Jeffrey W. Smith v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Feb 12 2015, 7:03 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey W. Smith, February 12, 2015
Appellant-Defendant, Court of Appeals Case No.
34A02-1402-CR-95
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable Brant J. Parry, Judge
Cause No. 34D02-1209-FD-243
Appellee-Plaintiff
Pyle, Judge.
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Statement of the Case
[1] Jeffrey Smith (“Smith”) appeals his conviction, after a jury trial, for failure to
register as a sex or violent offender, a Class D felony.1 He argues that
insufficient evidence supports his conviction, alleging that the State did not
prove that he had failed to register. Concluding that the State presented
sufficient evidence, we affirm Smith’s conviction.
[2] We affirm.
Issue
[3] Whether sufficient evidence supports Smith’s conviction.
Facts
[4] On May 28, 2002, in Miami County, Smith pled guilty to criminal confinement
as a Class C felony and as a Class D felony. He also pled guilty to battery as a
Class D felony. The trial court sentenced Smith to twelve (12) years in the
Department of Correction and ordered him to register as a violent offender
upon his release because of the Class C felony criminal confinement conviction.
[5] On September 19, 2012, the State charged Smith with failure to register as a sex
or violent offender. The trial court conducted a two-day jury trial on October
1
Ind. Code § 11-8-8-17(a)(1)(2012). We note that, effective July 1, 2014, a new version of this statute was
enacted and that Class D felony failure to register as a sex or violent offender is now a Level 6 felony.
Because Smith committed his crimes in 2012, we will apply the statute in effect at that time.
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29-30, 2013. The State presented its evidence through the testimony of
Lieutenant Kurt Georges (“Lt. Georges”) of the Howard County Sheriff’s
Department. However, a majority of his testimony was inaudible and thus was
not included in the transcript. The jury found Smith guilty as charged. Smith
now appeals.
Decision
[6] Smith argues that insufficient evidence supports his conviction for failure to
register as a sex or violent offender. He argues that there is “no evidence in the
Transcript that he failed to register.” (Smith’s Br. 6).
[7] When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative evidence
and reasonable inferences supporting the verdict. It is the fact-finder’s
role, not that of appellate courts, to assess witness credibility and
weigh the evidence to determine whether it is sufficient to support a
conviction. To preserve this structure, when appellate courts are
confronted with conflicting evidence, they must consider it most
favorably to the trial court’s ruling. Appellate courts affirm the
conviction unless no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. It is therefore not
necessary that the evidence overcome every reasonable hypothesis of
innocence. The evidence is sufficient if an inference may reasonably
be drawn from it to support the verdict.
[8] Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks
and citations omitted).
[9] To convict Smith as charged, the State was required to show that Smith, being a
sex or violent offender, knowingly or intentionally failed to register when he
was required to register. IND. CODE § 11-8-8-17(a)(1).
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[10] Smith appears to argue that the record on appeal lacks sufficient evidence to
sustain his conviction because portions of the transcript showing the offer and
admission of State’s Exhibits two and three are missing. However, the
transcript does show that the trial court published the exhibits to the jury. We
presume that trial courts know and follow the law. Thurman v. State, 793
N.E.2d 318, 321 (Ind. Ct. App. 2003). Hence, we presume that the trial court
would not have published exhibits to the jury if the State did not properly offer
them into evidence. In addition, if there were any errors with the admission of
Exhibits two and three, it was Smith’s responsibility to provide a sufficient
record supporting his claim of error. See Miller v. State, 753 N.E.2d 1284, 1287
(Ind. 2001); see also Ind. Appellate Rule 31 (detailing the procedures for
supplementing missing portions of the transcript). Smith did neither.
Therefore, we turn our attention to the exhibits to complete our review.
[11] Smith’s only claim is that the evidence does not show that he failed to register.
State’s Exhibit two contains a copy of a letter sent to Smith in September 2012
informing him that his registration had lapsed in August 2012. State’s Exhibit
three is a voicemail that Smith left for Lieutenant Georges acknowledging
receipt of the letter, stating that he was not going to register, that the deputies
would have to come and find him, and that he planned to sue the sheriff if they
arrested him. This evidence is sufficient to support the jury’s conclusion that
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Smith failed to register when required. We affirm Smith’s conviction for failure
to register as a sex or violent offender. 2
[12] Affirmed.
Najam, J., and Bailey, J., concur.
2
Smith also advances two additional arguments. First he claims that the “Miami Superior Court I clearly
made errors in its June 18, 2002 sentencing of Smith under 52D07-0104-CF-00043.” (Smith’s Br. 4). Smith
did not appeal his conviction from Miami County. We will not consider this argument now because if an
issue was known and not raised on direct appeal, it is waived. Ben-Yisrayl v. State, 729 N.E.2d 102, 110 (Ind.
2000).
Second, Smith claims that his “obligation to register was limited to I.C. [§] 5-2-12-4, and it was terminated
when I.C. [§] 5-2-12-4 terminated.” (Smith’s Br. 5). In support of this assertion, he cites Hevner v. State, 919
N.E.2d 109 (Ind. 2010) for the proposition that the legislature repealed INDIANA CODE § 5-2-12-4. Smith
omitted part of the sentence he cites. The full sentence reads, “[w]hile Hevner was awaiting trial in 2006, the
Legislature repealed Ind. Code § 5-2-12-4 and recodified the statute at Ind. Code § 11-8-8-4.5.” Id. at 111.
(emphasis added). Moreover, Smith’s argument is equivalent to alleging that the charging information was
defective. If he wanted to raise such an argument, it was his responsibility to file a motion to dismiss under
INDIANA CODE § 35-34-1-4 no later than twenty days after the omnibus date, and failure to do so results in
waiver on appeal unless fundamental error occurred. Sharp v. State, 16 N.E.3d 470, 477-78 (Ind. Ct. App.
2014). Smith did not file a motion to dismiss, and he does not allege fundamental error. Accordingly, this
argument is also waived.
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