
Lock appears to concede that this statute is constitutionally sufficient on its face, (Appellant’s Br.
at 6), but instead contends that it is unconstitutionally vague as applied to him because of its
interplay with several related provisions.


       First, the Indiana Code provides that, for the purposes of Chapter 9-30-10, the definition
of motor vehicle “does not include a motorized bicycle.” Ind. Code § 9-13-2-105(d) (2010). A
“motorized bicycle,” in turn, is defined as

                                                  4
               a two (2) or three (3) wheeled vehicle that is propelled by an
               internal combustion engine or a battery powered motor, and if
               powered by an internal combustion engine, has the following:

               (1)     An engine rating of not more than two (2) horsepower and
               a cylinder capacity not exceeding fifty (50) cubic centimeters.

               (2)     An automatic transmission.

               (3)    A maximum design speed of not more than twenty-five (25)
               miles per hour on a flat surface.

               The term does not include an electric personal assistive mobility
               device.

Ind. Code § 9-13-2-109 (2010) (emphasis added). There is, however, no statutory definition of
“maximum design speed,” nor have our courts defined the phrase. This definition gap is the
focus of Lock’s constitutional argument because “the Zuma’s ‘maximum design speed’
determines whether it is a ‘motorized bicycle,’ which in turn ultimately determines whether [he]
ran afoul of the habitual traffic violator statute.” (Appellant’s Br. at 7.)


       However, a criminal statute does not need to provide an express or explicit list of
prohibited conduct with scientific precision, however much we might think it helpful.
“Condemned to the use of words, we can never expect mathematical certainty from our
language.” Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). Instead, we have repeatedly
said that a criminal statute survives a vagueness challenge “‘if individuals of ordinary
intelligence could comprehend it to the extent that it would fairly inform them of the generally
proscribed conduct.’” Brown, 868 N.E.2d at 467 (quoting Klein v. State, 698 N.E.2d 296, 299
(Ind. 1998)); see also Lombardo, 738 N.E.2d at 656.


       Because our analysis on this issue turns on how an ordinary person would interpret the
statute, resort to legal definitions and scientific sources is less desirable than consultation of
standard language dictionaries. See Brown, 868 N.E.2d at 467. And doing so shows that a
person of ordinary intelligence would interpret this statutory definition of “motorized bicycle” to




                                                   5
exclude any devices whose highest possible speed—as conceived of, planned, or devised—is
more than twenty-five miles per hour.3


        But there remains the question of by whom the design must be made—either by a
manufacturer or a subsequent modifier, or both. Lock argues that “maximum design speed” is
“an integrated scientific phrase that quantifies the speed that the maker of the vehicle intended,
not the speed the vehicle could actually go.” (Appellant’s Br. at 10.) But at oral argument,
counsel for both sides noted the ability of individuals to modify the engine of a motorized
bicycle in order to allow it to exceed twenty-five miles per hour.


        This is not an unforeseeable occurrence, and we think it equally reasonable that the
legislature assumed this possibility as well—and therefore chose the broader “maximum design
speed” language over “maximum manufacturer’s design speed” or Lock’s suggested “maximum
design velocity.” (Appellant’s Br. at 10.) Most importantly, we think an ordinary person
examining the statute would reach a similar conclusion: that the statutory provision looks
initially to the original manufacturer’s maximum design speed, but also encompasses any
subsequent modifications or redesigns.


        In any event, it seems apparent that the statutory scheme is constitutionally sound in that
it fairly informs the general public as to what conduct is prohibited. And it does so in a way that




3
  See, e.g., Webster’s Third New International Dictionary 611 (Philip Babcock Gove, ed., 1993) (“design”
means to conceive of, plan out, or to devise for a particular use or function). Likewise, “maximum”
means “greatest in quantity or highest in degree attainable or attained”. Id. at 1396. Finally, “speed” in
this context refers to the object’s “rate of motion.” Id. at 2189.

         The State put forth a definition at trial, based on an online dictionary, and Lock concedes that this
definition was plausible. It proposed that “design” refers to “an underlying scheme that governs
functioning, developing, or unfolding” or something done aimed at a “particular purpose.” (Appellant’s
Br. at 11–12.) This is not dissimilar to the definition we give today.



