MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 15 2017, 6:46 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
Nancy A. McCaslin Curtis T. Hill, Jr.
McCaslin & McCaslin Attorney General of Indiana
Elkhart, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charmae L. Lesiewicz, March 15, 2017
Appellant-Defendant, Court of Appeals Case No.
20A03-1610-CR-2320
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Charles Carter
Appellee-Plaintiff. Wicks, Judge
Trial Court Cause No.
20D05-1502-CM-205
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2320 | March 15, 2017 Page 1 of 10
Case Summary
[1] Charmae Lesiewicz (“Lesiewicz”) was convicted in absentia after a jury trial of
Operating a Motor Vehicle while Privileges Are Suspended, as a Class A
misdemeanor.1 She now appeals.
[2] We affirm.
Issues
[3] Lesiewicz presents three issues for our review. We consolidate these into the
following two issues:
I. Whether the trial court abused its discretion when it did
not grant a motion for a continuance of the trial; and
II. Whether there was sufficient evidence to sustain the
conviction.
Facts and Procedural History
[4] On December 9, 2014, Lesiewicz was driving her car in Bristol, in Elkhart
County. Lesiewicz’s driving privileges had been suspended, and in 2011 she
had been adjudicated as having committed the infraction of Operating a Motor
Vehicle while Privileges Are Suspended.
1
Ind. Code § 9-24-19-2.
Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2320 | March 15, 2017 Page 2 of 10
[5] Officer Cory Mosher (“Officer Mosher”) was on duty on the afternoon of
December 9, 2014, and heard Lesiewicz’s vehicle, which sounded to him as
though it had a defective or no exhaust system. Officer Mosher began to follow
the vehicle and while doing so, he was unable to see the vehicle’s license plate.
Officer Mosher activated his squad car’s lights and initiated the traffic stop.
[6] When Officer Mosher reached the car, he found it occupied only by its driver,
who provided the vehicle’s registration and State of Indiana photograph
identification card identifying the driver as Lesiewicz. No driver’s license was
presented to Mosher. Lesiewicz explained to Officer Mosher that her driving
privileges were suspended.
[7] Officer Mosher submitted the information Lesiewicz provided him to an
Indiana Bureau of Motor Vehicles (“BMV”) database, which confirmed
Lesiewicz’s statements concerning the suspension of her driver’s license.
Officer Mosher subsequently placed Lesiewicz under arrest and ordered her
vehicle towed.
[8] On February 9, 2015, the State charged Lesiewicz with Operating a Motor
Vehicle while Privileges Are Suspended.
[9] On July 22, 2015, a hearing was conducted, during which Lesiewicz requested
a jury trial. During the hearing, a jury trial was scheduled for November 12,
2015, and the trial court instructed Lesiewicz that she needed to be present that
day and that, if she was not, the trial could proceed in her absence.
Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2320 | March 15, 2017 Page 3 of 10
[10] A jury trial was conducted as scheduled on November 12, 2015. Lesiewicz did
not appear in person at the trial, and her trial counsel moved for a continuance.
The trial court denied the motion, and the trial proceeded with Lesiewicz in
absentia. At the conclusion of the trial, the jury found Lesiewicz guilty as
charged.
[11] A sentencing hearing was scheduled for December 9, 2015. Lesiewicz did not
attend the sentencing hearing. The trial court entered a judgment of conviction
against Lesiewicz and issued a bench warrant for Lesiewicz’s arrest, but
declined to sentence Lesiewicz in her absence.
[12] On August 23, 2016, the bench warrant was served and Lesiewicz was arrested.
On September 21, 2016, a sentencing hearing was conducted, at which the trial
court sentenced Lesiewicz to 360 days imprisonment with 180 days suspended
and thirty days of credit time.
[13] This appeal ensued.
Discussion and Decision
Continuance and Trial In Absentia
[14] Lesiewicz, who was tried in absentia, contends that the trial court abused its
discretion when it denied her trial counsel’s motion for a continuance to permit
her to attend the trial. The United States Constitution and the Indiana
Constitution both afford defendants in a criminal proceeding the right to be
present at all stages of the trial. U.S. Const. amend. VI; Ind. Const. art. 1, § 13.
Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2320 | March 15, 2017 Page 4 of 10
If a defendant knowingly and voluntarily waives that right, however, trial may
occur in absentia. Jackson v. State, 868 N.E.2d 494, 498 (Ind. 2007). As the
Indiana Supreme Court has stated:
When a defendant fails to appear for trial and fails to notify the
trial court or provide it with an explanation of his absence, the
trial court may conclude that defendant’s absence is knowing and
voluntary and proceed with trial when there is evidence that the
defendant knew of his scheduled trial date.
Id. (quoting Freeman v. State, 541 N.E.2d 533, 535 (Ind. 1989)).
[15] “The best evidence that a defendant knowingly and voluntarily waived his or
her right to be present at trial is ‘the defendant’s presence in court on the day
the matter is set for trial.’” Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind.
1997). Thus, when a defendant knows of the trial date but fails to appear, the
trial court may presume that the defendant knowingly and voluntarily waived
the right to be present at the trial. Brown v. State, 839 N.E.2d 225, 227 (Ind. Ct.
App. 2005), trans. denied. However, “waiver can also be implied when a
defendant is voluntarily absent from the trial.” Hagenmeyer v. State, 683 N.E.2d
629, 630 (Ind. Ct. App. 1997) (citing James v. State, 613 N.E.2d 15, 24 (Ind.
1993)). Further, “a defendant who has been tried in absentia ‘must be afforded
an opportunity to explain his absence and thereby rebut the initial presumption
of waiver.’” Brown, 839 N.E.2d at 227. Upon appellate review, we look to the
entire record to determine whether waiver of the right to be present at trial was
voluntary, knowing, and intelligent. Id. at 228.
Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2320 | March 15, 2017 Page 5 of 10
[16] On July 22, 2015, a pretrial hearing was conducted at which a jury trial date
was set. Lesiewicz was personally present at the hearing and was represented
by counsel. Her case was set for a jury trial to be conducted on November 12,
2015. The trial court noted that Lesiewicz’s case was the second trial setting for
that day and instructed her to remain in contact with her attorney. The court
also stated, “You understand if you don’t show up and the case goes to trial, the
case will be tried in your absence? That could be to your detriment if you’re not
here to present your side of the story.” (Tr. at 21-22.) Lesiewicz verbally
acknowledged the trial court’s admonition at the close of the hearing.
[17] On the day of trial, November 12, 2015, Lesiewicz did not appear in person.
Trial counsel moved for a continuance. Counsel stated that he had left
Lesiewicz a voicemail message a week prior to the trial, and that Lesiewicz had
left him several voicemail messages stating that she would be unable to travel
from her Grand Rapids, Michigan, home to Elkhart for trial because she could
not afford a bus ticket. Trial counsel acknowledged that he had informed
Lesiewicz of the trial date, had told her “that she needed to be here on the 12 th,”
and did not tell her that there had been a delay or reprieve from trial. (Tr. at
32.) The trial court then denied the motion for a continuance.
[18] On appeal, Lesiewicz notes that while she received verbal notice from the trial
court and voicemail from counsel, she was not presented with a written trial
date notice for which she could have submitted a signed acknowledgment. She
acknowledges that counsel did not tell her she could disregard the trial date, but
notes that the court observed at one point that because her trial was the second
Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2320 | March 15, 2017 Page 6 of 10
setting on November 12, 2015, “‘there was a good chance that she [might have
been] congested out’” by another case. (Tr. at 11.) There is no indication in the
record that Lesiewicz provided any explanation as to why she did not plan to
attend the trial—she simply stated that she lacked transportation from
Michigan.
[19] Given this record, which includes clear communication from the trial court
several months in advance of the trial date, advance notice and reminder from
counsel the week prior to trial, and no additional explanation for the absence,
we cannot conclude that the trial court abused its discretion when it denied the
motion for a continuance.
