MEMORANDUM DECISION
                                                                Mar 04 2015, 9:51 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Jodi Kathryn Stein
Indianapolis, Indiana
                                                         Deputy Attorney General
Karen Celestino-Horseman                                 Indianapolis, Indiana
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Erik Toombs,                                             March 4, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1408-CR-524
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable David Hooper,
                                                         Judge Pro Tempore
Appellee-Plaintiff.
                                                         Cause No. 49F18-1403-FD-13042




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-524 | March 4, 2015    Page 1 of 10
[1]   Erik Toombs was convicted after a bench trial of operating a vehicle as a

      habitual traffic violator1 (“HTV”) as a Class D felony. He appeals, raising the

      following restated and consolidated issue: whether the evidence presented at

      trial was sufficient to support Toombs’s conviction.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On March 13, 2014, Indianapolis Metropolitan Police Department Officer

      Cathy Faulk observed that the license plate was expired on the vehicle that

      Toombs was driving and initiated a traffic stop. When Officer Faulk requested

      Toombs’s driver’s license and registration, he gave her his Indiana driver’s

      license bearing the name of “Erik Toombs.” Tr. at 10. Officer Faulk ran

      Toombs’s information through the Bureau of Motor Vehicles (“BMV”) and

      discovered that Toombs’s driving privileges had been suspended because he was

      a HTV. Specifically, his driving privileges had been suspended effective

      November 15, 2013, and a notice of that suspension had been mailed to

      Toombs’s address at 1920 Charles Street in Anderson, Indiana on October 16,

      2013. Officer Faulk arrested Toombs.




      1
        See Ind. Code § 9-30-10-16(a)(1). We note that, effective July 1, 2014, a new version of this statute was
      enacted. Because Toombs committed his crime prior to July 1, 2014, we will apply the statute in effect at the
      time he committed his crime.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-524 | March 4, 2015              Page 2 of 10
[4]   The State charged Toombs with Class D felony operating a vehicle while a

      HTV. At the close of the State’s evidence at Toombs’s bench trial, Toombs

      moved for involuntary dismissal on the basis that the State failed to sufficiently

      identify the BMV record contained in State’s Exhibit 1 with Toombs. The trial

      court denied the motion.


[5]   In his presentation of evidence, Toombs challenged his knowledge of his license

      suspension. His fiancée, Andrea Rule, testified that she and Toombs had lived

      at the address of 1920 Charles Street in Anderson for three years. Tr. at 23.

      Because the street where they resided was busy and narrow, their mailbox was

      frequently knocked down. Rule testified that she usually was the one who

      retrieved the mail, but she could not remember whether the mailbox was

      knocked down in October or November 2013. Id. at 26-27. Rule also could not

      recall whether Toombs received any mail from the BMV during that time, and

      she was not aware that Toombs’s driver’s license had been suspended. Id. at

      27-28. She did testify that, at one point in time when their mailbox had been

      knocked down, the post office had held their mail and delivered it later with a

      note that said “box was down.” Id. at 29, 40. Rule also testified that Toombs

      occasionally received mail from the BMV, but that she did not remember

      specific dates and did not know what was contained in the envelopes. Id. at 30.


[6]   At the conclusion of the trial, the trial court found Toombs guilty of Class D

      felony operating a vehicle as a HTV. Toombs now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-524 | March 4, 2015   Page 3 of 10
                                       Discussion and Decision
[7]   Both of Toombs’s arguments challenge the sufficiency of the evidence – first,

      the sufficiency of the evidence proving that he was a HTV and, second, the

      sufficiency of the evidence of his knowledge that his driving privileges had been

      suspended. Toombs was charged with operating a vehicle as a HTV pursuant

      to Indiana Code section 9-30-10-16, which states in pertinent part:

               (a) A person who operates a motor vehicle:
               (1) while the person’s driving privileges are validly suspended under
               this chapter . . . and the person knows that the person’s driving
               privileges are suspended . . .
               commits a Class D felony.
               (b) Service by the bureau of notice of suspension or restriction of a
               person’s driving privileges under subsection (a)(1) or (a)(2):
               (1) in compliance with section 52 of this chapter; and
               (2) by first class mail to the person at the last address shown for the
               person in the bureau’s records;
               establishes a rebuttable presumption that the person knows that the
               person’s driving privileges are suspended or restricted.
[8]   Toombs initially argues that the trial court erred in denying his motion for

      involuntary dismissal of the charge against him. In particular, he contends that

      the State failed to present sufficient evidence in its case-in-chief to prove that he

      was the same Erik Toombs whose license had been suspended as a HTV.

