Michael Wayne Wise, Sr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
May 13 2016, 8:25 am
Pursuant to Ind. Appellate Rule 65(D), CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James D. Crum Gregory F. Zoeller
Coots, Henke & Wheeler, P.C. Attorney General of Indiana
Carmel, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Wayne Wise, Sr., May 13, 2016
Appellant-Defendant, Court of Appeals Case No.
29A02-1509-CR-1377
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Steven R. Nation,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D01-1412-FC-9933
Robb, Judge.
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Case Summary and Issues
[1] Following a bifurcated trial, Michael Wayne Wise, Sr., was convicted of check
fraud as a Class C felony and found to be an habitual offender. Wise appeals,
raising two issues, which we restate as (1) whether the trial court abused its
discretion by admitting evidence in violation of Indiana Evidence Rule 404(b),
and (2) whether the evidence is sufficient to support his conviction for check
fraud. Concluding the trial court did not abuse its discretion and the evidence is
sufficient, we affirm.
Facts and Procedural History
[2] In 2014, Wise operated an auto repair business in Noblesville, Indiana. In
March of that year, the Noblesville Police Department began investigating
Wise’s business for check fraud after he passed a number of bad checks to
Prime Automotive Warehouse, Inc. (“Prime”). Wise ordered auto parts from
Prime on March 14 and 17 and received the items in separate shipments on
March 17 and 18. He paid for the merchandise with checks linked to an
Ameriana Bank (“Ameriana”) account that had been closed since May 23,
2012. When the checks were subsequently dishonored, Prime contacted the
Noblesville Police Department.
[3] On April 1, Detective Timothy Hendricks obtained a search warrant for Wise’s
property, which authorized officers to seize (1) any Ameriana checks,
checkbooks, or bank statements issued to “Michael Wise” for account number
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0527688099, and (2) any of the items listed on the invoices detailing the
deliveries made on March 17 and 18. State’s Exhibit 1. 1 During the search of
Wise’s property, officers recovered “between 90 to 95 percent” of the almost
$3,000 in merchandise delivered on March 17 and 18,2 as well as two sets of
Ameriana checks. Transcript at 162-63. Both sets of checks were issued for
account number 0527688099, but they listed different addresses. One set of
checks was issued to “Michael Wayne Wise” and listed an address in
Greenfield, Indiana. State’s Ex. 19. Another set was issued to “Main Street
Automotive d/b/a Michael Wise” and listed the Noblesville address where
Wise had been living since November 2013. State’s Ex. 9; tr. at 242. Wise was
not present when the officers searched his property.
[4] On April 7, Detective Hendricks returned to Wise’s property in an attempt to
locate Wise. Detective Hendricks entered the garage on the property and
encountered a man who identified himself as “Josh Dawson.” Tr. at 167.
When Detective Hendricks told the man he was looking for Wise, the man said
Wise was unavailable but provided a phone number where Wise could be
reached. Detective Hendricks next walked to the residence on the property and
knocked on the door. A woman answered, and after speaking with her,
Detective Hendricks decided to go back to the garage, which then appeared
1
Prior to obtaining the search warrant, Detective Hendricks acquired bank records from Ameriana showing
Wise used Ameriana checks, account number 0527688099, to pay for the items he ordered from Prime in
March 2014. Tr. at 154.
2
Some of the other items were recovered from a pawnshop in Lawrence, Indiana.
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empty. Detective Hendricks called out Wise’s name, but no one answered. He
then noticed the trunk of one of the vehicles parked inside the garage was
slightly ajar and discovered the man who identified himself as “Josh” hiding
inside. “Josh” was actually Wise.
[5] A week later, on April 14, Wise opened a business checking account with PNC
Bank (“PNC”) under the name “Michael Wise Sr. d/b/a Auto Smart & All Pro
Towing.” State’s Ex. 20. By June, the account was overdrawn and closed. In
the interim, Wise opened a business account with O’Reilly Auto Parts
(“O’Reilly”), which allowed Wise to order parts for delivery. He paid for each
order upon delivery because he did not qualify for a line of credit. From June
to July, Wise wrote six checks from the closed PNC account to pay for
deliveries made by O’Reilly: (1) $143.88 on June 20, (2) $193.50 on June 27, (3)
$27.10 on June 30, (4) $354.80 on June 30, (5) $332.10 on July 1, and (6)
$211.97 on July 3. It is unclear from the record when exactly the PNC account
was closed, but each of the six checks Wise issued to O’Reilly was returned
because the account was closed.3
[6] In early July, an O’Reilly manager visited Wise’s business to confront Wise
about the dishonored checks. He told Wise he would turn the matter over to
the prosecutor’s office if Wise did not pay by the end of the month. Wise
3
The PNC statement for May 1 to May 30 shows $241.89 in deposits, $106.45 in deductions, $72.00 in
returned items fees, and an ending balance of $0.00. The statement for May 31 to August 18 shows no
deposits, deductions, or fees and an ending balance of $0.00.