                                                      6
uses plain, ordinary language to draw clear lines between trivial and substantial conduct, using a
series of quantifiable terms and provisions.


        However, Lock contends that the statute is unconstitutionally vague because—
notwithstanding the State’s plausible definition (and the definition we provide today)—“the first
time Lock knew his Zuma had a ‘maximum design speed’ of more than 25 miles per hour would
have been after he got pulled over going 43 miles per hour. This is not sufficient notice to warn
Lock of impending criminal penalties.” (Appellant’s Br. at 8.)


        But this argument is not a vagueness challenge—i.e., that an ordinary person would not
know what conduct was prohibited. Instead, it says Lock may not have been aware of the
capabilities of his Honda Zuma until he was pulled over. This is like a drunk driver asserting a
constitutional vagueness challenge because he didn’t know how many beers would render him
impaired. The claim goes more to mitigation than constitutionality.4


        Lock also argues that the statute fails to draw a sufficient line between trivial and
substantial conduct because “all Lock [or anyone similarly situated] would have to do in order to
avoid a habitual traffic violator charge is not exceed 25 miles per hour, as there was no other
indication that Lock’s Zuma had a ‘maximum design speed’ greater than what the statute
allows.” (Appellant’s Br. at 8–9.) Therefore, the argument goes, the statutes are arbitrary
because a similarly situated person who drove at twenty-five miles per hour or less on the same
Zuma would avoid penalty.




4
  More to the point, there is no requirement under these provisions that the State prove Lock knew the
Zuma was not a motorized bicycle, or knew it was a motor vehicle. The issue of mens rea only arises
under Section 9-30-10-16, in that Lock could only be convicted if it were shown beyond a reasonable
doubt that he knew his driving privileges were suspended. Ind. Code §§ 9-13-2-109, 9-30-10-16(a)(1);
State v. Cooper, 935 N.E.2d 146, 149 (Ind. 2010) (conviction requires proof of “(1) the act of driving; (2)
an HTV adjudication; and (3) that the defendant knew or should have known of the suspension.”); State v.
Jackson, 889 N.E.2d 819, 822–23 (Ind. 2008).



                                                    7
       This overlooks, however, that the similarly situated person is still breaking the law. He is
just not getting caught. This no doubt happens on a daily basis on our streets and highways.
Any number of drunk drivers avoid detection, but this does not mean they did not break a law,
nor does it render that law unconstitutionally vague.


       In sum, Indiana Code § 9-30-10-16 withstands Lock’s constitutional challenge.




               II. The Evidence Was Sufficient to Sustain Lock’s Convictions.


       Lock and the State stipulated to facts that conclusively establish the Zuma’s compliance
with all but one of Section 9-13-2-109’s requirements: the Zuma had “two wheels, an internal
combustion engine with a cylinder capacity of 49 cubic centimeters, an engine rating of not more
than two horse power, and an automatic transmission.” (Appellant’s Br. at 2–3; Appellee’s Br.
at 2); accord Ind. Code § 9-13-2-109(1)–(2). The parties also stipulated that “Trooper Nathalang
observed the Defendant and received a radar track on his vehicle of 43 mph. The roadway was
flat, level, and dry.” Lock, 952 N.E.2d at 281.


       The question remaining is whether this piece of evidence—a sole incident of a single
radar track—is sufficient to sustain Lock’s conviction by showing that the Zuma exceeded the
final requirement of Section 9-13-2-109 by virtue of a maximum design speed greater than
twenty-five miles per hour.


       Much of Lock’s argument on the question of proof mirrors his constitutional challenge,
by suggesting a stricter definition of “maximum design speed.” (Appellant’s Br. at 9–12.) What
he ultimately appears to say, though, is that in order to prove a violation of this provision the
State must have shown “that Lock’s Zuma was created with a particular purpose or scheme to the
effect that the Zuma would exceed 25 miles per hour on any given day.” (Appellant’s Br. at 12.)
Because the State offered no evidence of any such purpose or scheme, Lock says, the evidence of




                                                  8
his speed on June 27, 2009, would only allow a court to speculate as to the actual “maximum
design speed.” (Appellant’s Br. at 12.) On these facts, we disagree.


