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.
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[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.
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[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.
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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.
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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
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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
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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
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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.
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[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
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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.
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