Opinion
23A-CR-2953
06-04-2024
Toya Enair Duerson, Appellant-Defendant v. State of Indiana Appellee-Plaintiff
ATTORNEY FOR APPELLANT Matthew J. McGovern Fishers, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Vanderburgh Circuit Court The Honorable David D. Kiely, Judge Trial Court Cause No. 82C01-2201-F2-432
ATTORNEY FOR APPELLANT
Matthew J. McGovern Fishers, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Indiana Attorney General
Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
CRONE, JUDGE
Case Summary
[¶1] Following a jury trial, Toya Duerson was convicted of operating a motor vehicle while privileges are forfeited for life, a level 5 felony. On appeal, Duerson claims that the State presented insufficient evidence to support his conviction, and he asserts fundamental error in the admission of certain evidence. We affirm.
Facts and Procedural History
[¶2] On January 20, 2022, a detective with the Evansville Police Department was watching a residence that was part of an investigation. Upon observing Duerson exit the residence and drive away in a sedan, the detective radioed nearby officers. Responding officers conducted a valid traffic stop of Duerson and an inventory search of his vehicle. No contraband was discovered in the vehicle. However, Drug Task Force Officer John Montgomery walked back along the path that Duerson had just driven and found two bags containing a "tannish, whiteish powder" in the middle of the street. Tr. Vol. 2 at 106. Subsequent testing revealed the powder to be heroin, fentanyl, and tramadol. Id. at 158; Ex. Vol. 3 at 27. Meanwhile, officers obtained and executed a search warrant for Duerson's residence. In one of the bedrooms, officers discovered Duerson's identification card, a digital scale, more than twenty-one grams of a powdery substance, a dust mask, and a baggie. That powder likewise tested positive for heroin, fentanyl, and tramadol. The search of the residence also revealed a second person's identification card and a utility bill in the name of a third person.
[¶3] On January 24, 2022, the State charged Duerson with four counts: level 2 felony dealing in a narcotic drug, level 5 felony operating a motor vehicle while privileges are forfeited for life, level 6 felony neglect of a dependent, and level 6 felony maintaining a common nuisance. In addition, the State filed a habitual offender enhancement. In October 2022, the State dismissed the neglect count and the common nuisance count. Also in October, a jury trial was held. Jurors found Duerson guilty of operating but reached no verdict on dealing. The trial court declared a mistrial on the latter count.
[¶4] In an August 2023 plea agreement, Duerson agreed to plead guilty to dealing in a narcotic drug. The State agreed to a ten-year executed term on the dealing count as well as to a dismissal of the habitual offender enhancement. In November 2023, the trial court sentenced Duerson to ten years of incarceration for the dealing conviction and three years for the operating conviction, to be served concurrently. Duerson appeals.
Discussion and Decision
Section 1 - The State presented sufficient evidence to prove Duerson's status as a habitual traffic violator for life.
[¶5] Duerson challenges the sufficiency of the evidence to support his conviction for operating a motor vehicle while privileges are forfeited for life. "In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses." Morales v. State, 227 N.E.3d 183, 188 (Ind.Ct.App. 2024), trans. denied. "We respect the jury's exclusive province to weigh conflicting evidence, and we consider only the evidence most favorable to its verdict." Id. On appeal, it is "not necessary that the evidence overcome every reasonable hypothesis of innocence." Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We must affirm if the evidence and the reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Anderson v. State, 37 N.E.3d 972, 974 (Ind.Ct.App. 2015), trans. denied.
[¶6] To support Duerson's conviction, the State had to prove that he "operate[d] a motor vehicle after [his] driving privileges [were] forfeited for life[.]" Ind. Code § 9-30-10-17(a)(1). Duerson admits that "there is evidence that [he] operated a motor vehicle" on January 20, 2022. Appellant's Br. at 12. On appeal, however, he asserts that the State did not prove that his privileges were forfeited for life on January 20, 2022. To prove this element, the State introduced Duerson's Indiana Official Driver Record (Record), which was dated January 21, 2022, the day immediately after his arrest.
