OPINION
Aрpellant-defendant Tony E. Robles appeals his convictions for Operating a Motor Vehicle While Intoxicated, 1 a Class A misdemeanor; Driving While Suspended, 2 a Class A infraction; and Speeding, 3 a Class C infraction, claiming that: (1) the evidence was insufficient to support the conviction for driving while suspended; (2) trial counsel was ineffective; (3) the trial court erred in denying Robles the opportunity to make a statement at sentencing; and (4) the trial court failed to state in its sentencing order that Robles could not be imprisoned for failing to pay fines and costs.
FACTS
The facts most favorable to the judgment reveal that at approximately 1:57 a.m. on March 22, 1997, Hendricks County Sheriffs
Ross was charged with speeding, driving while intoxicated and driving while suspended. Following a trial by court which commenced on December 16, 1997, Robles was convicted on all three counts. Robles was then sentenced to 365 days in jail with 357 of those days suspended. Robles also received credit for the two days that he remained in jail following the arrest. The trial court imposed no fines, but ordered Robles to pay court costs, a substance evaluation fee and a probation user’s fee. He now appeals.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence— Driving While Suspended
Robles first contends that the evidence was insufficient to support the conviction for driving while susрended. Specifically, Robles asserts that the conviction for this offense must be set aside because he demonstrated at trial that his driver’s license had been suspended in error by the California Department of Motor Vehicles.
Before a defendant may be сonvicted for driving with a suspended license, the State must prove that he “operate[d] a motor vehicle ... while his driving privileges, license or permit is suspended or revoked.” I.C. § 9-24-18-5(b). However, a defendant may be absolved of criminal liability under this section if he establishes, by a рreponderance of the evidence, that he possessed a valid driver’s license. I.C. § 9-24-18-5(g).
In the instant case, the only evidence the State presented at trial to establish that Robles was driving while suspended was a certified copy of Robles’ California driving record, dated April 3, 1997. Record at 88-90. Attached to the driving record was a copy of a letter sent to Robles on June 16, 1996, from the California Department of Motor Vehicles. That correspondence informed Robles that his driving privileges would be suspended effective November 14, 1996, because of his failure to comply with a child support order. R. at 88. Robles submitted an order of reinstatement from the California Department of Motor Vehicles during his case-in-chief, dated April 4, 1997, just one day after the State had obtained its certified copy оf Robles’ driving record. That order provided that the suspension had “been set aside ... effective Nov. 14, 1996.” R. at 154. While Robles’ copy of the reinstatement order was not certified, the State did not object to its admission into evidence. Additionally, Robles provided a letter signеd by counsel with the California Family Support Division, stating that the suspension had been “submitted in error.” R. at 155-56.
While we adhere to our well-known standard of review which precludes us from reweighing the evidence, it is apparent to us that Robles satisfied his burden of proof under I.C. § 9-34-18-5(g). Specifically, Robles demonstrated by a preponderance of the evidence that his driver’s license was valid when he was charged with driving while suspended on March 22, 1997. Thus, we are compelled to reverse Robles’ conviction for that offense.
II. Ineffective Assistance of Counsel
Robles next contends that trial counsel was ineffective because he did not object at trial to the purported lack of foundation regarding the accuracy of the radar equipment Deputy Morefield used when stopping Robles’ vehicle. Additionally, Robles claims ineffective assistаnce of counsel because he failed to object to the alleged prejudicial testimony of several deputies regarding Robles’ state of intoxication at the time of arrest.
To prevail on a claim of ineffective assistance of counsеl, a defendant must show that (1) counsel’s performance failed to meet an objective standard of reasonableness as measured by predominate professional norms, and (2) such deficient performance so prejudiced the defendant as to deprive him of a fair trial.
Spranger v. State,
B.Radar Equipment
Before the results of a radar test may be admitted into evidence, the State must prove that the equipment was properly operated and regularly tested.
See Charley v. State,
In the instant case, Deputy Morefield testified that the radar was working properly the night that Robles was arrested аnd that it had been calibrated that day. R. at 69. We also note that Robles has made no claim that the radar equipment was inaccurate or unreliable. Thus, Robles has failed to demonstrate that counsel’s objection would have been sustained had one been lodged.
See Timberlake,
C.Prejudicial Testimony
Robles also claims that counsel was ineffective because he failed to object to “highly prejudicial opinion testimony.” Appellant’s Brief at 14. Specifically, he claims that pеrmitting the opinions of three sheriffs deputies as to whether Robles was intoxicated, constituted ineffectiveness of trial counsel.
In support of the contention that such evidence was inadmissible, Robles points to Ind. Evidence Rule 704(b) which provides that “witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.”
At trial, the three sheriffs deputies, who had observed Robles following the arrest, testified it was their opinion that Robles wаs intoxicated. R. at 93, 105, 109. All three based their conclusion upon Robles’ behavior and demeanor, along with their acknowledgment that they had observed other individuals in a state of intoxication. Contrary to Robles’ assertions that such testimony was improper, the deputies wеre not testifying with respect to whether Robles was guilty or innocent of the charged offense. Moreover, this court has recognized that law enforcement testimony regarding an individual’s intoxication is admissible.
Staley v. State,
III. Sentencing Statement
Robles argues that the sentence should be set aside because the trial court failed to grant him an opportunity to speak
To resolve this issue, we first turn to the provisions of our allocution statute, - I.C. § 35-38-1-5 which provides in relevant part that:
The court shall afford counsel for the defendant an opportunity to speak on behalf of the defendant. The defendant may also make a statement personally in his own behalf and, before pronouncing sentence, the court shall ask him whether he wishes to make such a statement.
Here, the record reveals that the trial court did not inquire of Robles or his counsel as to whether either desired to make a statement before the sentence was imposed. Notwithstanding such an omission, Robles made no objection.
We note that in
Fields v. State,
In
Locke v. State,
TV. Imprisonment For Failure To Pay Costs
Finally, Robles contends that because he was determined to be partially indigent at the sentencing hearing, the trial court erroneously failed to state on the record that Robles could not be imprisoned for failing to pay court costs. Thus, Robles maintаins that this cause must be remanded for correction of the sentencing order to expressly reflect that he cannot be imprisoned if he fails to pay those costs.
We initially note that our supreme court has determined that a trial court should state in its sentencing order that a defendant may not be imprisoned for failing to pay a court-imposed fine if it is determined that the defendant is indigent.
Ridley v. State,
Here, the record reflects that no fine was assessed against Robles. Additionally, the trial court conducted an indigency hearing at sentencing and determined that Robles was employed and only partially indigent. R. at 200. The trial judge also ordered Robles to pay a portion of the appellate costs in light of his еmployment and income, notwithstanding the appointment of counsel. R. at 200. After ordering Robles to pay court costs, the trial court granted him nearly seven months in which to pay them. R. at 197. At the time of sentencing, Robles did not allege or make any showing that his financial status might prеvent him from paying those costs. Inasmuch as the trial judge did not find
CONCLUSION
In light of our resolution of the issues set forth above, we conclude that Robles’ conviction for driving while suspended must be vacated, inasmuch as he demonstrated that he possessed a valid license when charged with that offense. Additionally, we note that Robles failed to demonstrate that he received ineffective assistance of trial counsel. We also conclude that the trial court’s failure to ask Robles whether he desired to make a statement prior to the imposition of his sentence was not reversible error, and that this cause need not be remanded for correction of the sentencing order when the trial court did not expressly state that Robles could not be imprisoned if he failed to pay court costs.
Judgment affirmed in part and reversed in part.