FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

WILLIAM F. THOMS, JR.    JEFFREY A. MODISETT
Indianapolis, Indiana    Attorney General of Indiana

             RANDI F. ELFENBAUM
            Deputy Attorney General
            Indianapolis, Indiana

ERNEST STEWART,                )
                                    )
    Appellant-Defendant,            )
                                    )
        vs.                         )    No. 49A02-9703-CR-132
                                    )
STATE OF INDIANA,                   )
                                    )
    Appellee-Plaintiff.             )

all but 90 days suspended.See footnote 2 The trial court further suspended Stewart's driver's license for life.     

the notice mailed are "evidentiary prerequisite[s]" to establishing that the suspension is valid. Bishop v. State, 638 N.E.2d 1278, 1280 (Ind. Ct. App. 1994). If these evidentiary prerequisites do not appear in the record the State cannot establish the second element of the offense, a valid suspension, and a conviction for operating a vehicle while suspended as an habitual traffic violator cannot be sustained. Id; accord Fields v. State, 679 N.E.2d 898, 901 n.6 (Ind. 1997).
    Here, the State introduced into evidence an habitual traffic violator packet for Stewart. Record at 39 (State's Exhibit 1). Among other driving record information, the packet contained a computer printout which indicated that the BMV mailed a letter to Stewart on August 23, 1993, informing him that his license had been suspended for ten years due to his status as an habitual traffic violator. It is unclear whether this letter advised him of his right to judicial review as required by Indiana Code Section 9-30-10-5(c). The packet included a copy of another letter notifying Stewart of his suspension dated November 30, 1995, which specifically stated that he had the right to judicial review. However, the packet contained no document or entry which specified that this letter was actually mailed.
    In Brown v. State, 677 N.E.2d 517 (Ind. 1997), our supreme court reversed the defendant's conviction for operating a vehicle while suspended as an habitual traffic violator under similar circumstances. In that case, neither the driving record introduced into evidence by the State, nor the copy of the notice of suspension confirmed that the notice had actually been mailed. Id. at 519. As noted by the court, a copy of the notice of suspension is insufficient evidence from which the trier of fact could infer that the notice was mailed. Id.

(citing Chambers v. State, 547 N.E.2d 301, 302 (Ind. Ct. App. 1989)). No entry appeared on the defendant's driving record indicating that the BMV mailed the notice and, further, the State presented no document or testimony which tended to prove that the BMV mailed the notice. Id. Our supreme court reversed the defendant's conviction concluding that, absent evidence that the BMV mailed the notice, the defendant was entitled to a directed verdict based on the insufficiency of the evidence. Id.
    Similarly, here, Stewart's driving record does not contain an entry showing that the BMV mailed the November 30, 1995, notice letter which properly advised him of his right to judicial review. Moreover, the State presented no document or testimony to confirm that the notice had been mailed. Although the evidentiary prerequisite of the proof of the content of the notice was met by the State, the evidentiary prerequisite of proof of mailing does not appear in the record. Consequently, the State has failed to establish the element of a valid suspension and Stewart's conviction cannot stand. See footnote 3
    We note that in Fennell v. State, 698 N.E.2d 823 (Ind. Ct. App. 1998) and Johnson v. State, 698 N.E.2d 821 (Ind. Ct. App. 1998), another panel of this court determined that the phrase "evidentiary prerequisite," often used to describe proof of mailing, should be taken to mean that such proof of mailing is merely a foundational requirement for evidence offered

by the State to prove that a defendant's license had been suspended. Fennell, 698 N.E.2d at 825; Johnson, 698 N.E.2d at 823. As such, the panel concluded that a defendant must make a specific and timely objection on foundational grounds when the State introduces the suspension evidence if the defendant believes that the evidence contains insufficient proof of mailing. Fennell, 698 N.E.2d at 825; Johnson, 698 N.E.2d at 823. The panel reasoned that the failure to make a specific and timely objection results in waiver of the issue on appeal. See Fennell, 698 N.E.2d at 825.
    Because we are constrained to follow the precedent set by our supreme court, we must disagree with our colleagues' conclusion that proof of mailing is a foundational requirement that is waived absent specific objection at the time the suspension evidence is offered by the State. In Brown, the defendant did not make a specific objection on foundational grounds at the time the State offered the defendant's driving record into evidence. Nevertheless, due to the lack of evidence in the record regarding proof of mailing, the Brown court concluded that the State failed to establish the element of a valid suspension and, thus, the evidence was insufficient to support the conviction. Brown, 677 N.E.2d at 519; see also Fields, 679 N.E.2d at 901 ("Proof of mailing of notice is . . . necessary to sustain a conviction, because it is necessary to prove that the suspension is valid, the second element the State must show.") Thus, our supreme court's opinion in Brown rejects the notion that proof of mailing is merely a foundational requirement which can be waived by a defendant regardless of the sufficiency of the evidence presented by the State.

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