      Toombs asserts that, at trial, the State did not confirm his social security




      2
       Indiana Code section 9-30-10-5 states in relevant part that if a person’s driving record makes the person a
      HTV, the BMV shall mail notice to the person’s last known address that informs the person that his driving
      privileges will be suspended in thirty days because the person is a HTV.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-524 | March 4, 2015               Page 4 of 10
       number, birth date, driver’s license number, or address to show that he was the

       same Erik Toombs that had his driving privileges suspended.


[9]    Indiana Trial Rule 41(B) states, in pertinent part:

               Involuntary dismissal: Effect thereof. After the plaintiff or party
               with the burden of proof upon an issue, in an action tried by the court
               without a jury, has completed the presentation of his evidence thereon,
               the opposing party, without waiving his right to offer evidence in the
               event the motion is not granted, may move for a dismissal on the
               ground that upon the weight of the evidence and the law there has
               been shown no right to relief. The court as trier of the facts may then
               determine them and render judgment against the plaintiff or may
               decline to render any judgment until the close of all the evidence....
       The grant or denial of a motion to dismiss made under Trial Rule 41(B) is

       reviewed under the clearly erroneous standard. Todd v. State, 900 N.E.2d 776,

       778 (Ind. Ct. App. 2009). In reviewing a motion for involuntary dismissal, this

       court will not reweigh the evidence or judge the credibility of the witnesses. Id.

       We will reverse the trial court only if the evidence is not conflicting and points

       unerringly to a conclusion different from the one reached by the lower court.

       Id. In a criminal action, a defendant’s Trial Rule 41(B) motion is essentially a

       test of the sufficiency of the State’s evidence. Id. (citing Workman v. State, 716

       N.E.2d 445, 448 (Ind. 1999)). Therefore, our review of the denial of the motion

       for involuntary dismissal is limited to the State’s evidence presented during its

       case-in-chief. Id.


[10]   Under Indiana Code section 9-30-3-15,

               In a proceeding, prosecution, or hearing where the prosecuting
               attorney must prove that the defendant had a prior conviction for an

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-524 | March 4, 2015   Page 5 of 10
               offense under this title, the relevant portions of a certified computer
               printout or electronic copy as set forth in IC 9-14-3-4 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.
       Thus, the statute requires that a defendant be identified by his driver’s license or

       by “any other identification method utilized by the bureau.” Ind. Code § 9-30-

       3-15. There is no heightened requirement of identification by fingerprints or

       photographs required by the statute.


[11]   Here, at trial, the evidence presented showed that Officer Faulk identified

       Toombs at trial as the driver of the vehicle she pulled over on March 13, 2014.

       The officer identified him on that date by name from the driver’s license he

       provided to her, Erik Toombs. At that time, she ran the information provided

       to her by Toombs through the BMV and discovered that Toombs’s driving

       record showed that his driving privileges were suspended as a HTV. Pamela

       Walters from the BMV testified regarding Toombs’s BMV driving record and

       stated that the BMV provided Toombs’s driving record to the State based on the

       identifying information given to the BMV by the State. Tr. at 19. She also

       testified that a suspension notice was sent to Toombs in his name to his address

       of 1920 Charles Street in Anderson. Id. at 14-15.


[12]   We conclude that Toombs was sufficiently identified as the same Toombs

       whose driving privileges were suspended as a HTV. Toombs represented

       himself as Erik Tombs to Officer Faulk when he was pulled over for having an


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-524 | March 4, 2015   Page 6 of 10
       expired license plate by providing her with a driver’s license bearing the name

       of Erik Toombs, which is also the name on the BMV records produced at trial.

       State’s Ex. 1. Toombs was identified through the charging information in this

       case as Erik Toombs, a white male with a date of birth of March 14, 1968.

       Appellant’s App. at 17. The BMV records produced at trial as State’s Exhibit 1

       contained the name of Erik D. Toombs and identified this individual as a male

       with a date of birth of March 14, 1968. Additionally, the BMV records

       included a physical description of Toombs, which was a height of five feet,

       eleven inches, weight of 205 pounds, blond hair, and green eyes. State’s Ex. 1.

       The trial court, as the trier of fact, was able to observe Toombs’s physical

       characteristics in the courtroom and make a reasonable inference based on

       those characteristics and the characteristics listed in the BMV records to link

       Toombs with his driving record. Therefore, Toombs’s name, gender, date of

       birth, and physical description were sufficient to identify him with his BMV

       driving records. The trial court’s denial of Toombs’s motion for involuntary

       dismissal was not clearly erroneous.


