*1 adequately provided must be taken into account judicially carrying out legislative KUHN, Appellant Richard D. fulfilling public

intent and policy. (Defendant Below), suggest This is not to the statute should impose be read to support liability upon any Ralph NATTA, STATE ex rel. W. VAN gives husband whose wife birth during the Appellee (Plaintiff Below). marriage to a child sired another man. There are instances in which to do so would be to condone adulterous conduct.14 See e.

g., Pilgrim Pilgrim (1947), 75 N.E.2d 159. the facts of this Third District. case are quite distinguishable. R. D. S. took this child into gave his home and her his name with full knowledge biologi- of her Rehearing Denied May 29, 1980. paternity; cal there was no fraud to im- See 404 N.E.2d 1360. pugn the integrity of the marital contract.15 He uncompromisingly accepted the fact of premarital relationship which resulted conception. This should be contrasted to decision, Pilgrim in which this Court

held that under circumstances revealing no

condonation of the adultery, wife’s the hus- support

band’s child should not required. be Pilgrim, supra at 161.

Thus, I would affirm

basis that under these circumstances a lib- interpretation

eral “of a child ... parties

both to the marriage” should be

adopted as consistent with the obvious in-

tent legislature of the in enlarging the cate-

gory of those considered to be “children” public

and as consistent with declared policy children,

favoring support of and integrity family unit. stated,

Differently statutory defini-

tion of interpreted children should be

though public policy wedded concern-

ing the welfare and of the young. (child sup- implication by

14. But see Ind.Code 31-1-11.5-12 discussing § port regard issue, awarded without to marital mis- judge first here did not deter- conduct). presumption legitimacy mine that the was overcome; the court in fact ordered 15. It is because of the absence of in a fraud non-biological paternity to trial types situation such as this one that the two proved. judge deemed solely based his decision separately. gener- cases have been treated public-policy-oriented interpretation ally Am.Jur.2d, (1963 Supp. Bastards 69§ & supra of the statute. See note 13 and accom- 1979). fact, jurisdictions carry some panying text. impose distinction so far as to a conclusive presumption legitimacy. Despite Id.

STATON, Judge. (Kuhn) D. Kuhn adjudged

Richard an habitual traffic offender and his driver’s suspended period license was for a of ten years.1 Upon appeal, Kuhn has raised the following issues for review: (1) Whether the trial court erred in ad- mitting documents of Kuhn’s driving record and abstracts of convic- tions; (2) Whether the trial court properly ad- mitted evidence of upon guilty pleas; based (3) Whether compelled testimony violat- rights; ed Kuhn’s constitutional (4) Whether there was sufficient evi- dence to support We affirm.

I. Admission of Document Kuhn first contends that erred into evidence docu allegedly comporting ments with the (Bums requirements of IC 9-4-13-4 Ed.). disagree. We states, appears “Whenever it from the records person’s maintained in the bureau that a driving brings record him within the defi offender, nition of an habitual traffic 3(a) [9-4-13-3(a)], defined section certify commissioner shall forthwith two copies of that person’s driving record and two copies of all relevant ab stracts of conviction. One [1] record and abstracts shall be certified to attorney-general of the state of Indi ana, one of the record and prose shall be certified to the Geberin, Geberin, county Bowser & War- wherein cuting attorney for the ” saw, appellant. for person resides. . . . Sendak, Gen., argues record and Silk, Kuhn Atty. Theo. L. John K. Gen., conviction must Deputy Atty. Indianapolis, appel- each individual abstract of addition, argues lee. be certified. February 1, 1979, adjudged September 1. On Kuhn was an under the influ- habitual traffic offender under IC 9-4-13-1 to' ence of In accordance with (Bums (Bums Supp.1979). Supp.1979), -18 Code Ed. & The record 1C 9-4-13-10 Code Ed. suspended establishes that Kuhn was for a convicted Kuhn’s driver’s license was period occasions, February years. 1969 to of ten entry record, for each there himself which contravened his constitution- (cid:127) must be an abstract of a conviction. This rights. disagree. al requires. is not what First, compelling that in his statute, construing When testimony, the trial court violated his fifth give underlying Court must effect privilege against amendment self-incrimi- Legislature. intent of the Gonser v. Board very argument nation. This was raised and *3 County (1978), of Commissioners for Owen negative answered in the in Owens v. State Ind.App., 378 N.E.2d 425. We must also (1978), ex rel. Vannatta Ind.App., 382 construe according plain to its 1312, relying upon N.E.2d reasoning the meaning. plainly requires Id. This statute Hardin, supra. whole,

