Wendell Brown v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Jun 29 2017, 8:52 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Wendell Brown Curtis T. Hill, Jr.
Greencastle, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Wendell Brown, June 29, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1507-CR-928
v. Appeal from the Marion Superior
Court.
The Honorable Lisa F. Borges,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
49G04-1502-F5-3976
Barteau, Senior Judge
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Statement of the Case
[1] Wendell Brown appeals his conviction of attempted fraud on a financial
1
institution, a Level 5 felony. We affirm.
Issues
[2] Brown presents four issues for our review, which we restate as:
I. Whether the trial court had jurisdiction.
II. Whether the charging information was defective.
III. Whether the evidence was sufficient to support Brown’s
conviction.
IV. Whether the trial court committed fundamental error.
Facts and Procedural History
[3] In December 2014, Brown purchased a car from a car dealership in Marion
County with a cashier’s check. Shortly thereafter, a bank employee informed
the car dealership that Brown’s check was not valid. Based upon this incident,
the State charged Brown with attempted fraud on a financial institution, a Level
5 felony; two counts of forgery, both Level 6 felonies; and auto theft, a Level 6
felony.
[4] A bench trial was held on May 26, 2015, and Brown was found guilty as
charged. At sentencing, the trial court entered judgment of conviction only on
1
Ind. Code §§ 35-43-5-8 (2014); 35-41-5-1 (2014).
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the offense of attempted fraud on a financial institution, sentenced Brown to
five years, and ordered the sentence to run consecutively to his sentences in
other causes. Brown now appeals.
Discussion and Decision
I. Jurisdiction
[5] Brown first contends that the trial court lacked jurisdiction. Indiana courts
must possess two kinds of jurisdiction to adjudicate a case: subject matter and
personal. Taylor-Bey v. State, 53 N.E.3d 1230, 1231 (Ind. Ct. App. 2016).
Subject matter jurisdiction is the power of a court to hear and determine cases
of the general class to which a particular proceeding belongs. Id. Personal
jurisdiction is the power of a court to bring a person into its adjudicative process
and render a valid judgment over that person, and it requires effective service of
process over the parties. Johnson v. State, 957 N.E.2d 660, 662 (Ind. Ct. App.
2011).
[6] As to subject matter jurisdiction, Indiana courts obtain this jurisdiction through
the Indiana Constitution or a statute. Taylor-Bey, 53 N.E.3d at 1231. Indiana
Code section 33-29-1.5-2(1) (2011) provides that all superior courts of this state
have original jurisdiction in all criminal cases. In addition, criminal
proceedings are, generally, to be tried in the county where the offense was
committed. See Ind. Code § 35-32-2-1(a) (2005). The offenses involved in this
case occurred in Marion County, and Brown was charged and tried in superior
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court in Marion County. Accordingly, the trial court had subject matter
jurisdiction over Brown’s case.
[7] With regard to personal jurisdiction, Brown argues that the trial court did not
have jurisdiction over him solely on the ground that he is an “Aboriginal and
Indigenous Moorish American National” and thus neither a citizen of the
United States nor of the State of Indiana. Appellant’s Br. p. 11. However, the
Fourteenth Amendment provides that “[a]ll persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.” U.S. CONST. art. XIV, § 1.
Moreover, personal jurisdiction does not require the defendant to be a United
States citizen. Taylor-Bey, 53 N.E.3d at 1232 (determining that county superior
court had personal jurisdiction over defendant despite his contention that he
was not United States citizen but was Moorish American National). The trial
court had personal jurisdiction over Brown.
II. Charging Information
[8] Brown next asserts, essentially, that the trial court erred in denying his motion
to dismiss the charging information. In support of this claim, Brown argues
that the information was defective because it did not state to whom he
presented the check and that, as a result, he “had to guess who the check was
supposed to have been presented to.” Appellant’s Br. p. 14.
[9] A trial court’s denial of a motion to dismiss is reviewed only for an abuse of
discretion. Study v. State, 24 N.E.3d 947, 950 (Ind. 2015), cert. denied, 136 S. Ct.
