Foley, J.
Kimberly J. Brook (“Brook”) was convicted after a jury trial of resisting law enforcement1 as a Class A misdemeanor, driving while suspended2 as a Class A misdemeanor, unlawful possession or use of a legend drug as a Level 6 felony, and obstruction of justice4 as a Level 6 felony. The trial court sentenced Brook to an aggregate sentence of two years with one year executed in the Indiana Department of Correction (“DOC”) and one year served on Community Corrections. On appeal, Brook raises several issues, which we consolidate and restate as: I. Whether, as a matter of first impression, the trial court abused its discretion when it denied her request to bifurcate her trial as to her driving while suspended charge, which was elevated due to a prior infraction and not a prior criminal conviction; II. Whether Lorazepam’s status as a legend drug is a question of law that could be determined by the trial court; III. Whether the admission of testimony from Brook’s prior attorney concerning her attempt to manufacture evidence to avoid her conviction for unlawful possession of a legend drug violated attorney-client privilege; and IV. Whether Brook’s two-year aggregate sentence is inappropriate in light of the nature of the offense and the character of the offender.
Finding no error, we affirm the trial court.
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Brook argues that the trial court abused its discretion when it denied her request to bifurcate the proceedings with respect to her driving while suspended charge. More specifically, Brook argues that bifurcation is required under Indiana Code section 35-38-1-2 even though her enhancement was based upon a prior civil infraction and not a prior offense. This is a matter of first impression.
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Here, prior to trial, when the trial court was discussing the jury instruction for Brook’s charge of driving while suspended with the parties, Brook requested that part of the instruction be stricken and that the trial be bifurcated so that her prior driving while suspended infractions could be proven in a second phase. Tr. Vol. 2 p. 10. The State responded that, because Brook’s priors were not convictions but were instead, civil infractions, bifurcation was not required. The trial court took the issue under advisement, and although the trial court never explicitly ruled on the request, the trial was not bifurcated.
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Brook relies on Landis v. State, which found that when the State must prove a prior conviction in order to elevate the present offense, a bifurcated trial must be held where the evidence of the defendant’s prior conviction and the acts which culminated in that prior conviction cannot be introduced until the jury has first decided whether the defendant is guilty of the present charge. 693 N.E.2d 570, 572 (Ind. Ct. App. 1998), aff’d in part and vacated in part, 704 N.E.2d 113 (Ind. 1998). Landis concerned the elevation of a stalking offense based upon a prior conviction for stalking the same victim. Id. at 571–72. The instant matter is distinguishable because the elevation of Brook’s offense is based upon a prior civil infraction judgment.
Here, we are presented with a case of first impression of whether bifurcation is required where a defendant is charged with a criminal offense that is elevated due to a prior judgment of an infraction and not a prior conviction of a criminal offense. We find no case law conclusively deciding whether bifurcation is required in such circumstances.
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It seems that day has come, as we conclude that Brook made a timely request for bifurcation. We begin by examining Indiana’s bifurcation statute, Indiana Code section 35-34-1-2.5, which provides “if the penalty for an offense is . . . increased because the person was previously convicted of the offense, the State may seek to have the person sentenced to receive the increased penalty by alleging, on a page separate from the rest of the charging instrument, that the person was previously convicted of the offense.” (emphases added). Indiana Code section 35-38-1-2 requires bifurcation where: “(1) the State in the manner prescribed by IC 35-34-1-2.5 sought an increased penalty by alleging that the person was previously convicted of the offense”; and “(2) the person was convicted of the subsequent offense in a jury trial.” Ind. Code § 35-38-1-2(c) (emphases added). Therefore, pursuant to statute, bifurcation is required when the State seeks to elevate an offense because a defendant has been previously convicted of the offense.
However, under Indiana Code section 35-31.5-2-215, the term “offense” means a crime and does not include an infraction. Here, Brook was charged with driving while suspended elevated to a Class A misdemeanor due to the fact that judgment had been previously entered against her for a prior unrelated violation of Indiana Code section 9-24-19-1. That statute provides that an individual who operates a motor vehicle upon a highway while the individual’s driver’s license is suspended commits a Class A infraction. Thus, although her current criminal charge was for Class A misdemeanor driving while suspended, it was not elevated because she was previously convicted of the offense. Instead, her current offense was elevated because she previously had a civil judgment entered against her for Class A infraction driving while suspended, which is not a conviction for a criminal offense. See State v. Hurst, 688 N.E.2d 402, 405 (Ind. 1997) (traffic violations are considered civil proceedings), overruled on other grounds; Schumm v. State, 866 N.E.2d 781, 792 (Ind. Ct. App. 2007) (infractions are civil matters).
