BROWN, Judge.
Thomas Porter appeals his conviction and sentence for operating a vehicle after a lifetime suspension. Porter raises three issues which we revise and restate as:
We affirm in part, reverse in part, and remand.
On May 12, 2011, Indianapolis Metropolitan Police Officer John Montgomery observed Porter driving a vehicle for approximately one to two minutes. Officer Montgomery could not see the license plate from fifty feet away, initiated a traffic stop, and discovered that Porter was driving while he was suspended for life.
On May 13, 2011, the State charged Porter with operating a motor vehicle while being an habitual traffic violator as a class D felony,
On November 18, 2011, Porter filed a motion to suppress evidence and challenged "each stage of the encounter." Appellant's Appendix at 43. On January 5, 2012, the court held a hearing. The parties focused on the license plate light during the hearing, and the court admitted photographs of the vehicle. The court later stated that "if the pictures show me what the officer saw, then the equipment problem that caused the stop was a justifiable reason for a stop," and then denied Porter's motion. Id. at 52.
On March 1, 2012, the court held a bench trial, and Porter renewed his motion to suppress evidence. Porter introduced the testimony of Joseph Porter, the passenger in the vehicle on the night of the stop, and testimony from Pam Porter, the owner of the vehicle, as well as various photographs of the vehicle. Pam testified that the vehicle was a 1995 Chevy Camaro, that she had owned the vehicle for two and one-half years, and that she had not altered the vehicle since the date of Porter's arrest. When asked to compare one of the photographs of the vehicle with how his eyes saw the vehicle, Joseph testified that the photograph was "really way off" and that he could not see anything on the
Id. at 122-123. The court stated:
Id. at 130. The court denied Porter's motion.
Porter's counsel then stipulated that the testimony of Officer Montgomery from the hearing on the motion to suppress would be admitted for purposes of the trial subject to the objection under Article 1, Section 11, and the Fourth Amendment. The court continued the trial to March 23, 2012.
On March 23, 2012, Porter's counsel made the following statements during closing argument:
Id. at 181-182. The court indicated that it had read the important parts of Bovie, found Porter guilty of Count II, operating a motor vehicle after his license had been forfeited for life as a class C felony, and dismissed Count I based upon double jeopardy concerns.
On April 20, 2012, the court held a sentencing hearing. At the hearing, Porter's counsel informed the court that Porter had an "AMS petition pending in Tippecanoe County" related to an arrest on August 25, 2008, and "[s]ince then the conviction up there was reduced to a misdemeanor." Id. at 189. The State acknowledged that Porter's license was no longer suspended for life because he received alternative
The first issue is whether the trial court abused its discretion by admitting evidence, i.e., Porter's identity as the driver of the vehicle, obtained as a result of a traffic stop. Although Porter originally challenged the admission of the evidence through a motion to suppress, he now challenges the admission of the evidence at trial. Thus, the issue is appropriately framed as whether the trial court abused its discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80 (Ind.Ct.App.2008), trans. denied; Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct.App.2005).
Porter appears to argue that the evidence should have been suppressed because: (A) the license plate light on the vehicle was operational; and (B) Officer Montgomery was not in full uniform or a marked police vehicle.
Porter argues that the traffic stop was without a warrant and the officer's ground for stopping the vehicle based upon the license plate light was improper. Porter also argues that "since the light worked, and there was no evidence [the] vehicle was other than as it had been made or altered in any way, Porter met his burden of proof as to suppression." Appellant's Brief at 13. Porter also refers to Ind. Code § 9-19-6-24 which provides:
The State argues that Officer Montgomery's testimony and the photos are all that are required to support a violation of Ind. Code § 9-19-6-4(e) and to justify a stop on that basis. With respect to Ind.Code § 9-19-6-24, the State asserts that "[b]y its own terms, application of Section 24 does nothing more than exempt a violation of a statute from also being an infraction," and that "[i]t does not purport to negate the violation of the statute." Appellee's Brief at 9. The State contends that subsection 24 "maintains the violation but eliminates the penalty for such a violation." Id.
The Fourth Amendment to the United States Constitution protects an individual's privacy and possessory interests by prohibiting unreasonable searches and seizures.