[¶7] According to the Record, Duerson's "License status" is "Habitual Traffic Violator-Life." Ex. Vol. 3 at 31. A legend attached to the Record gave instructions to the jurors as to how to read the Record. Specifically, it defined "Habitual Traffic Violator-Life" driver's license status to mean "[d]riving privileges are forfeited for life as a habitual traffic violator." Id. at 37. In addition, the Record lists Duerson's various suspensions, including the following entry from Vanderburgh Circuit Court: "OPERATING HTV/FELONY CASE: 82C011203FD00344." Id. at 32. The effective date for that suspension is "08/24/2012," and the expiration date is blank. Id. An asterisk appears next to the entry. The Record provides that an asterisk "indicates active suspension." Id. Thus, the jury reasonably could have inferred that Duerson was suspended for life beginning August 24, 2012, and continuing through January 21, 2022. That time frame would include the January 20, 2022 date of his operating offense.
[¶8] Taken together, this evidence and the reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find that Duerson's privileges were suspended for life on January 20, 2022. As such, Duerson has not demonstrated that the State failed to present sufficient evidence that he was guilty beyond a reasonable doubt of operating a motor vehicle after his driving privileges were forfeited for life.
Of note, defense counsel's opening statement included the following:
I just want you to know, we're not here about the driving. He, you're going to see video of him driving, okay? He is HTV for life. We're not disputing that. At the end of this trial, find him guilty on Count 2, of operating as a habitual traffic violator after his license has suspended for life. This is all about the drugs, not the driving.
. . . .
But at the end of this trial, I am going to come back up here and I'm going to ask you to find Mr. Duerson not guilty on Count 1, but guilty on Count 2 of the driving offense.Tr. Vol. 2 at 102-03. Defense counsel reiterated during closing statement:
First of all, as I stated in my opening statement, we're not here about Count 2, with the driving portion. He's guilty of that. He's been suspended HTV for life. He admits that. So, that's about the last thing I'm going to say about the driving portion of this case. What we are here to talk about is obviously the fentanyl.Id. at 169. Duerson describes these statements as strategic rather than as evidence. Without commenting on such strategy, we agree that opening and closing statements are not evidence. See Luphahla v. Marion Cnty. Sheriff's Dep't, 868 N.E.2d 1155, 1158 (Ind.Ct.App. 2007) ("Generally, an opening statement is not substantive evidence[.]"). Yet, in other contexts, we have concluded that "an attorney can make an admission during opening statement that is binding upon his client and relieves the opposing party of the duty to present evidence on that issue." Lystarczyk v. Smits, 435 N.E.2d 1011, 1014 (Ind.Ct.App. 1982). Incidentally, the Odyssey case management system includes an August 24, 2012 sentencing entry for cause number 82C01-1203-FD-344 that states: "DEFT'S DRIVER'S LICENSE ARE SUSPENDED FOR LIFE."
Section 2 - Duerson has not demonstrated fundamental error in the admission of the unredacted Record.
[¶9] Duerson characterizes the unredacted Record as impermissible misconduct evidence per Evidence Rule 404 and contends that it was irrelevant under Evidence Rule 401 and unfairly prejudicial per Evidence Rule 403. He maintains that the Record "flooded the trial with multiple instances of [his] prior misconduct which included neglecting children and traffic offenses." Appellant's Br. at 17. He claims that such evidence "unquestionably besmirched his character." Id.
[¶10] Ordinarily, decisions as to the admissibility of evidence are within the sound discretion of the trial court, and we will not reverse such decisions absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Spires v. State, 670 N.E.2d 1313, 1315 (Ind.Ct.App. 1996). "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Ind. Evidence Rule 404(b)(1). "The paradigm of such inadmissible evidence is a crime committed on another day in another place, evidence whose only apparent purpose is to prove the defendant is a person who commits crimes." Swanson v. State, 666 N.E.2d 397, 398 (Ind. 1996). "Our analysis of admissibility under Rule 404(b) necessarily incorporates the relevancy test of Rule 401 and the balancing test of Rule 403." Dumes v. State, 718 N.E.2d 1171, 1175 (Ind.Ct.App. 1999), supplemented on reh'g by 723 N.E.2d 460 (Ind.Ct.App. 2000). Thus, when a defendant objects on the ground that the particular evidence would violate Rule 404(b), the trial court must (1) determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Evidence Rule 403. Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997).