[13]   Toombs next argues that the evidence presented by the State did not support his

       conviction because the State did not sufficiently prove that Toombs knew his

       driving privileges were suspended. When reviewing the sufficiency of evidence

       supporting a conviction, we will not reweigh the evidence or judge the

       credibility of witnesses. Cruz v. State, 980 N.E.2d 915, 918 (Ind. Ct. App. 2012).

       We must look to the evidence most favorable to the conviction together with all

       reasonable inferences to be drawn from that evidence. Id. We will affirm a


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-524 | March 4, 2015   Page 7 of 10
       conviction if there is substantial evidence of probative value supporting each

       element of the crime from which a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt. Id.


[14]   Toombs contends that, although the State presented evidence showing that the

       notice of suspension was sent by the BMV, the testimony of his fiancée, Rule,

       rebutted the presumption of knowledge under Indiana Code section 9-30-10-

       16(b). He claims that this testimony concerning the disruption of mail service

       due to the mailbox being knocked down frequently was sufficient to rebut the

       presumption of his knowledge of the suspension. Toombs further asserts that,

       after he rebutted the presumption, the State failed to present any more evidence

       to prove Toombs’s knowledge of his suspension and, therefore, failed to present

       sufficient evidence to support his conviction.


[15]   Under Indiana Code section 9-30-10-16(b), a rebuttable presumption of

       knowledge of suspension exists if there is evidence that notice of the suspension

       was served by first class mail to the person at the last known address shown for

       the person in the BMV’s records. The evidence at trial showed that Toombs’s

       driving privileges were suspended effective November 15, 2013, as established

       from his BMV record, and a notice of this suspension was mailed to Toombs’s

       address of 1920 Charles Street in Anderson on October 16, 2013. This was

       Toombs’s last known address in his BMV record, and Rule testified that she

       and Toombs had lived at the address for the past three years. Tr. at 23. This

       evidence created a rebuttable presumption that Toombs had knowledge that his

       driving privileges had been suspended.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-524 | March 4, 2015   Page 8 of 10
[16]   In order to attempt to rebut this presumption, Toombs presented the testimony

       of Rule that the mailbox was frequently hit and knocked down by motorists

       driving on their road and that this was an ongoing problem. Rule testified that,

       when this occurred, they would put the mailbox back up as soon as they saw

       that it was damaged. However, she could not testify as to whether the mailbox

       was down in October or November 2013. Rule also stated that, on one

       occasion when their mailbox was damaged, the post office held their mail and

       later delivered it with a note that referenced the mailbox being down. Although

       Rule testified that there were a few occasions where she did not receive her

       cellphone bill due to the damaged mailbox, she did not state that these

       occasions were in October or November 2013. She also testified that Toombs

       had occasionally received mail from the BMV, but could not remember specific

       dates or months.


[17]   To the extent that Toombs is arguing that the trial court failed to apply this

       evidence to the rebuttable presumption, he is incorrect. The trial court

       questioned Rule extensively about the damaged mailbox and any mail

       disruption it may have caused, considered the testimony when making its

       decision, and determined that this evidence did not rebut the presumption of

       Toombs’s knowledge. Tr. 32-36, 39-40, 48-49. We agree with the trial court.

       Toombs’s evidence of disruption in mail service due to a damaged mailbox did

       not prove that there was a disruption in mail service in October or November

       2013 such that Toombs would not have received the notice sent on October 16,

       2013. Additionally, Rule’s testimony showed that, even if the mailbox had


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-524 | March 4, 2015   Page 9 of 10
       been down in October or November 2013, they put the mailbox back up as

       soon as they noticed it was down, there was no other evidence of other mail

       missing from that time period, and in the past, the post office had held their

       mail when the mailbox was down and delivered it at a later time. We conclude

       that Toombs failed to rebut the presumption that he had knowledge of his HTV

       status and suspension of his driving privileges, and sufficient evidence was

       presented to support his conviction.3


[18]   Affirmed.


       Friedlander, J., and Crone, J., concur.




       3
         In his brief, Toombs relies on Sabir v. Gonzales, 421 F.3d 456 (7th Cir. 2005) in his argument. We find Sabir
       is inapplicable to this case. In that case, the issue was whether Sabir could reopen his immigration hearing
       after affirmatively showing that he did not receive the mailed notice of the hearing, which was returned to the
       immigration court marked “Attempted-Not Known.” Id. at 458. It was not, as Toombs suggests, an issue
       concerning whether Sabir received notice. Here, there was no evidence that the notice sent by the BMV was
       returned to allow Toombs to affirmatively show that he did not receive the notice as Sabir was able to do.
       Therefore, the issue dealt with the court’s ability to reopen Sabir’s case, not whether the disruption in mail
       service was sufficient to excuse his absence from the hearing.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-524 | March 4, 2015              Page 10 of 10
