Wendell Brown a/k/a Menes Ankh El v. State of Indiana , 2016 Ind. App. LEXIS 420 ( 2016 )

FILED
Nov 22 2016, 8:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Menes Ankh El Gregory F. Zoeller
Greencastle, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Wendell Brown a/k/a Menes November 22, 2016
Ankh El, Court of Appeals Case No.
Appellant-Defendant, 49A05-1311-CR-550
Appeal from the Marion Superior
v. Court
The Honorable Sheila A. Carlisle,
State of Indiana, Judge
Appellee-Plaintiff. Trial Court Cause No.
49G03-1204-FC-25485
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Wendell Brown, now known as Menes Ankh-El1 (Ankh-
El), appeals his conviction for burglary, a Class C felony, Ind. Code § 35-43-2-1
(2011); forgery, a Class C felony, I.C. § 35-43-5-2(b) (2011); and driving while
suspended, a Class A misdemeanor, I.C. § 9-24-19-2 (2012).
[2] We affirm.
ISSUES
[3] Ankh-El raises five issues on appeal, which we restate as follows:
(1) Whether the trial court had subject matter jurisdiction over this case;
(2) Whether the trial court denied Ankh-El the right to counsel in violation of
the Sixth Amendment to the United States Constitution;
(3) Whether the State presented sufficient evidence to support Ankh-El’s
conviction for burglary, forgery, and driving while suspended beyond a
reasonable doubt;
(4) Whether the charging Information was defective; and
(5) Whether the trial court committed fundamental error by exhibiting
prejudice.
1
Ankh-El’s briefs and other filings indicate that his surname is “Ankh El”; however, we will use the
hyphenated spelling as it is written on Ankh-El’s identification card, which is depicted in State’s Exhibit 13.
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FACTS AND PROCEDURAL HISTORY
[4] In January of 2012, Bank of America acquired a foreclosed home located at
2401 West 39th Street, Indianapolis, Marion County, Indiana (the Property),
through a sheriff’s sale. Because Bank of America utilized Bank of New York
Mellon to service its mortgage rights, Bank of New York Mellon is also listed
on the Sheriff’s Deed. The Sheriff’s Deed was stamped by the Marion County
Assessor on February 10, 2012, and filed with the Marion County Recorder on
February 13, 2012.
[5] Shortly after procuring the Property, Bank of America engaged Integrated Asset
Services “to manage, market, and sell the [P]roperty.” (Tr. p. 148). Integrated
Asset Services assigned the Property listing to one of its real estate brokers,
Mark Forcum (Forcum). It was Forcum’s responsibility to prepare, market, and
sell the Property. Under ideal circumstances, the Property would have
been valued between $700,000 and $800,000; however, given its condition
following the foreclosure, Forcum agreed to list the Property for $325,000.
Pursuant to his obligations, in addition to showing the Property to prospective
buyers, Forcum paid the utility bills; he ensured that the lawn was mowed and
the Property was otherwise maintained; and he conducted weekly inspections,
during which he verified that the house was secure.
[6] On April 16, 2012, Forcum drove past the Property and noticed that a red flag
was hanging from the gate at the end of the driveway. The next day, he
returned to the Property to conduct his weekly inspection. Upon arrival, he
observed a lawn mower and mowing trailer in the driveway and initially
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assumed that the regular mowing crew was working on the yard. However, he
grew concerned when he noticed that two men were standing on a second-floor
balcony because the mowing crew would have no reason to enter the residence.
When Forcum exited his vehicle, one of the men on the balcony—Ankh-El—
inquired into Forcum’s presence. Forcum explained that he is a real estate
broker, and, in response, Ankh-El identified himself as the new owner of the
Property. Knowing this could not be the case given his exclusive listing rights,
Forcum returned to his vehicle and drove away from the Property while calling
the Indianapolis Metropolitan Police Department (IMPD).
[7] Forcum waited at the end of the long driveway until IMPD officers arrived.
Forcum apprised the officers of his concern that there was an individual
squatting on the Property, and he provided the officers with his credentials and
a copy of the listing agreement which identified him as the agent responsible for
selling the Property. Thereafter, the officers proceeded down the driveway and
observed Ankh-El and another male standing outside. The officers identified
themselves and explained the nature of their visit. Ankh-El informed the
officers that he had recently purchased the property for $250,000, and he acted
perplexed as to why there would be any indication that the Property was still
listed for sale. When asked for proof of his ownership, Ankh-El stated that he
had such documentation at another location, so he locked the doors to the
house and drove away from the Property while the officers and Forcum waited
for him to return. During Ankh-El’s absence, one of the officers contacted the
Marion County Assessor’s Office, which reported that the current owner of
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record for the Property was Bank of New York Mellon. A short while later,
Ankh-El drove up to the Property on a black Yamaha motorcycle. Ankh-El
provided the officers with an identification card with his name and photograph,
which identified him as a “Moorish National” and listed his birthplace as
Marion County, Indiana. (State’s Exh. 13). Ankh-El admitted that he had
created the identification card himself and explained some of the history of the
Moorish people; specifically, he “talked about [how] the laws of [the] land [do
not] apply to Moorish Nationals.” (Tr. p. 216).