Sufficiency
[20] Lesiewicz also challenges the trial court’s denial of her motion for judgment on
the evidence and the sufficiency of the evidence. We review these types of
challenges under the same standard—that of a challenge to the sufficiency of
the evidence. Jones v. State, 472 N.E.2d 1255, 1259 (Ind. 1985).
[21] Our standard of review in such cases is well settled. We consider only the
probative evidence and reasonable inferences supporting the verdict. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of
witnesses or reweigh evidence. Id. We will affirm the conviction unless “no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.
2000)). “The evidence is sufficient if an inference may reasonably be drawn
Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2320 | March 15, 2017 Page 7 of 10
from it to support the verdict.” Id. at 147 (quoting Pickens v. State, 751 N.E.2d
331, 334 (Ind. Ct. App. 2001)).
[22] To convict Lesiewicz of Operating a Motor Vehicle while Privileges Are
Suspended, as charged, the State was required to prove beyond a reasonable
doubt that Lesiewicz operated a motor vehicle while her driving privileges or
license was suspended within less than ten years after the date of a prior
unrelated violation of either Indiana Code section 9-24-19-1 or section 9-24-19-
2. See I.C. § 9-24-19-2; App’x Vol. 2 at 10.
[23] Lesiewicz’s challenge centers on whether the evidence at trial was sufficient to
establish that she was the person identified in the Bureau of Motor Vehicles
records used to support the conviction. At trial, Lesiewicz argued that “the
State ‘has to provide some kind of either certified booking photo or something
indicating that it’s the same person.’” (Appellant’s Br. at 13, quoting Tr. at 99.)
She renews that argument on appeal, and further draws our attention to facets
of Officer Mosher’s testimony that she suggests undermine the conviction.
[24] Lesiewicz is correct that paper records alone are insufficient to support a
conviction of this type. “In recidivist proceedings, a mere document relating to
a conviction of one with the same name as the defendant will not suffice to
demonstrate that the defendant was, in fact, the person convicted of the prior
offense.” Sullivan v. State, 517 N.E.2d 1251, 1253-54 (Ind. Ct. App. 1988), trans.
denied. However, our supreme court has stated that “it is not necessary that a
defendant be pointed out in the presence of the jury as the person who
Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2320 | March 15, 2017 Page 8 of 10
committed the crime,” so long as there is sufficient evidence from which the
jury could deduce that the defendant was the perpetrator. Murphy v. State, 555
N.E.2d 127, 129 (Ind. 1990).
[25] The conviction here rests upon more than the paper records from the BMV.
Officer Mosher testified that on December 9, 2014, he heard and then saw a
vehicle with a noisy exhaust system. Upon observing the vehicle, he could not
see its license plate, and decided to execute a traffic stop. The driver of the
vehicle identified herself as Lesiewicz and presented a vehicle registration and
Indiana photographic identification card bearing Lesiewicz’s name. The driver
acknowledged her identity and that she had no driver’s license because it had
been suspended. When Officer Mosher used BMV databases to verify
Lesiewicz’s identity, the databases confirmed the driver’s statements concerning
previously having had driving privileges suspended in Indiana. All of that
information matched the information presented at trial in the form of BMV-
certified driving records.
[26] Officer Mosher’s testimony that all the records matched to the driver who
identified herself as Lesiewicz, together with the printed records admitted at
trial without any objection, is sufficient evidence to establish Lesiewicz’s
identity. To the extent Lesiewicz directs us to Officer Mosher not having seen
the precise documents presented at trial or other such matters, we note that
Officer Mosher testified that the documents had the same information he
retrieved from a BMV database on December 9, 2014. To the extent
Lesiewicz’s other arguments request that we reweigh evidence, we are barred
Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2320 | March 15, 2017 Page 9 of 10
from doing so and conclude that there was sufficient evidence to sustain the
conviction.
Conclusion
[27] The trial court did not abuse its discretion when it denied Lesiewicz’s motion
for a continuance in lieu of a trial with Lesiewicz in absentia. There was
sufficient evidence to sustain the conviction.
[28] Affirmed.
Najam, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1610-CR-2320 | March 15, 2017 Page 10 of 10