Because a traffic stop is a seizure under the Fourth Amendment, police may not initiate a stop for any conceivable reason, but must possess at least reasonable suspicion that a traffic law has been violated or that other criminal activity is taking place. Meredith, 906 N.E.2d at 869. "An officer's decision to stop a vehicle is valid so long as his on-the-spot evaluation reasonably suggests that lawbreaking occurred." Id. at 870. "This discretion, however, does not extend to an officer's mistaken belief about what constitutes a violation as a matter of law." Id.
Here, Officer Montgomery initiated a traffic stop because he could not see the license plate from fifty feet away. Ind. Code § 9-19-6-4(e) requires illumination of license plates and provides in part: "Either a tail lamp or a separate lamp must be placed and constructed so as to illuminate the rear registration plate with a white light and make the plate clearly legible from a distance of fifty (50) feet to the rear."
The following exchange occurred during the direct examination of Officer Montgomery:
Transcript at 9-10.
The trial court examined the license plate light and observed that "it couldn't be pointed in any particular direction," Id. at 69, but also stated:
Id. at 130. While Porter introduced photographs of the vehicle, some of the pictures were taken well within fifty feet of the vehicle and at least one of the pictures was from about twenty feet, and the flash from the camera itself illuminated the plate when the picture was taken.
The record reveals evidence that Officer Montgomery had a reasonable and objectively justifiable basis for making the initial traffic stop. Even assuming that Porter's vehicle met federal regulations,
Porter phrases the issue as "[w]hether the trial court clearly erred when it overruled Porter's timely objection that the State did not present any evidence that the police officer who made the traffic stop was in a fully marked car or uniform at the time of the stop." Appellant's Brief at 1. Porter argues that the stop and arrest were illegal and appears to suggest that the trial court abused its discretion by admitting evidence, i.e. Porter's identity as the driver, following the stop of the vehicle based upon Ind.Code § 9-30-2-2.
On appeal, Porter points only to his counsel's statements during closing argument regarding whether the State had established that the arresting officer was in a fully marked vehicle or in uniform as required by Ind.Code § 9-30-2-2. Porter argues that the arrest was in violation of the statute, and the trial court erred when it dismissed counsel's argument by stating: "I've read the important parts of [Bovie]. Anything else?" Appellant's Brief at 13.
The State points out that the probable cause affidavit indicated that Officer Montgomery returned to his fully marked police vehicle after stopping Porter, and acknowledges that the probable cause affidavit does not appear to have been formally admitted as evidence, but argues that "it is equally clear from the multiple references to the document that the parties and the court treated it as though it had been." Appellee's Brief at 12. The State also argues that the fact that Officer Montgomery was in a marked police car is implied by his testimony that he pointed his spotlight at the license plate. The State contends that the "uniform/marked vehicle requirement is pertinent to an inquiry into whether an investigatory stop is licit and no more." Id.
Ind.Code § 9-30-2-2 provides that in order for an officer to make an arrest or issue a traffic information or summons for a violation of a law regulating operation of a motor vehicle, the officer must be either wearing a uniform and badge, or driving a clearly marked police vehicle. Bovie v. State, 760 N.E.2d 1195, 1198 (Ind.Ct.App.2002). Specifically, Ind. Code § 9-30-2-2 provides:
"The purpose of this statute is to protect drivers from police impersonators and to protect officers from resistance should they not be recognized as officers." Ervin v. State, 968 N.E.2d 315, 318 (Ind.Ct.App. 2012). "The statute seeks to help distinguish law enforcement officers from those individuals on our highways who, for illicit purposes, impersonate law enforcement officers." Id. Evidence obtained in an unlawful arrest may be excluded upon proper motion by the defendant. State v. Caplinger, 616 N.E.2d 793, 795 (Ind.Ct.App.