[8] In addition, Ankh-El tendered a document to the officers entitled
“FREEHOLD IN DEED.” (State’s Exh. 1). According to Ankh-El, this deed,
which he had also created himself, evidenced his ownership rights in the
Property. The homemade deed, stated, in part:
I, Menes Ankh-El, being in propria persona, sui juris, am a Free
Moorish American National of Al Moroc (America) North,
Central, South America and Adjoining Islands anciently referred
to as Amexem, and I am part and parcel to the Land of my
ancient Foremothers, and Fathers (Moabites/Moroccans) by
birthright and inheritance as an aboriginal, indigenous and de
jure natural citizen of the Continental United States of America
Republic. Therefore, by the power and authority vested in me by
right of birth and right of soil, retaining all substantive
unalienable rights and immunities in the Organic United States
of America Republic Constitution, I, Menes Ankh-El, am
claiming FREEHOLD IN DEED of the abandoned and
unoccupied [Property].
(State’s Exh. 1). Immediately preceding his signature, the Freehold in Deed
contained a declaration that “I, Menes Ankh-El, am NOT a citizen governed
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under Naturalization or Immigration, NOT a 14th Amendment ‘Person’ or
‘U.S. Citizen’, NOT subject to statutory, colorable law jurisdiction of the United
States in the corporate monopoly of the federal, State, local, and
municipal governments(s) [sic].” (State’s Exh. 1). Ankh-El filed his Freehold in
Deed with the Marion County Recorder on March 28, 2012.
[9] Based on Ankh-El’s self-created documents, the officers determined that he was
unlawfully occupying the Property and placed him under arrest. A subsequent
inspection of the Property revealed that Ankh-El, after gaining access to the
house, had changed all of the locks and had mounted multiple “No
Trespassing” signs. (State’s Exh. 6). He had also moved a number of his
personal belongings, including a set of bolt cutters, into a third floor bedroom,
and his laptop was plugged into an outlet. At the jail, Ankh-El was
fingerprinted, and his fingerprints matched the criminal record of Wendell
Brown.2 A review of Wendell Brown’s record from the Bureau of Motor
Vehicles (BMV) revealed that his driver’s license was suspended.
[10] On August 30, 2012, the State filed an amended Information, charging Ankh-El
(i.e., Wendell Brown) with Count I, burglary, a Class C felony, I.C. § 35-43-2-1
(2011); Count II, forgery, a Class C felony, I.C. § 35-43-5-2(b) (2011); Count
III, theft, a Class D felony, I.C. § 35-43-4-2(a) (2011); Count IV, trespass, a
2
There is no indication in the record as to whether Ankh-El ever legally changed his name from Wendell
Brown. Prior to trial, Ankh-El conceded that he was “formerly known as Wendell Brown,” but he disagreed
with any indication that the name Ankh-El is an also known as moniker because his name is “[j]ust Menes
Ankh-El.” (Tr. pp. 4-5).
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Class A misdemeanor, I.C. § 35-43-2-2(a)(4) (2011); and Count V, driving while
suspended, a Class A misdemeanor, I.C. § 9-24-19-2 (2012).
[11] After the charges were filed, Ankh-El elected to represent himself and began
filing a multitude of motions. Several of his motions sought dismissal based on
the claim that the trial court lacked both personal and subject matter
jurisdiction. Specifically, Ankh-El asserted that the trial court lacked authority
under the United States Constitution to hear the case, and he further insisted
that he is neither a citizen of the United States or Indiana, nor a party to a
contract with the State of Indiana. Essentially, he insisted that as a “Private
Moorish American National Man,” he is not subject to the power of the courts
or the laws of this state. (Appellant’s App. p. 28). Ankh-El also sought
dismissal due to lack of evidence, arguing, in part, that he was rightfully entitled
to claim the Property under the doctrine of adverse possession. Additionally,
Ankh-El claimed that the trial court violated his right to assistance of counsel
and the Vienna Convention by refusing to allow his “Consuls” to address the
trial court on his behalf. (Appellant’s App. p. 27). He also accused the trial
court of committing perjury, and he alleged that the trial court had exhibited
extreme prejudice by failing to rule on motions and by preventing the State
from responding to his motions. In a few motions, Ankh-El alleged that he was
entitled to a default judgment because the trial court and the State had failed to
respond to his various motions regarding the trial court’s lack of jurisdiction, as
well as other accusations by Ankh-El against the State and trial court, including
treason, fraud and “[b]arratry.” (Appellant’s App. p. 30). Furthermore, Ankh-
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El challenged the validity of the charging Information, positing that the
Information does not clearly identify the owner of the Property and that it
includes other vague references. Ankh-El additionally argued that the
Information failed to properly identify him because he has “a Nationality which
is Moorish American [and] for the [I]nformation to designate [him] as a black
male and as WENDELL BROWN© [sic] is denationalization and violation of
the 13th Amendment prohibitions of slavery and involuntary servitude.”
(Appellant’s App. p. 42). While the trial court denied several of these motions,
the record is unclear as to whether it actually issued rulings as to the rest.
[12] On July 24, 2013, the trial court conducted a jury trial. At the close of the
evidence, the jury returned a guilty verdict on all Counts. On August 2, 2013,
the trial court held a sentencing hearing. The trial court merged Count III, theft
as a Class D felony, and Count IV, trespass as a Class A misdemeanor, into
Count I and entered a judgment of conviction on Count I, burglary as a Class C
felony; Count II, forgery as a Class C felony; and Count V, driving while
suspended as a Class A misdemeanor. For Count I and Count II, the trial court
imposed concurrent sentences of four years, with two years executed through
Community Corrections and two years suspended with one year of probation
for each Count. As to Count V, the trial court ordered Ankh-El to serve a one-
year term in Community Corrections, concurrent with his sentence for Counts I
and II.