        The stipulation concerning Trooper Nathalang’s radar track was plainly relevant in
determining whether the Zuma’s maximum design speed exceeded twenty-five miles per hour,
because it had at least some tendency to make the existence of that fact more probable than it
would be without the evidence. See Ind. Evidence Rule 401. Lock, though, argues that there
was no evidence as to the Zuma’s condition following this episode, nor any technical evidence as
to the manufacturer’s specifications, nor was there evidence that Lock had modified the Zuma in
any way. (Appellant’s Br. at 3, 8.)


        But as we have said, in reviewing the sufficiency of the evidence supporting a conviction
it is not necessary for that evidence to overcome every conceivable hypothesis of innocence, and
we look only at the probative evidence supporting the conviction.5 And so on the basis of a
stipulation that the Zuma was traveling forty-three miles per hour—and in the face of no rebuttal
evidence at all—it is impossible to claim that no reasonable fact-finder could find beyond a




5
  Moreover, Lock does not point to affirmative evidence presenting a hypothesis of innocence, but rather
to a vacuum in which he presented no evidence and now challenges the State for not actively rebutting his
non-evidence. Even if our standard of review were not clear in looking only to the probative evidence
supporting the conviction, we will not—post-conviction—invent hypothetical evidence that a defendant
could have offered—but didn’t—and then overturn the conviction because the State failed to rebut that
evidence.

         Neither does this view impermissibly shift a burden onto Lock to prove that what he drove was a
motorized bicycle. See Lock, 952 N.E.2d at 282–83. It was always the State’s burden to prove that the
Zuma was not a motorized bicycle, and to that aim it submitted evidence of the Zuma’s actual speed on
June 27, 2009. Whether or not it could have submitted additional evidence is not the question; apparently
it believed the radar track was enough—and Lock, in turn, chose not to challenge this evidence (indeed,
he stipulated to it), apparently believing it would not carry the day. That Lock’s strategy failed and the
State’s succeeded does not raise the specter of an unconstitutional burden-shift.



                                                    9
reasonable doubt that the Zuma had a maximum design speed in excess of twenty-five miles per
hour.6




                                               Conclusion


         Accordingly, we affirm Lock’s conviction and sentence.


Dickson, C.J., Sullivan, and David, JJ., concur.
Rucker, J., dissents with separate opinion.




6
  Accord Baird v. State, 955 N.E.2d 845, 848 (Ind. Ct. App. 2011) (“[i]t could reasonably be determined
that a vehicle capable of going sixty miles per hour has a maximum design speed of more than twenty-
five miles per hour on a flat surface”); Annis v. State, 917 N.E.2d 722, 725 (Ind. Ct. App. 2009) (“Based
on this evidence, the scooter was a self-propelled vehicle that was capable of exceeding twenty-five miles
per hour on an uphill surface, let alone a flat surface, and had a cylinder capacity greater than fifty cubic
centimeters.”). Though both Baird and Annis had additional evidence (in Baird, in fact, there was even
conflicting evidence) showing the particular devices failed the various requirements of Section 9-13-2-
109, in both cases the Court of Appeals drew particular attention to the fact that the defendants were
driving at speeds in excess of twenty-five miles per hour at the time they were pulled over. Baird, 955
N.E.2d at 848; Annis, 917 N.E.2d at 725; see also Lock, 952 N.E.2d at 283–84 (Baker, J., dissenting).
These cases do not reflect unreasonable speculation—they reflect the possibility of a reasonable
inference, which is all that is required.



                                                     10
Rucker, Justice, dissenting.


       Because I believe the State did not prove the elements of Class D felony operating a
vehicle while suspended, I would reverse the trial court and not reach the constitutional issue.