Therefore, because bifurcation is only required under the statute when the State seeks to elevate an offense because a defendant has been previously convicted of the offense, and the term offense means crime and not infraction, we hold that when a defendant is charged with a crime elevated based upon a prior infraction, the trial court is not required to bifurcate the proceedings. We limit our holding here to state only that bifurcation under Indiana Code section 35- 38-1-2 is not required where the State seeks to elevate an offense based upon a prior civil infraction judgment. Because Brook’s Class A misdemeanor driving while suspended charge was elevated due to her prior judgment for an infraction, she was not entitled to bifurcation, and the trial court did not abuse its discretion in denying her request.
Brook next argues that the trial court’s jury instruction for the offense of unlawful possession or use of a legend drug was clearly erroneous. The trial court determined that, as a matter of law, Lorazepam is a legend drug and incorporated that conclusion in its instruction. Brook contends that the jury instruction relieved the State from its burden of proof as to a material element of the offense, and because the State failed to present evidence on that element, the evidence was not sufficient to support the conviction.
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This particular issue was addressed by this court in J.P. v. State, where the defendant argued that the State did not present sufficient evidence at trial to prove that the drug Ritalin satisfied the definition of legend drug under the Legend Drug Act. 878 N.E.2d at 417. The defendant claimed that, although the State presented evidence that “Ritalin is a legend drug,” it failed to meet its burden of proof because it did not submit a copy of the Orange Book into evidence at her trial. Id. This court, in rejecting this claim, noted that it had previously been held that “where the Uniform Narcotic Drug Act identifies a specific drug by name and designates it a narcotic, ‘a conviction may be upheld as the trial court need only refer to the exact words of the statutory definition and determine the substance is a narcotic as a matter of law.’” Id. at 417–18 (citing White, 316 N.E.2d at 702). This court recognized that Indiana Code section 16-18-2-199 “incorporates by reference” both 21 U.S.C. § 353(b)(1) and “the Orange book, which expressly includes Ritalin in its list of drugs.” Id. at 418. While the Orange Book is not a statute, this court reasoned that it was “promulgated by a federal agency” and held that “the statute properly incorporates the Orange Book by reference.” Id. Therefore, the court concluded that “Ritalin is, as a matter of law, specifically listed as a legend drug under Indiana Code Section 16-1-8-2-199,” and the State presented sufficient evidence by having the trial court look to the statutory definition and determine that the substance met that definition. Id.
The holding in J.P. compels a similar conclusion here. At trial, evidence was presented that one of the pills found inside Brook’s purse during intake at the jail contained the inscription EP904, was identified as Lorazepam, and was later tested and found to be Lorazepam, a controlled substance. Like the drug at issue in J.P., Lorazepam appears in the Orange Book. See Federal Drug Administration, Orange Book: Approved Drug Products with Therapeutic Equivalence Evaluations, https://www.fda.gov/drugs/drug-approvals-anddatabases/approved-drug-products-therapeutic-equivalence-evaluations-orangebook#Publications [https://perma.cc/FMK6-EJVZ] (last visited Aug. 2, 2023). Therefore, under J.P., the trial court in the present case could find that the State established Lorazepam’s status as a legend drug as a matter of law because Lorazepam is a legend drug under the definition contained in Indiana Code section 16-18-2-199. There is no dispute in this case that Lorazepam appeared in the Orange Book, so the drug falls within the class of medications incorporated by reference into Indiana’s statutory definition for the term legend drug. See I.C. § 16-18-2-199. Whether Lorazepam meets the statutory definition of “legend drug” was not a question of fact that the State was required to prove to the jury, but instead a matter of law that the trial court could decide by referring to the statutory language. See J.P., 878 N.E.2d at 417; Barnett, 579 N.E.2d at 86.
Accordingly, because Lorazepam’s status as a legend drug was not an issue of fact, the trial court did not erroneously invade the province of the jury by giving instructions that created a mandatory presumption indicating that the substance was classified as a legend drug.
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Here, the challenged jury instructions, Preliminary Instruction 8 and Final Instruction 11, informed the jury about a matter of law—that Lorazepam was classified as a legend drug at the time Brook committed the offense—but did not require the jury to reach any factual inferences. Under both instructions, the factual question of whether the State proved that the pill found in Brook’s possession was in fact Lorazepam was left for the jurors to decide as an element of the charged offense. Therefore, the instructions left the factual question to the jury, while informing the jury that Lorazepam satisfied the legal definition for the term legend drug. We conclude that the trial court’s instructions did not impermissibly shift the State’s burden of proof as to any issue to be decided by the jury, and the trial court did not abuse its discretion.