[13] On November 1, 2013, Ankh-El filed his Notice of Appeal. On May 12, 2014,
this court dismissed Ankh-El’s appeal with prejudice because it was not timely
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filed. On June 2, 2014, Ankh-El filed a petition for rehearing, which we denied
on June 23, 2014. On August 26, 2014, Ankh-El filed a Demand for
Acceptance of Belated Petition to Transfer, which the Indiana Supreme Court
granted on September 12, 2014. On May 26, 2015, the supreme court granted
Ankh-El’s petition to transfer. In its order, the supreme court noted that Ankh-
El had filed a response with our court to show cause why his appeal should not
have been dismissed due to an untimely Notice of Appeal, but the response was
incorrectly filed under a different appeal initiated by Ankh-El and, therefore,
was likely not reviewed. Moreover, Ankh-El submitted an order from the trial
court that extended the time for filing his Notice of Appeal to November 2,
2013, likely in accordance with Indiana Trial Rule 72(E); thus, his November 1,
2013 Notice of Appeal was actually timely. Accordingly, the supreme court
vacated our dismissal of Ankh-El’s appeal and our denial of his petition for
rehearing and remanded the case to our court for further proceedings.
Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Jurisdiction
[14] Ankh-El first claims that his conviction must be vacated because the trial court
lacked subject matter jurisdiction.3 “Subject-matter jurisdiction is ‘the power to
3
We note that Ankh-El has waived any contention that the trial court lacked personal jurisdiction because,
although raised in his pre-trial motions, he has failed to raise the issue on appeal. See Ind. Appellate Rule
46(A)(8)(a). Regardless, it is clear that the trial court did have personal jurisdiction over Ankh-El because his
crimes occurred in Marion County, Indiana. See Taylor-Bey v. State, 53 N.E.3d 1230, 1232 (Ind. Ct. App.
2016).
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hear and determine cases of the general class to which any particular
proceeding belongs.’” Taylor-Bey, 53 N.E.3d at 1231 (quoting K.S. v. State, 849
N.E.2d 538, 540 (Ind. 2006)). “An Indiana court obtains subject-matter
jurisdiction through the Indiana Constitution or a statute.” Id. Pursuant to
Indiana statute, all standard and non-standard superior courts have “original
and concurrent jurisdiction in all civil cases and in all criminal cases.” I.C. §§
33-29-1-1.5(1); -1.5-2(1). In this case, Ankh-El’s crimes were alleged to have
occurred in Marion County, Indiana, and the State filed charges in the Marion
Superior Court.
[15] According to Ankh-El, the United States Constitution confers authority to hear
a case in which a state is named as a party solely to the United States Supreme
Court. Because the present case was “brought in the name of STATE OF
INDIANA (i.e. STATE OF INDIANA v. WENDELL BROWN),” Ankh-El
insists that the Indiana Code’s bestowal of “original and concurrent
jurisdiction” upon Marion County courts is “repugnant to the U.S. Constitution
(1787/1791).” (Appellant’s Br. p. 12) (Italics added). Additionally, Ankh-El
contends that “[a]s an Aboriginal Moorish American National and descendant
of Africans (Moroccans) born in America, [he is] not and cannot be a state or
U.S. citizen” and is therefore not subject to the authority of Indiana courts.
(Appellant’s Br. p. 12). In fact, Ankh-El argues that he is “a member of the
‘sovereignty’” and is “not bound by general words in statutes.” (Appellant’s Br.
p. 15). Instead, “[a]s a sentient being,” he claims that he is “governed by
common law and [has] the natural right to do anything which [his] inclinations
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may suggest, if it be not evil in itself, and in no way impairs the rights of
others.” (Appellant’s Br. p. 14). We find no merit in Ankh-El’s rambling
contentions.
[16] The State aptly points out that “[i]t is well established that states are separate
sovereigns with respect to the federal government ‘because each State’s power
to prosecute is derived from its own ‘inherent sovereignty,’ not from the Federal
Government.’” Jackson v. State, 563 N.E.2d 1310, 1311 (Ind. Ct. App. 1990).
Thus, the power vested in Indiana’s superior courts by Indiana statute does not
run afoul of the United States Constitution. As support for his assertion that he
is impervious to the jurisdiction of Indiana’s courts based on his lack of
citizenship, Ankh-El relies primarily on Dred Scott v. Sandford, 60 U.S. 393, 406,
427 (1856), superseded by constitutional amendment, U.S. CONST. amend XIV,
wherein the United States Supreme Court determined that the plaintiff, a
descendant of African slaves, could not be considered a United States citizen
such that the court lacked the jurisdiction to resolve his civil case. However, we
find Ankh-El’s reliance on the Dred Scott case entirely misplaced and
unpersuasive in light of the fact that the Fourteenth Amendment overturned
Dred Scott in 1868.
[17] The Fourteenth Amendment to the United States Constitution 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. Here, there is no dispute that Ankh-El
was born in Marion County, Indiana, and he was residing there at the time he
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committed the present offenses, which were also committed in Marion County.
Moreover, Ankh-El’s citizenship is irrelevant to the determination of whether a
trial court has authority, by constitution or statute, to hear a certain type of
case. See Taylor-Bey, 53 N.E.3d at 1232. Rather, by the explicit authority of
Indiana statute, the Marion Superior Court was vested with subject matter
jurisdiction over Ankh-El’s criminal case. See I.C. §§ 33-29-1-1.5(1); -1.5-2(1).