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412, 193 L. Ed. 2d 325 (2015). An abuse of discretion occurs when the decision
is clearly against the logic and effect of the facts and circumstances before the
court, or when the trial court has misinterpreted the law. Estrada v. State, 969
N.E.2d 1032, 1038 (Ind. Ct. App. 2012), trans. denied.
[10] Indiana Code section 35-34-1-2 (2013) sets forth the required contents of the
charging information, the overarching purpose of which is to give the defendant
particular notice of the crimes with which he is charged so that he can prepare
an appropriate defense. Woods v. State, 980 N.E.2d 439, 443 (Ind. Ct. App.
2012). Here, the charging information alleges that Brown attempted to commit
fraud on a financial institution by “presenting a cashier[’]s check that appeared
to be authorized by JP Morgan Chase Bank and was associated to a closed
account that belonged to Wendell Brown when Wendell Brown knew that said
account was closed and said check was not authorized by JP Morgan Chase
Bank.” Appellant’s App., Vol. II, p. 12. Additionally, the probable cause
affidavit provided further details that Brown issued an $8,000.00 cashier’s check
to Ray Skillman West car dealership as a down payment on an automobile. Id.
at 15.
[11] “It has long been the rule in Indiana that the State may meet its burden of
providing sufficient notice of the charges the defendant faces through the
combination of an information and a probable cause affidavit.” Tiplick v. State,
43 N.E.3d 1259, 1269 (Ind. 2015). Taken together, the information and the
affidavit in this case provide sufficient facts to allege attempted fraud on a
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financial institution by Brown’s presentation of a check to Ray Skillman and to
apprise Brown that the State would argue that theory at trial.
III. Sufficiency of the Evidence
[12] As a third allegation of error, Brown claims that the State’s evidence was
insufficient to support his conviction. When we review a challenge to the
sufficiency of the evidence, we neither reweigh the evidence nor judge the
credibility of the witnesses. Sandleben v. State, 29 N.E.3d 126, 131 (Ind. Ct.
App. 2015), trans. denied. Instead, we consider only the evidence most favorable
to the judgment and any reasonable inferences drawn therefrom. Id. If there is
substantial evidence of probative value from which a reasonable fact-finder
could have found the defendant guilty beyond a reasonable doubt, the judgment
will not be disturbed. Labarr v. State, 36 N.E.3d 501, 502 (Ind. Ct. App. 2015).
The result of the fact-finder carrying out its function of determining the weight
of the evidence and the credibility of the witnesses is that it is free to believe
whomever it wishes. Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008).
[13] Indiana Code section 35-43-5-8 provides:
(a) A person who knowingly executes, or attempts to execute, a
scheme or artifice:
(1) . . . . ; or
(2) to obtain any of the money, funds, credits, assets, securities,
or other property owned by or under the custody or control of a
state or federally chartered or federally insured financial
institution by means of false or fraudulent pretenses,
representations, or promises;
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commits [fraud on a financial institution] a Level 5 felony.
Subsection (b)(4) of the statute defines “state or federally chartered or federally
insured financial institution” to include a bank or financial institution.
[14] The charging information alleged that Brown attempted to obtain United States
currency owned by, under the custody of, or under the control of, JP Morgan
Chase Bank, a state or federally chartered or federally insured financial
institution, by means of false or fraudulent pretenses, representations or
promises by presenting a cashier’s check that appeared to be authorized by JP
Morgan Chase Bank and was associated with a closed account that belonged to
Brown when Brown knew that the account was closed and that the check was
not authorized by JP Morgan Chase Bank. See Appellant’s App., Vol. II, p. 12.
[15] At trial, the State presented evidence that Brown had attempted to purchase a
car from the Ray Skillman dealership in Marion County, Indiana using a
cashier’s check for the down payment and was identified from a photo array by
both Jacob Morris, Ray Skillman salesman, and Christopher Muhney, Ray
Skillman finance manager. Muhney testified that a week after Brown
purchased the car, the dealership accounting office informed him that Brown’s
cashier’s check was returned as not valid.
