OPINION
Case Summary
Sаmuel Fonner (“Fonner”) appeals his conviction for Operating a Motor Vehicle while Privileges are Forfeited for Life, a Class C felony, claiming that the evidence is insufficient to suрport his conviction. He also argues that his sentence is inappropriate in light of the nature of his offense and his character. Finding that there is sufficient evidence to support Fon-ner’s conviction and that his sentence is not inappropriate, we affirm the judgment of the trial court.
Facts and Procedural History
The facts most favorable to the verdict reveal that on the evening of August 28, 2006, Officer Glenn Geisser (“Officer Geis-ser”) of the Indianapolis Police Department observed a green Chrysler LeBaron (“LeBaron”) drive too fast and hit the median. Officer Geisser never lеt the Le-Baron out of his sight. He followed the car and turned on his spotlight and emergency lights to initiate a traffic stop. According to Officer Geisser, there was only one person in the car.' As the LeBaron proceeded down Berwick Street, Officer Geisser was no more than a car length behind it. When the car pulled into a driveway, Officer Geisser pulled up alongsidе the driver’s side door because he thought the driver would attempt to run. At this point, Officer Geisser approached the car, told the driver to remain inside, identified the driver as Fonner, and ran his information through the Bureau of Motor Vehicles database. Because Officer Geisser found that Fonner’s license had been forfeited for life, he ticketed him.
On August 30, 2006, the State charged Fonner with Operating a Motor Vehicle while Privileges are Forfeited for Life, a Class C Felony. 1 A jury found Fonner guilty as charged. Subsequently, the trial court sentenced Fonner to four years in the Indiаna Department of Correction (“DOC”). Fonner now appeals.
Discussion and Decision
On appeal, Fonner raises two issues. First, he contends that the evidence is insufficient to support his conviction for Operating a Motor Vehicle while Privileges are Forfeited for Life. Second, Fonner contends that his sentence is inappropriate in light of the nature of his offense and his chаracter. We address each issue in turn.
I. Sufficiency of Evidence
Fonner first contends that the evidence is insufficient to support his conviction. “Upon a challenge to the sufficiency of evidence to suрport a conviction, a reviewing court does not reweigh the evidence or judge the credibility of the witnesses.... ”
McHenry v. State,
In order to prove that Fonner was guilty of Operating a Motor Vehicle while Privileges are Forfeited for Life, the State had to prove that Fonner was driving when his license had been forfeited for life. Ind.Code § 9-30-10-17. In arguing that
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the evidence is insufficient, Fonner invokes the incredible dubiosity rule by arguing that Officer Gеisser’s testimony is inconsistent. This rule provides, “If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s сonviction may be reversed.”
Fajardo v. State,
At trial, Officer Geisser testified that he never lost sight of the LeBaron following his observation of the initial traffic violation. He also testified that he could see that there was only one person in the car because of his spotlight and emergency lights and that Fonner was that person. In challenging Officer Geisser’s testimony, Fonner essеntially argues that another witness presented a different version of events and that Officer Geisser provided inconsistent testimony, such as describing the night as “absolutely dark” but claiming that he could see into the car and identifying the wrong driveway both in his police report and during cross-examination. However, the jury was free to believe that with his lighting, Officer Geisser could see inside the ear despite the dark evening. Also, although Officer Geisser did make a mistake regarding the address of the driveway and the side of the street to which the car pulled, his testimony still established the necessary elements of the offense. Given the above evidence, Fon-ner has failed to prove that Officer Geis-ser’s testimony is incredibly dubious. As such, Fonner’s arguments are merely an invitаtion for us to reweigh the evidence, which we will not do. The jury chose to believe Officer Geisser’s account. Thus, there is sufficient evidence to support Fon-ner’s conviction for Operating a Motor Vehicle while Privileges are Forfeited for Life.
II. Appropriateness of Sentence
Fonner also contends that his sentence is inappropriate in light of the nature of his offense and his charaсter under Indiana Appellate Rule 7(B), which provides, “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sеntence is inappropriate in light of the nature of the offense and the character of the offender.” “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.”
Purvis v. State,
On appeal, Fonner points out that he “does not challenge the fact that he got an advisory sentence, but asks the court to consider the appropriateness of placement in the Department of Correction.” Appellant’s Br. p. 11. The location where a sentence is to be served is an appropriate focus for application of our reviеw and revise authority.
Biddinger v. State,
Here, the record shows that Fon-ner asked the trial court to place him on supervised day reporting. The trial court denied the request, citing Fonner’s continuous record of vehicle-related misdemean- or and felony convictions over a fourteen-year periоd and the failure of a previous community corrections placement, declaring, “because I find that an alternate form of incarceration is unlikely to assist you in changing your bеhavior, because you’ve had the benefit of almost every other kind of alternate incarceration I execute that sentence to the Indiana Department of Corrеction.” Tr. p. 125. After due consideration of the trial court’s decision, we cannot say that Fonner’s placement in the DOC is inappropriate.
Fonner also appears to сomplain about the length of his sentence by arguing that because Operating a Motor Vehicle while Privileges are Forfeited for Life is a status offense, he should have receivеd a shorter sentence. However, just as a trial court cannot use the essential elements of an offense to find aggravating circumstances,
see Hall v. State,
Although there is nothing particularly egregious about the nature of the offense, Fonner’s character proves otherwise. He has sеveral prior convictions, including Operating a Motor Vehicle while Intoxicated, as a Class A misdemeanor, Operating a Motor Vehicle while Intoxicated with a Previous Convictiоn, a Class D felony, Operating a Vehicle while a Habitual Traffic Offender, a Class D felony, and a previous conviction for the precise offense at issue, Operating a Motor Vehicle while Privileges are Forfeited for Life. In sum, Fonner has not carried his burden of persuading this Court that the location of his sentence is inappropriate based upon his character and the nature of the offense he committed.
Affirmed.
Notes
. Ind.Code § 9-30-10-17.