II. Right to Counsel
[18] Ankh-El next claims that he was denied the right to counsel in violation of the
Sixth Amendment to the United States Constitution. “In all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” U.S. CONST. amend VI. The right to counsel “is
essential to the fairness of a criminal proceeding.” Drake v. State, 895 N.E.2d
389, 392 (Ind. Ct. App. 2008). In this case, Ankh-El asserts that the trial court
denied his request to be represented by his “Consuls from the Moorish
American Nation” due to the fact that “they did not have a license to practice
law[] and that they were not members of the B.A.R. [sic].” (Appellant’s Br. p.
16).
[19] We note that the record is devoid of any proceedings regarding Ankh-El’s
request to be represented by Moorish Consuls and the trial court’s denial
thereof. At some point, Ankh-El elected to proceed pro se, and the trial court
appointed standby counsel to assist him with procedural matters during the
trial. As the State points out, Ankh-El has waived his argument for appeal by
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failing to cite to the record. See App. R. 46(A)(8)(a). Nevertheless, we elect to
address Ankh-El’s claim.4
[20] Our courts have held that “[t]he Sixth Amendment right to counsel
encompasses a right to counsel of one’s choice.” Latta v. State, 743 N.E.2d
1121, 1127 (Ind. 2001) (citing Powell v. Alabama, 287 U.S. 45, 53 (1932)). “The
right to counsel of choice has been described as an ‘essential component’ of the
Sixth Amendment right to counsel, and ‘a defendant should be afforded a fair
opportunity to secure counsel of his own choice.’” Barham v. State, 641 N.E.2d
79, 82 (Ind. Ct. App. 1994) (citation omitted) (quoting Powell, 287 U.S. at 53).
“A conviction attained when a court unreasonably or arbitrarily interferes with
an accused[’s] right to retain counsel of choice . . . cannot stand, irrespective of
whether the defendant has been prejudiced.” Id. (alterations in original)
(internal quotation marks omitted).
[21] Here, Ankh-El asserts that the trial court denied his request to retain “Consuls
from the Moorish American Nation” because they did not have licenses to
practice law in Indiana. (Appellant’s Br. p. 16). Ankh-El now argues that this
denial of his choice of counsel amounted to a violation of due process. In
particular, he asserts that “[t]he practice of law cannot be licensed by any
4
During the pendency of this appeal, Ankh-El filed several motions requesting that our court order the trial
court to provide him with transcripts of the pre-trial proceedings. We directed the trial court to send Ankh-El
a free copy of the clerk’s record and transcript, and on January 8, 2016, the trial court filed its Notice of
Compliance. Thereafter, Ankh-El filed additional motions indicating that he had not yet received pre-trial
transcripts, which our court denied based on the trial court’s Notice of Compliance.
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state/STATE.” (Appellant’s Br. p. 16). Instead, without proper citation to
authority, Ankh-El insists that a licensed attorney may be certified by the
supreme court solely to “represent wards of the court, infants and persons of
unsound mind, whom they owe no allegiance should a conflict arise between
their client and the interest of the courts. Nowhere can there be found a
competent attorney that is able to execute the proper remedy without
embarrassing the court.” (Appellant’s Br. pp. 16-17) (citation omitted).
[22] In addition, relying on Gideon v. Wainright, 372 U.S. 335 (1963), Ankh-El
argues that “[l]itigants may be assisted by unlicensed laymen during judicial
proceedings.” (Appellant’s Br. p. 16). We, however, find nothing in Gideon to
support such an assertion. Rather, the Gideon Court established that the Sixth
Amendment right to counsel is a fundamental right that is essential to a fair
trial, and, as such, it is applicable to the states through the Fourteenth
Amendment. Gideon, 372 U.S. at 342-43. Moreover, contrary to Ankh-El’s
claim, the State of Indiana absolutely governs the practice of law. In fact, the
Indiana Supreme Court “has exclusive jurisdiction to . . . admit attorneys to
practice law in all courts of the state.” I.C. § 33-24-1-2(b)(1); see IND. CONST.
art. 7, § 4 (granting the supreme court original jurisdiction over, in part, the
admission to the practice of law and the unauthorized practice of law).
Accordingly, the supreme court has promulgated an extensive list of rules
governing the admission and discipline of attorneys, such as the requirement
that “[n]o person shall be licensed to practice law in this state who has not
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taken and passed a Bar examination.” Ind. Admission & Discipline Rule 17, §
1.
[23] The Indiana Supreme Court’s “authority to set standards for and supervise the
practice of law emanates from the need to protect the public from those who are
not properly licensed or otherwise qualified to act as attorneys.” State ex rel. Ind.
State Bar Ass’n v. Northouse, 848 N.E.2d 668, 671 (Ind. 2006). As our supreme
court has stated, “[t]he practice of law without a license is not a ‘victimless
crime’ because the legal interests of people assisted by those who are not
qualified to act as attorneys can be irreparably damaged.” State ex rel. Ind. State
Bar Ass’n v. Diaz, 838 N.E.2d 433, 443 (Ind. 2005). As such,
[a] person who:
(1) professes to be a practicing attorney;
(2) conducts the trial of a case in a court in Indiana; or
(3) engages in the business of a practicing lawyer;
without first having been admitted as an attorney by the supreme
court commits a Class B misdemeanor.
I.C. § 33-43-2-1. Accordingly, while Ankh-El had every right to privately retain
a licensed lawyer of his choosing, he had no right to demand the assistance of
representatives who are not legally permitted to practice law in Indiana. Thus,
the trial court did not violate Ankh-El’s Sixth Amendment right to counsel.
III. Sufficiency of Evidence
[24] Ankh-El next challenges the probable cause supporting the charges against him.