[16] William Smith, fraud investigator with JP Morgan Chase Bank, also testified
on behalf of the State. Referring to State’s Exhibit 3, a copy of Brown’s
cashier’s check, Smith explained that although it appears to be a cashier’s check
issued by JP Morgan Chase Bank, it is not because the account number on the
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check is a personal account number. He further testified that JP Morgan Chase
Bank’s cashier’s checks are drawn on funds from a separate internal account so
personal account numbers are not on the check. Additionally, Smith explained
that JP Morgan Chase Bank maintains images of the cashier’s checks it issues,
and, if the check is not found in the system, it generally indicates the check is
counterfeit. He testified that he had examined the records of JP Morgan Chase
Bank and had not found this check in its system. Finally, Smith testified that
JP Morgan Chase Bank’s records indicate that the personal account number on
the check was an account belonging to Brown that was opened in December
2006 and closed in May 2007. The State also presented evidence of Brown’s
knowledge that this account was closed. This evidence is sufficient to show that
Brown committed attempted fraud on a financial institution by attempting to
cause JP Morgan Chase Bank to transfer $8,000.00 to the Ray Skillman car
dealership on the basis of his counterfeit cashier’s check.
IV. Fundamental Error
[17] Finally, Brown alleges that the trial court made several fundamental errors.
The fundamental error doctrine is extremely narrow and applies only when the
error amounts to a blatant violation of basic principles, the harm or potential for
harm is substantial, and the resulting error denies the defendant fundamental
due process. Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010), trans.
denied.
[18] First, Brown contends that the trial court judge “refused to acknowledge [his]
jurisdictional challenge or make the [State] prove the court’s jurisdiction was
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proper” and “refused to take judicial notice of the court’s lack of jurisdiction.”
Appellant’s Br. pp. 17, 18.
[19] As discussed and determined in Issue I, supra, the trial court had jurisdiction
over Brown and his criminal case. In Issue II, supra, we determined the State
presented sufficient evidence at trial, which included proof that the crime
occurred in Marion County, Indiana. In addition, the court did acknowledge
and rule on Brown’s jurisdictional challenges at the hearing on Brown’s motion
to dismiss, see Tr., Vol. I, p. 87, and at the final pre-trial conference:
COURT: Okay. But it does say here that you’re alleging that
you want me to take judicial notice that I don’t have jurisdiction.
BROWN: Basically take judicial notice of constitutional law
and United States code as well as stare decisis that says that this
Court doesn’t have judicial — I mean, I’m sorry, jurisdiction.
COURT: Okay. I will take judicial notice of the United States
Constitution and US code and stare decisis as I find it applies but
I will not take judicial notice of your assertion that I don’t have
jurisdiction cause I believe I do, all right — I know we disagree
on that but I do believe for that — I have jurisdiction and your
record is clear, okay?
BROWN: Well, I — I know that one case cited in that judicial
notice states that the State must prove jurisdiction.
COURT: Yes, they have to do that but not until trial.
BROWN: Well —
COURT: They’ve alleged jurisdiction already. Now they
have to prove it at trial.
Id. at 102. Accordingly, Brown’s claim of fundamental error on this issue fails.
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[20] Next, Brown argues the trial court committed fundamental error by admitting
State’s Exhibit 3, a copy of the cashier’s check, because it “was not the same
document provided in the initial discovery” in that it “shows signs of
tampering.” Appellant’s Br. p. 19. A review of State’s Exhibit 3 and the
document to which Brown directs us reveals no disparity between the two
copies of the check. See Exhibits Vol. p. 8; Appellant’s App., Vol. II, p. 26.
Brown has failed to show any error, much less fundamental error.
[21] Brown’s final claim of fundamental error is that the trial judge was not
impartial. Trial before an impartial judge is an essential element of due process.