[¶11] Here, when the State moved to admit the Record at trial, defense counsel offered no objection. Tr. Vol. 2 at 161. The State did not discuss the Record or highlight any portion of it via testimony. Rather, immediately after the admission of the Record, the State rested. Because Duerson did not object to the admission of the unredacted Record at trial, the trial court did not have an opportunity to conduct a Rule 404(b) analysis. Consequently, Duerson has waived review of the issue on appeal unless he can demonstrate fundamental error. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013) (discussing fundamental error exception to general rule that failure to object at trial constitutes procedural default precluding consideration of issue on appeal). Our supreme court described the fundamental error exception as:
extremely narrow, and [it] applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). "The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process." Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (internal quotation omitted). "This exception is available only in egregious circumstances." Id. (internal quotation omitted).Id.
[¶12] We have held that a trial court committed reversible error when, in a trial for operating a motor vehicle while privileges were forfeited for life, it admitted an inadequately redacted copy of the defendant's driving record, which was "highly prejudicial." Dumes, 718 N.E.2d at 1176. In Dumes, the jury was confronted with whether Dumes was driving on the date of his arrest. Dumes had presented evidence that he was not driving, yet an officer testified to the contrary. Id. "Because of the conflicting testimony of the witnesses regarding the factual background of the arrest, Dumes' credibility was at issue." Id. Explaining our reversal, we stated that the "evidence of Dumes' multiple convictions and license suspensions on his driving record unrelated to the crime with which he [was] currently charged may have resulted in the jury finding [him] guilty based on his character, rather than the evidence presented at trial." Id. That said, because Dumes objected at trial (Id. at 1173), he did not have to demonstrate fundamental error on appeal. Moreover, we noted that "when the only issue before the jury is whether the defendant's license is suspended for life as of the date of his arrest, the introduction of the defendant's prior offenses at trial is harmless error." Id. at 1176 n.5. Viewing that question as a "legal one," we commented that under that scenario, "there is no danger that the jury will convict the defendant on his character rather than for the acts he committed in connection with the charges for which he is being tried." Id.
[¶13] Duerson contends that the trial court committed fundamental error when it admitted the unredacted Record, which included "several unrelated convictions and incidents of misconduct, including criminal convictions and delinquent child support." Appellant's Br. at 14. We disagree. Initially, we observe that the better practice would have been, prior to the Record's admission at trial, to redact any evidence in the Record that was unrelated to Duerson's habitual-traffic-violator-for-life status. However, the admission of the unredacted Record in Duerson's situation is not the type of egregious circumstance that fits within the extremely narrow fundamental error exception.
[¶14] The State did not present a "flood" of evidence about Duerson's prior crimes, wrongs, or bad acts. Duerson's Record was the only evidence submitted by the State that mentioned other prior acts, and the State did not focus on any of them. Moreover, the jury was not faced with determining whether Duerson was driving on January 20, 2022. The evidence indicated that Duerson was driving, and he did not and does not contend otherwise. Therefore, unlike the defendant in Dumes, Duerson's credibility was not at issue, and we see no danger that the jury convicted him based on his character or on the other relatively benign misconduct listed in the Record. The only issue before Duerson's jury was whether his license was suspended for life as of the date of his arrest. This is the precise evidentiary admission situation that Dumes stated would be harmless error. We cannot say that the admission of the unredacted Record, without any other irrelevant character evidence, was so prejudicial that it made it impossible for Duerson to receive a fair trial. See Wilson v. State, 931 N.E.2d 914, 921 (Ind.Ct.App. 2010) (concluding that there was no fundamental error where defendant failed to prove that admission of unredacted BMV record "subjected him to any greater prejudice than ordinary reversible error"), trans. denied. Because Duerson has not demonstrated fundamental error in the Record's admission, we affirm.
The Record includes suspensions for delinquent child support, failures to file insurance, and various driving/operating violations.
As noted previously, even that issue was conceded more than once by the defense, though during opening and closing statements.
[¶15] Affirmed.
Bailey, J., and Pyle, J., concur.