However, we agree with the State that this issue is more appropriately framed
as whether the State presented sufficient evidence to support Ankh-El’s
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conviction for burglary, forgery, and driving while suspended beyond a
reasonable doubt. When reviewing a claim of insufficient evidence, our court
will only consider the evidence that is most favorable to the verdict, along with
any reasonable inferences derived from that evidence. Freshwater v. State, 853
N.E.2d 941, 942 (Ind. 2006). We do not reweigh evidence or assess the
credibility of witnesses. Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012). “If a
reasonable finder of fact could determine from the evidence that the defendant
was guilty beyond a reasonable doubt, then we will uphold the verdict.” Id.
(quoting Freshwater, 853 N.E.2d at 942).5
A. Burglary
[25] “A person who breaks and enters the building or structure of another person,
with intent to commit a felony in it, commits burglary, a Class C felony.” I.C. §
35-43-2-1 (2011). In this case, there is no dispute that Ankh-El broke into and
entered the Property. Although Ankh-El posits that the Property was owned by
Bank of New York Mellon, rather than Bank of America, he clearly concedes
that the Property was owned by “another person” as required by Indiana Code
section 35-43-2-1. See I.C. § 35-31.5-2-234 (defining “person” to include
5
Ankh-El devotes a significant portion of his argument focusing on whether Forcum had any contractual
right to sell the Property, as well as on the actual ownership of the Property given the complex relationship
between Bank of America and Bank of New York Mellon. We find that these issues are entirely irrelevant to
whether Ankh-El committed the charged offenses. Similarly, Ankh-El’s assertion that Forcum lacked
standing to file a complaint evidences a fundamental misunderstanding of the difference between civil law and
criminal law. Here, the State—not Forcum—filed charges against Ankh-El, alleging that he violated
Indiana’s criminal law. This is not a situation where Forcum filed a civil lawsuit against Ankh-El.
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corporations). On appeal, Ankh-El contends that there is no evidence that he
possessed the intent to commit a felony therein.
[26] “To establish the intent to commit a felony element of a burglary charge, the
State must prove beyond a reasonable doubt the defendant’s intent to commit a
felony specified in the charge.” Freshwater, 853 N.E.2d at 942. The “[i]ntent to
commit a given felony may be inferred from the circumstances, but some fact in
evidence must point to an intent to commit a specific felony.” Id. (alteration in
original) (quoting Justice v. State, 530 N.E.2d 295, 297 (Ind. 1988)). Here, the
Information alleged that Ankh-El broke into and entered the Property “with
intent to commit the felony of theft therein; that is, with intent to knowingly
exert unauthorized control over the property of [Forcum] and/or Bank of New
America and/or Bank of New York, with intent to deprive [Forcum] and/or
Bank of America and/or Bank of New York of any part of its value or use.”
(Appellant’s App. p. 5).
[27] Ankh-El asserts that there is no evidence that he intended to commit a felony
because the evidence establishes that he “was actually living on the [P]roperty”
and “that nothing was out of place.” (Appellant’s Br. pp. 21-22). He indicates
that this case is analogous to Easton v. State, 228 N.E.2d 6, 9, 13 (Ind. 1967), in
which our supreme court found insufficient evidence of felonious intent to
sustain a burglary conviction where the defendant entered a woman’s
apartment by breaking the lock and, upon the owner’s return, was discovered
sitting on the couch watching television; the defendant offered to pay for the
lock as he left and nothing was stolen. We, however, find that there is ample
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evidence of Ankh-El’s intent to commit a felony. Unlike the defendant in
Easton, who left the premises without disturbing anything inside the apartment,
Ankh-El had no intention of vacating the Property. Rather, the evidence
establishes that Ankh-El broke into the house with the intent to use the house as
his personal residence, thereby depriving the Property’s rightful owner(s) of its
value or use. See I.C. § 35-43-4-2(a) (“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,” which is
a Class C felony if the fair market value of the property is at least $100,000.). In
particular, Ankh-El informed Forcum and the IMPD officers that he was the
owner of the Property, which he had recently purchased for $250,000. Ankh-El
created a deed purporting to claim the Property as his own, and he filed this
homemade document with the Marion County Recorder. He also hung a flag
on the front gate, changed all of the locks, and posted multiple signs warning
against trespassing. In addition, Ankh-El moved a number of his personal
belongings into the residence and garage, including clothing, a lawnmower, and
a laptop. Thus, it is apparent that Ankh-El intended to steal the Property from
its owner(s).
[28] Nevertheless, Ankh-El insists that his burglary conviction cannot stand because
he was legally entitled to claim the Property under the doctrine of adverse
possession. “‘[T]he doctrine of adverse possession entitles a person without
title to obtain ownership to a parcel of land upon clear and convincing proof of
control, intent, notice, and duration.’” Altevogt v. Brand, 963 N.E.2d 1146, 1151
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(Ind. Ct. App. 2012) (quoting Fraley v. Minger, 829 N.E.2d 476, 485 (Ind.
2005)). In particular, the claimant: “must exercise a degree of use and control
over the parcel that is normal and customary considering the characteristics of
the land”; “must demonstrate intent to claim full ownership of the tract superior
to the rights of all others, particularly the legal owner”; must undertake actions
“sufficient to give actual or constructive notice to the legal owner of the
claimant’s intent and exclusive control”; and “must satisfy each of these
elements continuously” for a period of ten years. Id. at 1152 (citing Fraley, 829
N.E.2d at). Furthermore, a claimant may not establish title by adverse
possession unless he or she “pays and discharges all taxes and special
assessments that the adverse possessor or claimant reasonably believes in good
faith to be due on the land or real estate during the period the adverse possessor
or claimant claims to have possessed the land or real estate adversely.” I.C. §
32-21-7-1.