Everling v. State, 929 N.E.2d 1281, 1287 (Ind. 2010). In assessing a trial judge’s
partiality, we examine the judge’s actions and demeanor balanced with the
latitude needed to run the courtroom and maintain discipline and control. Id. at
1288. The conduct to which Brown points as showing the court’s partiality can
be categorized as questioning a witness, clarification of questions and
procedure, admission of evidence, and moving forward with the trial.
[22] The first instance, although described by Brown as the judge giving a legal
conclusion on the evidence, is actually the judge re-stating Brown’s question to
a witness. In a bench trial, the judge is afforded the discretion to ask questions
of a witness to aid in the fact-finding process provided that it is done in an
impartial manner and the defendant is not prejudiced. Jones v. State, 847
N.E.2d 190, 198 (Ind. Ct. App. 2006), trans. denied. Here, the judge was
attempting to assist Brown, who was representing himself, by clarifying his
question to the witness. We discern no bias on the part of the judge.
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[23] Brown also points to several instances where the trial judge clarified questions
and procedure, which Brown characterizes as the judge “giv[ing] testimony on
her conclusion” and “interrupt[ing] questioning with no reason.” Appellant’s
Br. p. 20. Review of the transcript reveals the judge refined Brown’s question to
a witness to assist him in receiving the information he was seeking and
explained to Brown the State’s burden of proof, the meaning of a witness’s
testimony, and legal terminology and process. Despite the rule that the
defendant who chooses to exercise his right to proceed pro se must accept the
burden and hazards incidental to that position, see Tapia v. State, 753 N.E.2d
581, 587 (Ind. 2001), the trial judge here made attempts to help Brown
understand the procedure in order to facilitate the fact-finding process and keep
the trial moving to conclusion. We therefore find no basis for Brown’s
contention that the judge failed to act impartially.
[24] Further, Brown asserts that the court’s admission of 404(b) evidence constitutes
an act of bias. Brown objected at trial to the use of the transcript of his opening
statement in another criminal case where he admitted to writing checks on the
same account that he used in this case and that it was a closed account.
Brown’s objection was that he had not been provided a copy of the transcript.
The State responded that it filed its notice of intent to introduce 404(b) evidence
and that its “recollection . . . [was that] it was stated [Brown] had to provide his
own copy.” Tr., Vol. I, p. 178. At a pre-trial conference on April 1, 2015, at
which Brown was present and in which he participated, the State explained to
the court that it had paid for and obtained the transcript from the court reporter
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and asked if that could be released to Brown. The court responded that the
State is not allowed to release the transcript and that the court reporter would
need to provide Brown with a copy. Brown posed no questions to the court in
this regard, and he does not assert that he requested the transcript from the
court reporter. Thus, we find this situation to be an example not of judge bias
but of one of the many pitfalls of self-representation.
[25] Finally, Brown claims the trial court refused his line of questioning and
interrupted his closing argument. Review of the transcript of the incidents cited
by Brown discloses that the judge instructed Brown to “get [his] line of
questioning to something relevant,” to stop questioning a witness about a
document that she did not prepare and upon which the court had already ruled,
and to move on to other more persuasive points in his final argument because
the court was not persuaded by the argument he was currently making. Id. at
183. “‘Even where the court’s remarks display a degree of impatience, if in the
context of a particular trial they do not impart an appearance of partiality, they
may be permissible to promote an orderly progression of events at trial.’”
Everling, 929 N.E.2d at 1288 (quoting Timberlake v. State, 690 N.E.2d 243, 256
(Ind. 1997)). Again, Brown was representing himself, and, on these occasions
noted by Brown, the judge was merely attempting to move the trial forward in
an efficient manner. Brown has failed to demonstrate that the trial judge failed
to act impartially.
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Conclusion
[26] For the reasons stated, we conclude that the trial court had both personal and
subject matter jurisdiction in this case, that the charging information was not
defective, that the evidence was sufficient to support Brown’s conviction, and
that the trial court did not commit fundamental error.
[27] Affirmed.
Robb, J., and Mathias, J., concur.
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