MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Dec 12 2019, 10:39 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Tyler D. Helmond                                        F. Aaron Negangard
Voyles Vaiana Lukemeyer Baldwin &                       Chief Deputy Attorney General
Webb                                                    Tiffany A. McCoy
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Ronald M. Lemon,                                        December 12, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1603
        v.                                              Appeal from the Vanderburgh
                                                        Superior Court
State of Indiana,                                       The Honorable Jill R. Marcrum,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        82D02-1812-CM-8048



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1603 | December 12, 2019                Page 1 of 6
[1]   Ronald M. Lemon appeals his conviction for driving while suspended. He

      raises one issue which is whether the evidence is sufficient to sustain his

      conviction. We affirm.


                                       Facts and Procedural History

[2]   On December 4, 2018, Vanderburgh County Sheriff’s Sergeant David Eads was

      in an unmarked vehicle and observed Lemon driving a vehicle with expired

      plates and that the style of plate had not been issued for many years. Sergeant

      Eads followed Lemon who drove in a circle, entered a business parking lot,

      exited the vehicle, changed shirts, and began walking away.


[3]   Evansville Police Detective Tony Johnson responded to the area and

      approached Lemon with Sergeant Eads. Lemon identified himself as Ronald

      Lemon, said he was just out for a walk, and denied any involvement in driving

      the vehicle. Sergeant Eads asked him if he was supposed to be driving, and he

      said “no.” Transcript Volume II at 8. Sergeant Eads and another officer

      verified that Lemon’s driving status was suspended. On December 5, 2018, the

      State charged Lemon with Count I, driving while suspended as a class A

      misdemeanor; and Count II, operating with an expired plate as a class C

      infraction. 1




      1
       The State also charged Lemon with Count III, possession of marijuana as a class A misdemeanor, but later
      dismissed the charge. (App. II 14-15; Tr. II 16)

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1603 | December 12, 2019              Page 2 of 6
[4]   At the bench trial, the State presented the testimony of Sergeant Eads and

      Detective Johnson. When asked to identify a document, Sergeant Eads stated:

      “It’s a certified BMV record, driving status for Ronald Maurice Lemon. It

      states his license status is suspended. And I remember at the time, he had 28

      previous suspensions. Seven previous convictions.” Id. The prosecutor moved

      to admit the certified BMV record as State’s Exhibit 1, Lemon’s counsel

      indicated that he believed it was admissible, and the court admitted it without

      objection. The court found Lemon guilty of driving while suspended under

      Count I and sentenced him to sixty days in the Vanderburgh County Jail. 2


                                                     Discussion

[5]   The issue is whether the evidence is sufficient to sustain Lemon’s conviction.

      Lemon argues that the State failed to prove that he was suspended and had a

      prior conviction. He asserts that the State never admitted evidence linking him

      to the BMV record. The State argues that it presented sufficient evidence and

      that Lemon preserved no claim that the BMV record was improperly admitted.


[6]   When reviewing the sufficiency of the evidence to support a conviction,

      appellate courts must consider only the probative evidence and reasonable

      inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

      2007). It is the factfinder’s role, not that of appellate courts, to assess witness




      2
        The court also found Lemon guilty of Count II, operating with an expired plate, but later stated: “I’m going
      to waive the fines and costs and judgment and costs on Count 2.” Transcript Volume II at 17.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1603 | December 12, 2019                  Page 3 of 6
      credibility and weigh the evidence to determine whether it is sufficient to

      support a conviction. Id. Appellate courts, when confronted with conflicting

      evidence, must consider the evidence most favorable to the trial court’s ruling.

      Id. We will affirm unless no reasonable factfinder could find the elements of the

      crime proven beyond a reasonable doubt. Id. The evidence is sufficient if an

      inference may reasonably be drawn from it to support the verdict. Id. at 147.


[7]   The charging information alleged that “Ronald Maurice Lemon, did operate a

      motor vehicle upon a public highway . . . which said Ronald Maurice Lemon’s

      driving privilege, license or permit was suspended or revoked . . . .” Appellant’s

      Appendix Volume II at 14. The offense of driving while suspended as a class A

      misdemeanor is governed by Ind. Code § 9-24-19-2, which provides:


              An individual who:

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

                      (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.


[8]   Ind. Code § 9-30-3-15 provides:


              In a proceeding, prosecution, or hearing where the prosecuting
              attorney must prove that the defendant had a prior conviction for
              an offense under this title, the relevant portions of a certified

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1603 | December 12, 2019   Page 4 of 6
               computer printout or electronic copy made from the records of
               the bureau are admissible as prima facie evidence of the prior
               conviction. However, the prosecuting attorney must establish
               that the document identifies the defendant by the defendant’s
               driver’s license number or by any other identification method
               utilized by the bureau.


[9]    Initially, we note that Lemon did not object to the admission of the certified

       BMV record. Rather, when the court asked Lemon’s counsel if he had a chance

       to look at the BMV record, he stated: “I have, Your Honor, and I believe that

       the State indicated that this is submitted under the business records exception to

       hearsay. And so we believe that it’s admissible.” Transcript Volume II at 9.


[10]   The record reveals that Sergeant Eads asked Lemon if he was supposed to be

       driving, and he said “no.” Id. at 8. Sergeant Eads also testified that “an officer

       there with a computer . . . was able to verify his driving status was suspended.”

       Id. When asked whether he was able to verify that Lemon was suspended, he

       responded affirmatively. Detective Johnson testified that Lemon “was IDed at

       the time and then that’s when his driver status was ran and we confirmed – it

       was confirmed that he was suspended.” Id. at 13. The BMV record lists

       Lemon’s license status as suspended and indicates multiple suspensions and

       convictions.


[11]   Sergeant Eads testified that Lemon identified himself as Ronald Lemon, which

       is the name on the BMV record produced at trial. The charging information

       asserted that Lemon was a male with a specific license number and a date of

       birth of May 14, 1987. The BMV record produced at trial contained the name

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1603 | December 12, 2019   Page 5 of 6
       of Ronald Maurice Lemon and identified this individual as a male with the

       same license number as that in the charging information and a date of birth of

       May 14, 1987. Additionally, the BMV record included a physical description of

       Lemon, which indicated that he had a height of six feet, a weight of 150

       pounds, brown hair, and green eyes. The trial court, as the trier of fact, was

       able to observe Lemon in the courtroom and make a reasonable inference that

       he was the person identified in the BMV record. Based upon our review of the

       evidence, we conclude that the State presented evidence of a probative nature

       from which a trier of fact could find beyond a reasonable doubt that Lemon

       committed the offense of driving while suspended as a class A misdemeanor.


[12]   For the foregoing reasons, we affirm Lemon’s conviction.


[13]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1603 | December 12, 2019   Page 6 of 6