[29] Ankh-El contends that he began occupying the Property on February 15, 2012.
He also posits that his “possession of the [P]roperty was open and notorious, as
[his] flag was flown from the gate which [he] had locked; [he] had changed all
of the l[o]cks to all doors and [he] was maintaining the [P]roperty openly
(repairs, landscaping).” (Appellant’s Br. p. 19). Accordingly, Ankh-El now
argues that his rights were superior to those of Forcum or the banks because his
“physical control of the [P]roperty was sufficient to form basis for title.”
(Appellant’s Br. p. 20). We find no merit in Ankh-El’s claim.
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[30] Failure to establish even one of the adverse possession elements by clear and
convincing evidence defeats the claim. Altevogt, 963 N.E.2d at 1152. Ankh-El
asserts that he took possession of the Property on February 15, 2012; however,
Forcum testified that he had been conducting weekly inspections of the
Property, and prior to the week of April 17, 2012, the house was empty and
secure. Regardless, even accepting Ankh-El’s date of February 15, 2012, his
adverse occupancy of the Property barely exceeded two months before he was
arrested and charged with burglary and trespass. As he failed to satisfy the
elements of adverse possession for a continuous ten-year period, Ankh-El has
no claim to the title of the Property. Therefore, we conclude that the State
presented sufficient evidence to support Ankh-El’s conviction for burglary as a
Class C felony.
B. Forgery
[31] “A person who, with intent to defraud, makes, utters, or possesses a written
instrument in such a manner that it purports to have been made . . . with
different provisions[] or . . . by authority of one who did not give authority[]
commits forgery, a Class C felony.” I.C. § 35-43-5-2(b)(3)-(4) (2011). “An
intent to defraud involves an intent to deceive and thereby work a reliance and
an injury.” Diallo v. State, 928 N.E.2d 250, 252 (Ind. Ct. App. 2010). Thus,
“[t]here must be a potential benefit to the maker or potential injury to the
defrauded party.” Id. at 253. As “intent is a mental state, the fact-finder often
must ‘resort to the reasonable inferences based upon an examination of the
surrounding circumstances to determine’ whether—from the person’s conduct
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and the natural consequences therefrom—there is a showing or inference of the
requisite criminal intent.” Id.
[32] In this case, the State alleged that Ankh-El, with an intent to defraud, made a
Freehold in Deed and uttered the same to the IMPD officers “in such a manner
that it purported to have been made with different provisions and/or purported
to have been made by the authority of [Forcum] and/or Bank of America
and/or Bank of New York, who did not give such authority.” (Appellant’s
App. p. 6). On appeal, Ankh-El contends that he filed the Freehold in Deed to
notify the owner that he was “taking possession of the property by right” but
that it “does not purport to be a grant of property.” (Appellant’s Br. p. 20). He
asserts that his document cannot constitute a forgery because it does not “list
the record owner or someone else as a grantor of the [P]roperty.” (Appellant’s
Br. p. 20). Again, we are unpersuaded by Ankh-El’s argument.
[33] Ankh-El created and provided the IMPD officers with a fictitious deed, which
purported to give him ownership rights to the Property. In conjunction with
tendering his Freehold in Deed to the officers, Ankh-El claimed that he had
recently purchased the Property for $250,000; thus, he relied on the deed as
proof of his lawful ownership in order to deceive the officers. See Malcomson v.
State, 391 N.E.2d 633, 637 (Ind. Ct. App. 1979). We find that this satisfies the
forgery statute and therefore affirm his conviction.
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C. Driving While Suspended
[34] A person who:
(1) knows that the person’s driving privilege, license, or permit is
suspended or revoked; and
(2) operates a motor vehicle upon a highway less than ten (10)
years after the date on which judgment was entered against the
person for a prior unrelated [violation for driving while
suspended];
commits a Class A misdemeanor.
I.C. § 9-24-19-2 (2012).
[35] In challenging the sufficiency of the evidence to support his conviction for
driving while suspended, Ankh-El does not contest that his driver’s license was
suspended at the time the IMPD officers observed him driving his Yamaha
motorcycle; nor does he argue that the State failed to establish that he had a
prior violation for driving while suspended within the preceding ten years.
Instead, Ankh-El simply insists that because he “was not operating a vehicle in
a commercial capacity, [he is] not required to have a driver’s license.”
(Appellant’s Br. p. 22). He also claims that the State has no authority to deny
him the right to travel. Ankh-El further asserts, without citing to any authority,
that in order to support a conviction for driving while suspended, the officers
were required to make a valid traffic stop. We disagree.
[36] The driving while suspended statute does not require that an officer discover
that a driver’s license is suspended in the course of a valid traffic stop. It is
sufficient that the IMPD officers observed Ankh-El operating his motorcycle,
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and BMV records later confirmed that Ankh-El’s driver’s license was suspended
at the time and had been suspended within the last ten years. Moreover, while
this court has previously acknowledged that “a fundamental right to travel”
exists, “neither this court, nor our supreme court, nor the United States
Supreme Court has ever held that there exists a fundamental right to drive a
motor vehicle.” Terpstra v. State, 529 N.E.2d 839, 847 (Ind. Ct. App. 1988).
