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MEMORANDUM DECISION - NOT FOR PUBLICATION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
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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
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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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