*1 (1983), App., but
does not mandate the trial court to assess
attorney fees in the first instance. There
is no abuse of discretion for the trial court
to not do that required which he is not
do.
Remanded and affirmed as modified. NEAL, JJ.,
HOFFMAN and concur. STANEK, Appellant (Defendant Below), Indiana, Appellee
STATE of (Plaintiff Below).
No. 71A03-8710-CR-283. Appeals
Court of
Third District.
1264 light was tail rear a that noticed had he Bend, for Newman, South James Paul out. appellant. see Stanek's to asked Leszez Corporal Anne Gen., Lisa Pearson, Atty. Linley E. a Michi him gave license; Stanek driver's Indianapolis, Gen., Atty. Deputy McCoy, is- which permit temporary gan appellee. sixty expired had and January 1986 in sued comput- a ran Leszez Corporal later. days STATON, Judge. been had that Stanek learned er check li- of driver's by jury a convicted valid was a still Stanek issued his that suspended officer the told vehicle Stanek a cense. had laws.1 of violator habitual wallet an as suspended, was stolen. sentence been two-year His * years.2 for two probation placed on Leszez he was Corporal by check further A of Motor Bureau Indiana the that issues. showed raises Stanek appeal, On f (BMV)had Vehicles Restated, they are: un laws of violator habitual be officer's police a Whether 1. Ed., (Burns Code 1984, 9-12-2-1 IC. der neigh- been had defendant the that that Repl)3 1987 eighteen approximately his for of bor from been had had defendant the implied that years 14, 1996. and, if activity criminal history of by erred court the trial so, whether I. admitting that Testimony Officer's by re- erred court trial the 2. Whether ten- defendant's examina give the direct fusing to During the State's fol on the as Leszez, he testified tion Fact. lows: Mistake you had occasion presented prior to Q. Now the evidence Whether his con- Mr. Stanek? known insufficient trial
viction. sir. Yes A. that? Q. How objects. Overruled.] driving On October the Leszez, re-ask me let Q. Officer in Street on Olive AMC Javelin 1972 his approached you [sic] When question. driving Ol- Bend, While Indiana. South before Mr. Stanek you knew you said stopped Street, ive occasion? Police Bend South of the Leszez J. Thomas gir. Yes seen had Department. inup grew he was because Q. And that inside from an right turn amake same- the light, and reda stopping for without lane 1987). Repl.) under LC. (a) commits (a) LC. LC. That (2) (1) While his tained record commissioner Whenever A 9-12-2; In violation IC. provides, person who statute brings 9-12-2; class D the bureau 35-50-2-7 9-12-3-1 it provides, him appears in shall pertinent felony.... operates a motor restrictions within mail a (Burns (Burns in pertinent the LC. part: the Code Code person's definition imposed under 9-12-1-4, records Ed., Supp. Ed., part: vehicle: driving main- anof 1987 violator violator violator (b) person that is an records son's mailed suspend Thirty Ten Ten [10] Five under under under habitual a notice in [10] of the [30] [5] the thirty years years if the years days after the LC. LC. LC. person's bureau. driving privileges will be [30] under violator 9-12-1-4(b); 9-12-1-4(c); 9-12-1-4(d). if the if the days because driving privileges for: person person is an habitual according to the commissioner section, he shall ... is an habitual is an informs the person - has the he knew the defendant and his address "as a result of several past." encounters grew up Was that he because Such innuendo jury's would leave to the neighborhood same you did? imagination what sort of encounters referring officer was to-and would be Q. In long how had likely more imply that the defendant was having him neighbor- lived the same involved in other criminal activities. *3 hood? Stanek has failed to objects. show how Overruled.] testimony Leszez's any way was in preju- neighborhood personal- I lived in the dicial to his case. the trial court did ly twenty-eight years, for and Marlo by admitting not err portion this Corpo- away lived three blocks for I don't ral Leszez's many years. Eighteen, know how sev- enteen. And do know where he lived IL. specifically? Tendered Instruction Stanek contends that he did not
Q. Where was that? know at the time of his arrest that he was A. Used to be- not allowed to drive in using Michigan driver's license. he con A. He lived at 2580 West Linden Ave- tends that he was entitled following to the nue. instruction: Record at 68-71. The defense of mistake of fact is defined testimony contends that his as follows: should not have been admitted because It is a defense that the who en- Leszez's of the defend- gaged prohibited in the conduct was rea- implied ant and his jury to the sonably mistaken about a matter of stemmed from Stanek's in- negates if the mistake the culpability re- volvement in other criminal activities. He quired for commission of the offense. (1988), then cites App., Gaston v. State 360, 362-8, The reasonable mistake about a fact denied, 451 N.E.2d trans. proposition that evidence of criminal prevented must have the defendant activity by a defendant which is not re- forming the intent to commit the of- duced to a convictionis if inadmissible irrel- fense charged, of which he is or produced evant and only to show the de- knowing charged that the offense unsavory fendant's character. committed, being However, inapplicable Gaston here. being reckless, by law, as defined Clearly, Corporal testimony Leszez's did his conduct. any not include reference to other criminal The State has the disproving burden of performed by acts only Stanek. He testi- beyond a reasonable doubt. fied that he and neighbors Stanek had been Record at 40. for approximately eighteen years. Accord- ing State, was elicited reviewing In the denial of a ten why show the officer checked into the instruction, consider, dered among we must status of Stanek's Indiana driver's things, other sup whether the evidence place-he the first was not aware that ports the instruction. Flowers v. Stote Michigan had moved to and he won- (1985),Ind., Here, 481 N.E.2d why Stanek had a evidence does not the instruction. license. defense, For mistake of fact to be valid argument
Stanek's negate culpability. would be more mistake must serve to suasive had (1985),Ind., testified that Smith v. concurring GARRARD, Presiding Judge, 863.4 part. concurring in result al belief except as to majority I concur with using a in Indiana to drive lowed give refusal of the court's treatment its negate not serve fact as de- mistake of instruction elements There are culpability. fense. motor vehicle the offense as an habitual urges upon us was The mistake (1) operating They are: of law. a mistake laws. It was one of fact. not driving privileges vehicle; (2) while properly Accordingly, the (See 1.C. I.C. 9-12-2-1 by any supported not since it was refused the de showing that 9-12-3-1); (8) a therefore, I, at trial. introduced evidence have reasonably could knew fendant on this issue. reached in the result concur having been of his a result suspended as *4 offend an habitual to be App., 510 (1987),Ind. v. Burdine er. denied. reh.
N.E.2d required for this culpability as an status of one's offense had been that one's Hodge, Jerry How- Beth that status. result of HODGE as a (Plaintiffs Below), Appellants that he not contend ever, as an his status notice of to receive failed traffic violator KINGMAN, Appellee TOWN OF driver's license that his unaware Below). (Defendant suspended. Burdine See had been err did not the trial court Consequently, 23A01-8709-CV-00228. No. instruction. refusing give the tendered Appeals of
Court District. First IIL. Evidence Sufficiency showed that presented at trial
Evidence operat- October Bend, Indiana; in South ing a motor vehicle to be had determined the BMV 9-12, I.C. traffic violator an habitual his Indiana and had
2-1 sent to Sta-
1996; in June of
nek's sup- evidence to sufficient there was Stanek's conviction.
port
MILLER, J., concurs. P.J.,
GARRARD, part concurs opinion. with in result
concurs of fact. Id. about a matter able and and reason- also be honest The mistake must