Rather, our General Assembly “has a duty to enact legislation providing for the
general welfare and safety of the people of this state.” Id. at 846. The statutes
governing driving privileges “promote highway safety[,]” which “is a
compelling state interest.” Id. “The statute concerning driver’s licenses ensures
a driver’s ability to maneuver a motor vehicle on public roads in Indiana, thus
promoting public safety.” Id. Accordingly, the General Assembly had the
authority to enact laws requiring valid driver’s licenses as a condition to
operating a motor vehicle on public roads, and if Ankh-El sought to avail
himself of the privilege of operating a vehicle in this state, he was obligated to
comply with Indiana law. Id. at 847. There is sufficient evidence to support
Ankh-El’s conviction for driving while suspended as a Class A misdemeanor.
IV. Charging Information
[37] Ankh-El next claims that his conviction must be reversed because the charging
Information was fatally defective. Indiana law provides that “all prosecutions
of crimes shall be instituted by the filing of an information or indictment by the
prosecuting attorney, in a court with jurisdiction over the crime charged.” I.C.
§ 35-34-1-1(b). Indiana Code section 35-34-1-2 enumerates the criteria for the
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content of an information. “The proper method to challenge deficiencies in a
charging information is to file a motion to dismiss the information, no later
than twenty days before the omnibus date.” Miller v. State, 634 N.E.2d 57, 60
(Ind. Ct. App. 1994) (citing I.C. § 35-34-1-4(b)(1)). In this case, on June 21,
2013, Ankh-El filed a “Demand for Dismissal” in which he alleged that the
Information was defective due to lack of subject matter jurisdiction, failure to
state charged offenses with sufficient certainty, and failure to identify the
defendant with certainty. (Appellant’s App. p. 41).6
[38] On appeal, Ankh-El contends that the Information “failed to give an allegation
of jurisdiction,” which “makes the complaint [sic] facially void.” (Appellant’s
Br. p. 23). Pursuant to Indiana Code section 35-34-1-2(a)(7), a charging
information is required to state “the place of the offense with sufficient
particularity to show that the offense was committed within the jurisdiction of
the court where the charge is to be filed.” In this case, the Information
specifically stated that Ankh-El committed the crimes alleged therein “in
Marion County, Indiana.” (Appellant’s App. p. 5). Therefore, we find no
defect in the Information on this basis.
[39] Ankh-El also contends that the Information failed to adequately name him as
the defendant. Indiana Code section 35-34-1-2(a)(9) stipulates that an
6
As the Chronological Case Summary (CCS) does not specify the omnibus date, we are unable to discern
whether Ankh-El’s dismissal motion was timely filed (although challenges to subject matter jurisdiction may
be made at any time pursuant to Indiana Code section 35-34-1-4(b)). Additionally, Ankh-El’s motion to
dismiss is not reflected in the CCS, and it is unclear whether the trial court ever formally ruled on the motion.
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information must state “the name of every defendant, if known, and if not
known, by designating the defendant by any name or description by which he
can be identified with reasonable certainty.” Here, the Information identified
“WENDELL BROWN” as the defendant. (Appellant’s App. pp. 5-7).
However, according to Ankh-El:
I provided lawful identification, My Moorish American
Nationality Card, to an officer of STATE OF INDIANA [(i.e., a
notary public),] who acknowledged that I Am Menes Ankh El
and I signed the “FREEHOLD IN DEED” in front of her. The
“FREEHOLD IN DEED”, so acknowledged, is entitled to be
received in evidence in the courts of STATE OF INDIANA
without further authentication that I Am Menes Ankh El.
STATE OF INDIANA’S and the court’s attempt to make Me be
the BLACK MALE, WENDELL BROWN is contrary to the
evidence provided by STATE OF INDIANA. Therefore, I am
not WENDELL BROWN and cannot be reasonably identified as
such and the STATE OF INDIANA failed to prove such, and
thus leaving the court wanting for personal jurisdiction.
(Appellant’s Br. p. 24) (citation omitted).
[40] Ankh-El argued in a pre-trial motion for dismissal that the Information’s
reference to him as Wendell Brown, rather than Ankh-El, constitutes
“denationalization and violation of the 13th Amendment prohibitions of slavery
and involuntary servitude[,]” but he never contended that he and Wendell
Brown are not the same person. (Appellant’s App. p. 42). As such, we find
that Ankh-El is raising this argument for the first time on appeal and has
therefore waived the issue. See King v. State, 799 N.E.2d 42, 47 (Ind. Ct. App.
2003) (“[A] defendant is limited to the grounds advanced at trial and may not
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raise a new ground for objection for the first time on appeal.”), trans. denied; cert.
denied, 543 U.S. 817 (2004). Waiver notwithstanding, Ankh-El’s argument fails.
The Information need only identify “the defendant by any name or description
by which he can be identified with reasonable certainty.” I.C. § 35- 34-1-
2(a)(9). Following Ankh-El’s arrest, his fingerprints established his identity as
Wendell Brown. Moreover, Ankh-El acknowledged to the trial court that he
was formerly known as Wendell Brown, and there is no indication that Ankh-El
ever legally changed his name from Wendell Brown.
Accordingly, we find that the Information adequately identified him as the
defendant.