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Brook asserts that the attorney-client privilege could give way only if Achey was involved in the perpetration of her fraud. Brook reads Lahr as only allowing the admission of attorney-client communications when they were made for the purpose of committing or continuing a crime or fraud. And therefore, because the trial court found “no indication [Achey] did anything wrong,” it was an error for the trial court to allow the statements to be admitted. Supp. Tr. Vol. 2 p. 24. However, in Lahr, the defendant forged two letters for the purpose of bolstering his self-defense argument and enlisted the aid of his attorney in furtherance of a continuing crime or fraud, and this court held that the “information concerning this subterfuge is not protected by the attorney-client privilege.” Lahr, 731 N.E.2d at 484. Both here, and in Lahr, the client used the attorney, by presenting the forged or false documents as evidence in a criminal proceeding, to perpetuate the crime or fraud. Lahr did not limit admission of attorney-client communications to only situations where the attorney had culpability for the perpetration of the crime. Therefore, we conclude that Brook’s communications to Achey fell within the crime-fraud exception to the attorney-client privilege, and the trial court did not abuse its discretion when it admitted them into evidence.
Brook argues that her two-year sentence is inappropriate.
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Based on the facts in the record, neither the nature of Brook’s crimes nor her character merit a lesser sentence, and she has not shown that her two-year sentence is inappropriate.
We conclude that the trial court did not abuse its discretion when it denied Brook’s request for bifurcation as her driving while suspended charge was elevated based on a prior infraction and not a criminal offense. We also hold that there was no abuse of discretion in instructing the jury and that the State presented sufficient evidence to support Brook’s conviction for possession of a legend drug because the trial court could find that the State established Lorazepam’s status as a legend drug as a matter of law. Further, we do not find that the trial court abused its discretion when it ruled that Brook’s prior attorney was required to testify regarding communications related to Brook’s attempt to present a false prescription record. Lastly, we conclude that Brook’s sentence is not inappropriate.
Affirmed.
Vaidik, J., concurs in part and dissents in part with separate opinion.
Tavitas, J., concurs in part and dissents in part with separate opinion.
Vaidik, J., concurring in part and dissenting in part.
I concur with the lead opinion on the issues of jury instructions, admission of evidence, and sentencing. However, I respectfully dissent on the issue of bifurcating the driving-while-suspended charge.
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The lead opinion correctly notes that this statute expressly requires bifurcation only when the prior violation at issue was a criminal “offense,” which means a felony or misdemeanor. See I.C. § 35-31.5-2-215. But it is also true that nothing in the statute expressly limits bifurcation to that situation. The statute simply doesn’t address whether bifurcation is required where, as here, the prior violation is an infraction rather than a criminal offense. Therefore, we are left with the fundamental legal principles underlying the concept of bifurcation. And those principles—due process and the general prohibition on character evidence—are implicated regardless of whether the prior violation is a criminal offense or an infraction.
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That being the case, I see no reason not to apply those broad principles to Brook’s situation merely because the prior violation at issue was an infraction rather than a criminal offense. Based on that prior infraction, Brook’s current driving-while-suspended charge was elevated to a Class A misdemeanor, meaning that she faced up to a year in jail and a fine of up to $5,000 on that count. See I.C. § 35-50-3-2. Those are real criminal consequences. And there is little doubt that the jury was more likely to find Brook guilty on the current driving-while-suspended charge once it learned she had previously committed the same violation. Therefore, I would hold that due-process principles and Evidence Rule 404(b) entitled Brook to bifurcation even though Section 35-38- 1-2(c) did not, and I would reverse her driving-while-suspended conviction.
Finally, even though I believe a defendant facing an increased penalty based on a prior infraction is entitled to bifurcation under due-process principles and Evidence Rule 404(b), I encourage the General Assembly to expand Section 35- 38-1-2(c) to include that situation. Such an amendment would further clarify and solidify this crucial right.
Tavitas, J., concurring in part and dissenting in part.
I concur with Judge Foley’s opinion regarding Issues I, III, and IV. I respectfully dissent, however, from the majority’s holding that the trial court did not abuse its discretion in instructing the jury with regard to the elements of the crime of possession of a legend drug.
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Here, Lorazepam is not specifically enumerated by the Indiana Code as a legend drug.8 It is instead listed in a federal publication that is referenced by the Indiana Code section defining a legend drug. Accordingly, I believe that the State was required to offer extrinsic evidence—such as the relevant portion of the Orange Book—to prove to the jury that Lorazepam is a legend drug. See J.P., 878 N.E.2d at 417. By instructing the jury in the manner it did, the trial court gave the jury an impermissible mandatory instruction. Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (defining a mandatory presumption as an instruction which informs the jury that it “must infer the presumed facts if the State proves certain predicate facts,” which, “if it amounts to a shift in the burden of proof, it is unconstitutional.”) (citations omitted). The trial court here recognized that its instruction was mandatory, stating: “The [] mandatory instruction o[f] the Court is telling you Lorazepam is a legend drug.” Tr. Vol. 2 p. 13.
Here, the trial court’s instruction informed the jury that, if the State proved that Brook possessed Lorazepam, the State accordingly proved that this substance was a legend drug. Because this unconstitutionally relieved the State of its burden of proving all the elements of the offense, and because the State presented no evidence at all to the jury that Lorazepam is a legend drug, I would reverse Brook’s conviction for possession of a legend drug and remand for retrial on this issue.