Charlotte N. McGill v. State of Indiana ( 2014 )

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 Feb 06 2014, 9:03 am
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GILDA W. CAVINESS GREGORY F. ZOELLER
Caviness Law Office, LLC Attorney General of Indiana
Rushville, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARLOTTE N. MCGILL, )
)
Appellant-Defendant, )
)
vs. ) No. 73A01-1305-CR-217
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SHELBY CIRCUIT COURT
The Honorable Charles D. O’Connor, Judge
Cause No. 73C01-1111-FD-326
February 6, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Charlotte McGill appeals her convictions for Class D felony fraud and Class D
felony theft. We affirm.
Issues
McGill raises two issues, which we restate as:
I. whether the evidence is sufficient to sustain her
convictions; and
II. whether her convictions violate the prohibition against
double jeopardy.
Facts
Glen Brooks was a Platinum level Advantage Rewards Program member at
Indiana Grand Casino (“Casino”). He accumulated points on his player’s card that he
could redeem for food, merchandise, and cash for playing on the slot machines, i.e. “free
play.” The player must enter a four-digit pin number to access the free play. Brooks had
two player’s cards for his account. On November 16, 2011, Brooks and his wife went to
the Casino. After several hours, he noticed that he had fewer points than earlier in the
day. He was missing $250.00 in free play and thousands of points. Brooks reported the
discrepancy to the authorities at the Casino.
Upon reviewing video surveillance and computer records of Brooks’s player’s
card, the authorities discovered that Brooks had accidentally left his player’s card in a
slot machine. A Casino patron, later identified as McGill, discovered the card, took it,
used it repeatedly at various slot machines, and took $250.00 in free play from Brooks’s
account. Id. at 107. Agent Anthony Chapman of the Indiana Gaming Commission made
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contact with McGill, who was still at the Casino. McGill denied having Brooks’s
player’s card.
The State later charged McGill with Class D felony fraud and Class D felony theft.
In the fraud charging information, the State alleged that McGill “did with the intent to
defraud Indiana Grand Casino obtain property, by using, without consent, a credit card,
when said credit card has issued to another person.” App. p. 37. In the theft charging
information, the State alleged that McGill “did knowingly or intentionally exert
unauthorized control over the property of Glen T. Brooks, with the intent to deprive said
person of any part of the use or value of the property.” Id. A jury found McGill guilty as
charged, and the trial court sentenced her to concurrent sentences of one and one-half
years with twenty days executed and seventeen months of probation. McGill now
appeals.
Analysis
I. Sufficiency of the Evidence
McGill argues that the evidence is insufficient to sustain her convictions. When
reviewing the sufficiency of the evidence needed to support a criminal conviction, we
neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003,
1005 (Ind. 2009). “We consider only the evidence supporting the judgment and any
reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there
is substantial evidence of probative value such that a reasonable trier of fact could have
concluded the defendant was guilty beyond a reasonable doubt. Id.3
Indiana Code Section 35-43-5-4, which governs the offense of fraud, provides: “A
person who . . . with intent to defraud, obtains property by . . . using, without consent, a
credit card that was issued to another person . . . commits fraud, a Class D felony.”
According to McGill, the evidence is insufficient to show that she defrauded the Casino
because there was no explanation as to how she could have accessed Brooks’s card
without his pin number. However, the video surveillance and the computer records from
Brooks’s player’s card clearly show that McGill used the player’s card at various slot
machines and took $250.00 in free play. Although it is unclear how McGill obtained
Brooks’s pin number, the evidence clearly demonstrated that she used his card. The
evidence is sufficient to sustain her conviction for fraud.
Indiana Code Section 35-43-4-2(a), which governs the offense of theft, provides:
“A person who knowingly or intentionally exerts unauthorized control over property of
another person, with intent to deprive the other person of any part of its value or use,
commits theft, a Class D felony.” McGill argues that the State “failed to present
evidence sufficient to establish that McGill knowingly or intentionally exerted control
over Brooks’s card or ever intentionally held or controlled it.” Appellant’s Br. p. 12.
However, the video surveillance shows that Brooks accidentally left his card in a slot
machine. Another patron removed the card from the slot machine and left it on the
machine. Later, another patron set the card between two slot machines. The video then
shows McGill picking up the card and inserting it in the machine. The card was then
used at several slot machines, and McGill is seen on the video surveillance at each of
those slot machines. The evidence is sufficient to sustain McGill’s conviction for theft.
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II. Double Jeopardy
Next, McGill argues that her convictions violate the prohibition against double
jeopardy. The Double Jeopardy Clause of the Indiana Constitution provides “[n]o person
shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. In
Richardson v. State, 717 N.E.2d 32 (Ind. 1999), our supreme court concluded that two or
more offenses are the same offense in violation of Article 1, Section 14 if, with respect to
either the statutory elements of the challenged crimes or the actual evidence used to
obtain convictions, the essential elements of one challenged offense also establish the
essential elements of another challenged offense. Garrett v. State, 992 N.E.2d 710, 719
(Ind. 2013).
McGill seems to argue that her convictions for fraud and theft violate the actual
evidence test. “Under the actual evidence test, we examine the actual evidence presented
at trial in order to determine whether each challenged offense was established by separate
and distinct facts.” Id. To find a double jeopardy violation under this test, we must
conclude that there is “a reasonable possibility that the evidentiary facts used by the fact-
finder to establish the essential elements of one offense may also have been used to
establish the essential elements of a second challenged offense.” Id. “The actual
evidence test is applied to all the elements of both offenses.” Id. “‘In other words . . . the
Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing
the essential elements of one offense also establish only one or even several, but not all,
of the essential elements of a second offense.’” Id. (quoting Spivey v. State, 761 N.E.2d
831, 833 (Ind. 2002)).
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In Richardson, our supreme court acknowledged that double jeopardy is not
implicated where different victims are involved. Frazier v. State, 988 N.E.2d 1257, 1264
(Ind. Ct. App. 2013) (citing Richardson, 717 N.E.2d at 50 n.40). Our courts have
repeatedly upheld this principle, finding no double jeopardy violation where there are
multiple victims of the same crime. Id. Here, there are separate victims—the Casino and
Brooks.1 Consequently, McGill’s double jeopardy argument fails.
Conclusion
The evidence is sufficient to sustain McGill’s convictions, and her convictions do
not violate the prohibition against double jeopardy. We affirm.
Affirmed.
ROBB, J., and BROWN, J., concur.
1
McGill’s reliance on Trotter v. State, 733 N.E.2d 527 (Ind. Ct. App. 2000), trans. denied, is misplaced
because different victims for the charges are not mentioned in that case.
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