[41] Ankh-El next challenges the adequacy of the description of his offenses in the
Information. An information is required to set “forth the nature and elements of
the offense charged in plain and concise language without unnecessary
repetition.” I.C. § 35-34-1-2(a)(4). Similarly, Indiana Code section 35-34-1-2(d)
further provides that the information “shall be a plain, concise, and definite
written statement of the essential facts constituting the offense charged.” Ankh-
El argues that the State’s repeated use of the phrase “and/or” in the burglary
and forgery charges “substantially prejudiced [his] rights to due process, as
proper defense preparation was hindered.” (Appellant’s Br. p. 25). In
particular, Ankh-El challenges the language in the burglary Count that he broke
and entered a building belonging to “Forcum and/or Bank of America and/or
Bank of New York.” (Appellant’s App. p. 5). Likewise, for the forgery Count,
Ankh-El points to language that he “ma[d]e and/or utter[ed] to Officer Brian
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McCann and/or Officer Matthew Addington and/or Detective Brian
Hoffmeister a written instrument . . . in such a manner that it purported to have
been made . . . by the authority of [Forcum] and/or Bank of America and/or
Bank of New York.” (Appellant’s App. pp. 5-6). According to Ankh-El, “[t]he
phrase ‘and/or’ is being used as a catch all which is improper and leaves the
charges wanting for clarity.” (Appellant’s Br. p. 25). We disagree.
[42] The purpose of an information is to advise a defendant of the crime with which
he is charged so that he may prepare a defense. Miller, 634 N.E.2d at 61. Here,
the Information adequately apprised Ankh-El that he was being charged with
breaking and entering the Property and with forging a deed that purported to
grant him ownership rights in the Property. There were complex contractual
issues regarding the ownership of the Property between the banks, and Forcum
acted as a representative of the banks, but the ultimate ownership of the
Property among these three entities has no bearing on Ankh-El’s ability to
defend against the claims that he committed burglary and forgery. Likewise, it
is entirely irrelevant to which of the three IMPD officers Ankh-El tendered his
Freehold in Deed as the Information makes it abundantly clear that Ankh-El
purportedly used the Freehold in Deed in an attempt to convince the officers
that he owned the Property. Thus, the Information is not defective for failure to
set forth the charged offenses in plain and concise language.
V. Fundamental Error
[43] Finally, Ankh-El claims that the trial court exhibited prejudice which resulted
in fundamental error. “The fundamental error doctrine permits a reviewing
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court to consider the merits of an improperly raised error if the reviewing court
finds that the error was so prejudicial to the rights of the appellant that he could
not have had a fair trial.” Madden v. State, 656 N.E.2d 524, 526 (Ind. Ct. App.
1995), trans. denied. “A fundamental error is a substantial, blatant violation of
basic principles of due process rendering the trial unfair to the defendant.” State
v. Eubanks, 729 N.E.2d 201, 206 (Ind. Ct. App. 2000), trans. denied. The
fundamental error doctrine is a narrow exception to the general rule that an
objection must be raised to preserve an error for appeal; thus, it is applied only
where “the harm or potential for harm [can]not be denied.” Id. (alteration in
original) (quoting Canaan v. State, 683 N.E.2d 227, 235-36 n.6 (Ind. 1997)).
[44] Our review of the record reveals that prior to trial, Ankh-El filed a plethora of
motions, most of which failed to present sound, comprehensible legal
arguments. According to Ankh-El, the trial court committed fundamental error
by failing “to give any of [his] motions or affidavits proper consideration and
there were no hearings held on any of the motions and affidavits which
pertained to the jurisdiction or the subject-matter of the action.” (Appellant’s
Br. p. 26). We first note that the CCS does not include any information about
matters that occurred prior to trial, so we are unable to discern how Ankh-El’s
motions were actually handled. Indiana Trial Rule 53.1(A) provides:
In the event a court fails for thirty (30) days to set a motion for
hearing or fails to rule on a motion within thirty (30) days after it
was heard or thirty (30) days after it was filed, if no hearing is
required, upon application by an interested party, the submission
of the cause may be withdrawn from the trial judge and
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transferred to the [Indiana] Supreme Court for the appointment
of a special judge.
There is no indication here that Ankh-El availed himself of this procedure upon
the trial court’s failure to rule on his various motions. Moreover, on appeal,
Ankh-El has failed to set forth a cogent argument regarding how the trial
court’s denial, or deemed denial, of his motions deprived him of a fair trial. See
Ind. App. R. 46(A)(8)(a). Accordingly, Ankh-El has failed to satisfy his burden
to demonstrate that the trial court committed fundamental error on this basis.
[45] Ankh-El also contends that the trial court committed fundamental error by
“refus[ing] to allow [him] to present [his] defense, which was based on the
doctrine of [a]dverse [p]ossession.” (Appellant’s Br. p. 26). We find that this
contention lacks any support in the record. During Ankh-El’s cross-
examination of Forcum at trial, Ankh-El asked Forcum whether he had “ever
heard of adverse possession” or was “aware of Indiana statutes on adverse
possession.” (Tr. pp. 186-87). The State objected on grounds of relevance, and
the court sustained the State’s objection. Thereafter, during his case-in-chief,
Ankh-El presented no evidence in support of a defense theory of adverse
possession, and he did not request that the jury be instructed on adverse
possession. Thus, he cannot argue now that the trial court prevented him from
presenting such a defense. Furthermore, even if the trial court had denied
Ankh-El the opportunity to present an adverse possession defense, it would not
have had any impact on the outcome of the case. As already discussed at
length, Ankh-El’s adverse possession claim is entirely meritless in light of the
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fact that he did not meet the requisite duration for adverse possession. Thus,
there is no error, let alone fundamental error.
CONCLUSION
[46] Based on the foregoing, we conclude that the trial court had subject matter
jurisdiction over this case; the trial court did not violate Ankh-El’s Sixth
Amendment right to counsel; the State presented sufficient evidence to support
Ankh-El’s conviction for burglary, forgery, and driving while suspended beyond
a reasonable doubt; the charging Information was not defective; and the trial
court did not commit fundamental error.
[47] Affirmed.
[48] Bailey, J. and Barnes, J. concur
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