We observe that Porter's motion to suppress did not mention Ind.Code § 9-30-2-2. At the hearing on Porter's motion to suppress, his counsel stated:
Transcript at 39. Based upon these statements, it is unclear whether Porter's counsel was objecting to the admission of the evidence based upon Ind.Code § 9-30-2-2 or whether he waived the issue. See 1A I.L.E. Appeals § 46 (2013) ("[A]n objection sufficient to preserve error on appeal must point out the ground or grounds for the objection in such a manner as to advise the court and the adverse party so that the ruling may be made understandingly and the objection obviated if possible."). Moreover, even assuming that Porter sufficiently objected on this basis at the hearing, at the trial, when discussing Officer Montgomery's testimony from the hearing in which Officer Montgomery identified Porter as the driver of the vehicle, Porter's counsel stipulated that Officer Montgomery's testimony would be admitted for purposes of the trial subject to the objection under Article 1, Section 11, and the Fourth Amendment. However, Porter's counsel did not object under Ind.Code § 9-30-2-2. Under the circumstances, we conclude that Porter waived this issue. See Hollowell v. State, 753 N.E.2d 612, 615-616 (Ind.2001) ("Absent either a ruling admitting evidence accompanied by a timely objection or a ruling excluding evidence accompanied by a proper offer of proof, there is no basis for a claim of error.") (citing Ind. Evidence Rule 103(a)); Wright v. State, 593 N.E.2d 1192, 1194 (Ind.1992) ("When the trial court denies a motion to suppress evidence or takes the motion under advisement, the moving party must renew his objection to admission of the evidence at trial. If the moving party does not object to the evidence at trial, then any error is waived. Alleged error likewise is waived if an appellant states one ground at trial and later states another ground on appeal.") (internal citations omitted), cert. denied, 506 U.S. 1001, 113 S.Ct. 605, 121 L.Ed.2d 540 (1992), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201, 1206-1207 (Ind.2007).
The next issue is whether the court exceeded statutorily prescribed limits when it suspended Porter's driving privileges for life. The State concedes that "[a]s a result of the conversion of [Porter's] most recent felony conviction, [Porter] was subject only to a ten-year suspension at the time of his sentencing in this case." Appellee's Brief at 5. In discussing a reserved question of law, this court has previously held that "entering a judgment of conviction for a class A misdemeanor pursuant to Indiana Code section 35-38-1-1.5 for an offense under Indiana Code section 9-30-10-16 removes the lifetime forfeiture of a defendant's driving privileges." State v. Vankirk, 955 N.E.2d 765, 769 (Ind.Ct.App. 2011), trans. denied. Thus, we conclude that Porter's driving privileges were no longer suspended for life at the time of the sentencing hearing. Accordingly, we turn our attention to whether the trial court had the authority to impose a lifetime suspension for the present offense.
Both parties point to Ind.Code §§ 9-30-10-16 and 17. Ind.Code § 9-30-10-16 is titled "Operating a motor vehicle while privileges are suspended; Class D felony; Class A misdemeanor," and provides:
(Emphasis added). Ind.Code § 9-30-10-17 is titled "Operating motor vehicle while privileges are forfeited for life; Class C felony," and provides in its entirety: "A person who operates a motor vehicle after the person's driving privileges are forfeited for life under section 16 of this chapter, IC 9-4-13-14 (repealed April 1, 1984), or IC 9-12-3-1 (repealed July 1, 1991) commits a Class C felony."
Porter argues that "[b]eyond the rule of construction that places specific statutes ahead of general ones, when a conflict arises over the question of imposing a harsher penalty or a more lenient one, the longstanding Rule of Lenity should be applied." Appellant's Brief at 8. He maintains that he was convicted under Ind. Code § 9-30-10-17, that the statute does not empower the trial court to impose any license suspension, and requests that we vacate his lifetime suspension.
The State concedes that Ind.Code § 9-30-10-17 is silent on imposition of a lifetime suspension, but argues that "the lifetime suspension is an element of the offense under Indiana Code § 9-30-10-17," and that "[i]t would be incongruous in such a case if the court were then directed by the statute to do that which has already been proven beyond a reasonable doubt to have already been done by a previous court." Appellee's Brief at 6. The State observes that the court found sufficient evidence to convict Porter of Count I but dismissed the count based upon double
Trial courts have broad discretion in sentencing, but must act within statutorily prescribed limits. Laux v. State, 821 N.E.2d 816, 818 (Ind.2005). Ind.Code § 9-30-10-17 does not provide for a lifetime license suspension. Mindful that penal statutes should be construed strictly against the State, that ambiguities should be resolved in favor of the accused, and that the judicial function is to apply the laws as enacted by the legislature, we conclude that the trial court exceeded statutory authority and improperly suspended Porter's driving privileges for life.
For the foregoing reasons, we affirm Porter's conviction for operating a vehicle after a lifetime suspension, reverse the trial court's suspension of Porter's driving privileges for life, and remand for proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
BAILEY, J., and VAIDIK, J., concur.
Transcript at 200-203.