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
                                                     Dec 31 2013, 9:32 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                               GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana
                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHA SEYMOUR,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )         No. 49A05-1305-CR-218
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Lisa F. Borges, Judge
                            Cause No. 49G04-1109-FA-68656



                                      December 31, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Micha Seymour appeals his adjudication as an habitual offender following a bench

trial. He presents a single issue for our review, namely, whether the State presented

sufficient evidence to support his adjudication as an habitual offender. We affirm.

                      FACTS AND PROCEDURAL HISTORY

       Following a jury trial in May 2012, Seymour was convicted of attempted murder,

a Class A felony. The State had alleged that Seymour was an habitual offender, and the

trial court adjudicated him as such following a bench trial. On appeal, this court affirmed

his conviction for attempted murder, but we reversed his adjudication as an habitual

offender for a lack of sufficient evidence. Seymour v. State, No. 49A02-1206-CR-489

(Ind. Ct. App. Dec. 31, 2012) (“Seymour I”). On remand, the trial court adjudicated

Seymour an habitual offender following a bench trial. This appeal ensued.

                            DISCUSSION AND DECISION

       Seymour contends that the State presented insufficient evidence to support his

adjudication as an habitual offender. We set out the applicable standard of review in

Seymour I:

       When reviewing a claim of insufficient evidence, we do not reweigh the
       evidence. Ramsey v. State, 853 N.E.2d 491, 497 (Ind. Ct. App. 2006),
       trans. denied. Rather, we look to the evidence most favorable to the
       judgment along with all reasonable inferences drawn therefrom. Id. We
       will affirm a judgment if it is supported by substantial evidence of
       probative value. Id.

              Pursuant to I.C. § 35-50-2-8(a), a person is an habitual offender if
       the finder of fact determines the State has proven beyond a reasonable
       doubt that the defendant has accumulated two prior unrelated felony
       convictions. A person has accumulated two prior unrelated felony


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      convictions only if the second prior unrelated felony conviction was
      committed after sentencing for the first prior unrelated felony conviction,
      and the offense for which the State seeks to have the person sentenced as a
      habitual offender was committed after sentencing for the second prior
      unrelated felony conviction. I.C § 35-50-2-8(c). Failure to prove that the
      second felony was unrelated to the first felony in that it was committed
      subsequent to the date of the sentencing for the first requires that the
      habitual offender determination be vacated. McManomy v. State, 751
      N.E.2d 291, 292-93 (Ind. Ct. App. 2001).

Slip op. at *3 (emphasis added).

      Here, the State presented evidence that Seymour has two prior felony convictions:

Class C felony carrying a handgun without a license in 2002 under Cause Number

49G06-0209-FC-236354 and Class D felony resisting law enforcement in 2010 under

Cause Number 49F18-0912-FD-102146. Seymour concedes that the State presented

sufficient evidence that he was the person convicted in each case, but he maintains that

the State failed to prove the date that he committed the offense of resisting law

enforcement. Thus, Seymour asserts that the State did not prove that the second felony

was committed subsequent to the date of sentencing for the first. We cannot agree.

      The State presented evidence that Seymour was sentenced for his first prior

felony, carrying a handgun without a license, on November 21, 2002. And the State

presented evidence that Seymour committed the second felony offense, resisting law

enforcement, on December 12, 2009. That evidence came in the form of the charging

information for that offense. The State also submitted as evidence of that conviction the

abstract of judgment and the order of judgment of conviction.

      On appeal, Seymour maintains that




                                           3
       neither the Charging Information, the Abstract of Judgment, nor the Order
       of Judgment of Conviction establish the exact date Seymour engaged in the
       conduct he later pleaded guilty to. Put another way, there is no evidence in
       the record that the factual basis established when Seymour pleaded guilty to
       Resisting Law Enforcement included the same offense date alleged in the
       Charging Information or any date, for that matter.

              Certainly, a factfinder is permitted to draw reasonable inferences
       from the evidence presented and this Court should not reweigh evidence.
       However, inferring that Seymour committed Resisting Law Enforcement
       on or after a certain date, without knowing that he actually pleaded guilty to
       committing the offense on or after a certain date, is not reasonable. The
       fact that the Charging Information sets out a specific date should not be
       dispositive. The charge could have been amended after it was initially filed
       or the plea agreement could have established a different offense date or the
       factual basis could have established a different date. Indeed, the
       Information itself shows not an exact date, but an approximate date (“on or
       about December 12, 2009”). Without evidence of what offense date
       Seymour admitted to and was, therefore, convicted for, the State’s evidence
       was insufficient to prove beyond a reasonable doubt that Seymour was an
       habitual offender.

Appellant’s Brief at 5 (citation omitted).

       First, our supreme court has observed that the phrase “on or about” with reference

to a date is “common practice for prosecutors in drafting charging documents” and that

“its use is mere surplusage.” Webster v. State, 628 N.E.2d 1212, 1215 (Ind. 1994),

abrogated on other grounds.      Accordingly, we reject Seymour’s contention that the

charging information did not state with sufficient particularity the date of the resisting

law enforcement offense.

       Second, Seymour’s contention that the charging information is not dispositive

proof of the date of the offense is grounded in speculation that the charging information

may have been amended or the factual basis for the plea may have established a different

date for the offense. But we hold that the State presented sufficient evidence that


                                             4
Seymour committed the resisting law enforcement offense on December 12, 2009, which

was, in turn, sufficient to prove that he committed that offense after he was sentenced for

his first prior felony conviction on November 21, 2002. See, e.g., id. (holding “only

reasonable inference” established by charging information for conviction following

defendant’s guilty plea was that the commission date followed the sentencing date for the

first predicate offense). The State presented sufficient evidence to support Seymour’s

adjudication as an habitual offender.

       Affirmed.

BAKER, J., and CRONE, J., concur.




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