       Indiana Code section 9-30-10-16 provides in relevant part, “A person who operates a
motor vehicle . . . while the person’s driving privileges are validly suspended . . . commits a
Class D felony.” In turn a “motor vehicle” is defined as a “vehicle that is self-propelled,” Ind.
Code § 9-13-2-105(a); but, for purposes of Indiana Code section 9-30-10-16, a motor vehicle
“does not include a motorized bicycle.” I.C. § 9-13-2-105(d). Among other things a “motorized
bicycle” is a vehicle with “[a] maximum design speed of not more than twenty-five (25) miles
per hour on a flat surface.” I.C. § 9-13-2-109(3).


       If the vehicle Lock was operating qualifies as a “motorized bicycle” then he was not
operating a “motor vehicle” for purposes of the driving while suspended statute. We are thus
required to determine what is meant by “maximum design speed.” The phrase is not defined by
statute and can fairly be interpreted as ambiguous. For example does it mean as the majority
suggests, “the original manufacturer’s maximum design speed, but also encompasses any
subsequent modifications or redesigns”? Slip op. at 7. Or does it mean as Lock suggests that the
vehicle, “was created with a particular purpose or scheme to the effect that the Zuma would
exceed 25 miles per hour on any given day”? Slip op. at 9 (quoting Appellant’s Br. at 12).
Another possibility is the maximum speed at which a motor vehicle can be operated safely on a
road in perfect condition. See McGraw Hill Dictionary of Scientific & Technical Terms 580 (6th
ed. 2003).


       “In construing statutes, words and phrases will be taken in their plain or ordinary and
usual sense unless a different purpose is clearly manifest by the statute itself, but technical words
and phrases having a peculiar and appropriate meaning in law shall be understood according to
their technical import.” George v. Nat’l Collegiate Athletic Ass’n, 945 N.E.2d 150, 156 n.8 (Ind.
2011) (quoting Ind. Dep’t of State Revenue v. Colpaert Realty Corp., 109 N.E.2d 415, 418-19
(Ind. 1952)). In this case the majority appears to apply the “plain or ordinary” meaning
component of the foregoing rule. See slip op. at 6 n.3. But I am not sure this is adequate to the
task. First, it appears to me that “maximum design speed” is a technical phrase. However
neither party provides us with any guidance of the phrase’s technical import or how the phrase is
used in the auto manufacturing industry. Second, as a matter of statutory interpretation it is
obvious the Legislature decided that not all vehicles require an operator’s license for purposes of
the driving while suspended statute. So, it carved out an exception for certain vehicles, namely
motorized bicycles. Applying the maxim that “penal statutes must be construed strictly against
the State,” State v. McGraw, 480 N.E.2d 552, 553 (Ind. 1985), I would read Indiana Code
section 9-13-2-109 evincing the Legislature’s intent to exclude those motorized bicycles which,
among other things, a manufacturer has designed to travel safely at a maximum speed no greater
than twenty-five miles an hour. That is not to say that the vehicle is incapable of traveling in
excess of that speed. Indeed it may very well do so, even if it means damage to the engine or
other component parts.        The salient point however is the maximum speed at which the
manufacturer designed the vehicle to travel.


        The statute being thus construed, the actual speed Lock was traveling has no relevance to
the question of “maximum design speed.” And having introduced no evidence indicating the
speed at which Lock’s vehicle was designed to travel, the State failed to prove Lock was
operating a motor vehicle within the meaning of Indiana Code section 9-30-10-16. Stated
somewhat differently, the State had the burden proving the exception, namely: that the vehicle
Lock was operating was not a motorized bicycle. The State failed to carry its burden.1 I would
therefore reverse Lock’s conviction.




1
 See, e.g., Lyles v. State, __ N.E.2d__, No. 49S02-1201-CR-49, slip op. at 3 n.3 (Ind. June 29, 2012) (
citing Russell v. State, 50 Ind. 174, 174 (1875)). “[I]n determining whether a statutory exception is a
material element or an affirmative defense, we assess the location of the exception relative to the location
of the definition of the principal offense. If the exception is closely connected with the clause creating the
offense, the exception is a material element of that offense and must be proven by the State.” Id. “If,
however, the exception is contained in a subsequent clause or statute, the exception is an affirmative
defense that must be raised by the defendant.” Id. Here the exception was closely connected with the
clause creating the offense.


                                                      2