that the certify, commissioner as a the Secondly, defendant’s record and relevant that such com relevant, By abstracts of conviction. pelled testimony violated his ninth amend plainly statute only means that the ab right privacy. supports ment of upon stracts of the convictions which the argument by citing Katz v. United States habitual judgment traffic offender will be 389 footnote 88 S.Ct. Craigo based are needed. As stated in Court, Supreme L.Ed.2d 576. The in an ex rel. Van Natta State analysis purview of the fourth 158, 160, 402: amendment, stated in Katz : “The defendant is entitled to be informed provisions pro- “Other of the Constitution where, when and what court such personal tect privacy from other forms of convictions occurred.” governmental invasion.” requires This statute no more. Id. at at 510. Footnote An examination of the record reveals the pertinent part, states: document here in issue to be a certified extent, “To some the Fifth Amendment of Kuhn’s record and the ab- (five) too ‘reflects the stracts of the conviction of Kuhn Constitution’s concern occasions of the right of influence of Such docu- each individual private ‘to a enclave ” ’ 9-4-13-4, ment supra, satisfied IC and was private where he a lead life.’ Te properly admitted. Shott, han v. 459, 465, 15 L.Ed.2d 453.” II. by There is no mention the Court of the Admission of Convictions ninth amendment. The privacy concern ad- allegation Kuhn raises as his second dressed the Court was under the fifth of error the contention that such, amendment. As that issue was ad- prior erred in evidence of convic dressed and dismissed Owens and upon guilty pleas tions based where it was supra. requisite not established Indiana warnings and constitutional of Kuhn’s IV. essence, rights were made. In Kuhn’s ar gument upon is an attack the validity of his Sufficiency of Evidence such, convictions. As it an imper is allegation final of error is missible collateral attack a con there was not sufficient evidence to viction which this Court will not entertain. of habitual traffic Hardin v. ex rel. Van State Natta offender. Ind.App., 376 N.E.2d 518. (Burns Ed.Supp.1979)

III. states in Compelled Testimony “(a) ‘Habitual traffic offender’ means that he Kuhn’s third compelled allegation testify against of error is period, any person who, within a ten accumulates convictions of the year pur- That is both the type specified in subdivisions number pose and effect the use of the of this definition. (1), (2), determining the ten year period, at in this case. must occur of such offenses least one properly Where the defendant fails to August after prior conviction, object to use of he ^[*] ^[*] ^[*] ^[*] ^[*] ^[*] waives issue. Nichols v. 9, reveal ord 1972; quor on the gularly a vehicle offenses: ing 1969; and the “(2) Three “(A) Violating the same certified that Kuhn (2) March June or in influence of an relevant 17, combination, while incident, 1974; or more IC 9-4-1-54.” 22, 1970; of Kuhn’s intoxicated). dates: convicted of and convictions, intoxicating (5) September (3) (1) February of conviction driving rec- arising out March (operat- sin- 13, li- 487 F.2d 898 and ry made, the court must conduct an evidentia- by Kuhn are without merit. burden ever Estelle mand for a new LaVallee For this hearing majority when, 482 F.2d (5th *4 (2d proof. to determine the error I Cir. Kelley that the here, 1977), Mitchell v. would state has the ultimate although U. other 556 F.2d 1330. How- U. timely objection 472 F.2d 960. S. S. reverse and re- ex rel. (6th errors validity I agree Cir. Lasky (5th assigned 1973), with 1977. This evidence is sufficient su- to sustain

pra. affirm. COMPANY, FINANCE BENEFICIAL HOFFMAN, J., concurs. (One Appellant of Defendants J.,

GARRARD, opinion. dissents with Below), GARRARD, Presiding Judge, dissenting. BENDER LUMBER respectfully majority’s dissent from the WEGMILLER I COMPANY, INC., Appellee Kuhn’s The trial

affirmance of Below), (Plaintiff prejudicial when it court committed error objections summarily denied Kuhn’s to. use of his convictions obtained Cheryl Myers, Myers, Brown A. L. objection pleas. His guilty asserted County Savings and Loan Asso- Federal pleas unconstitutionally were obtained.1 County, ciation, Treasurer of Brown See, g., Boykin e. Alabama Below). (Defendants Appellees 274. 89 S.Ct. U.S. citing ex majority, Hardin v. State Ind.App., rel. Van Natta impermissible Fourth District. terms this an collateral judgments. disagree.2 I attack constitutionally A invalid conviction Rehearing Denied May enhance punishment

not be used to or es N.E.2d 1150. guilt. tablish Tucker 443, 92 Bur L.Ed.2d gett v. Texas opinion pleas in Hardin does not set forth the

1. Kuhn also asserts were obtained 2. The sufficiently identify objec- to the mandates 35-4.1-1-3. To the claimed violation of of IC facts requirements ex- I be- extent the of that statute tions to convictions. opinion applica- rights, apart I must lieve the be restricted ist constitutional infirmity join finding attempt- no tion where would improper. attack claimed. ed collateral