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immediately paid for the $27.10 order, plus a $20.00 fee, but he never paid for
the other deliveries. The manager returned to Wise’s business three times
during the month of July, but he never saw Wise again and eventually filed a
bad check affidavit with the prosecutor’s office.
[7] Finally, in November, Wise ordered $1,511.57 in oil products from Walker Oil,
Inc. (“Walker”) and paid for the order with another check from the closed PNC
account. When the check was subsequently dishonored, Walker was unable to
reach Wise with the phone numbers he provided and ultimately contacted the
prosecutor’s office.
[8] Relevant here, the State charged Wise with check fraud, a Class D felony, and
check fraud with a prior conviction, a Class C felony, for the checks he issued
to O’Reilly in June. The State also alleged he was an habitual offender. Prior
to trial, the State filed its notice of intent to offer evidence under Indiana
Evidence Rule 404(b), which the trial court permitted as to the checks Wise
issued to Prime in March, to O’Reilly in July, and to Walker in November. 4 A
bifurcated trial was held in July 2015. When the State offered evidence of
Wise’s other bad checks, the trial court admitted the evidence over defense
objection. At the conclusion of the first phase of the trial, a jury found Wise
guilty of check fraud as a Class D felony. Wise waived his right to a jury trial
for the second phase. The trial court found him to be an habitual offender and
4
The State charged each of these occurrences under separate cause numbers.
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guilty of check fraud as a Class C felony. The trial court merged the Class D
felony and entered judgment of conviction on the Class C felony and the
habitual offender enhancement. The trial court ordered Wise to serve eight
years in the Department of Correction, enhanced by an additional eight years,
for an aggregate sentence of sixteen years executed in the Department of
Correction. This appeal followed.
Discussion and Decision
I. Admission of Evidence
A. Standard of Review
[9] A trial court has broad discretion in ruling on the admissibility of evidence.
Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). We review its rulings for
abuse of discretion, which occurs only if the decision was clearly against the
logic and effect of the facts and circumstances. Id. We will not reverse the trial
court’s decision to admit evidence if the decision is sustainable on any ground.
Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002).
B. Crimes, Wrongs, or Other Acts
[10] Wise contends the trial court erred in admitting evidence of the checks he
issued to Prime in March and Walker in November. He argues the evidence
should have been excluded under Evidence Rule 404(b) because it shows
nothing more than his “occasional propensity to write bad checks.” Appellant’s
Brief at 10. “Rule 404(b) is designed to prevent the jury from making the
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forbidden inference that prior wrongful conduct suggests present guilt.”
Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013) (citation and internal
quotation marks omitted). Evidence Rule 404(b)(1) provides, “Evidence of a
crime, wrong, or other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in accordance with
the character.” This type of evidence may be admissible for other purposes,
however, “such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Ind. Evidence
Rule 404(b)(2). These exceptions “apply to evidence of acts committed both
before and after the crime charged.” Hazelwood v. State, 609 N.E.2d 10, 16 (Ind.
Ct. App. 1993), trans. denied; see also Southern v. State, 878 N.E.2d 315, 321-22
(Ind. Ct. App. 2007) (noting the wording of Rule 404(b) “does not suggest that
it only applies to prior bad acts and not subsequent ones”), trans. denied. In
assessing the admissibility of Rule 404(b) evidence, the trial court must (1)
determine that the evidence of other crimes, wrongs, or acts is relevant to a
matter at issue other than the defendant’s propensity to commit the charged
offense, and (2) balance the probative value of the evidence against its
prejudicial effect under Evidence Rule 403. Bishop v. State, 40 N.E.3d 935, 951
(Ind. Ct. App. 2015), trans. denied.
[11] Evidence may be admitted to prove intent “when a defendant goes beyond
merely denying the charged culpability and alleges a particular contrary intent,
whether in opening statement, by cross-examination of the State’s witnesses, or
by presentation in defendant’s own case-in-chief.” Lafayette v. State, 917 N.E.2d
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660, 663 (Ind. 2009). Intent is a mental state; “absent an admission, the jury
must resort to the reasonable inferences based upon an examination of the
surrounding circumstances to determine whether, from the person’s conduct
and the natural consequences that might be expected from that conduct, there
exists a showing or inference of the required criminal intent.” Germaine v. State,
718 N.E.2d 1125, 1132 (Ind. Ct. App. 1999), trans. denied. “An intent to
defraud involves an intent to deceive and thereby work a reliance and injury.”
Williams v. State, 892 N.E.2d 666, 671 (Ind. Ct. App. 2008) (citation omitted),
trans. denied.
[12] At trial, defense counsel conceded Wise wrote bad checks and knew the
accounts were closed but argued Wise never intended to defraud O’Reilly. See
Tr. at 149-50. Defense counsel maintained Wise was simply not a good
businessman. Because Wise specifically alleged he did not intend to defraud
O’Reilly, we conclude the checks Wise issued to Prime and Walker were
properly admitted to prove intent. See Lafayette, 917 N.E.2d at 663. Wise
issued two checks totaling $2,735.21 from the Ameriana account that had been
closed for almost two years.5 Two weeks after the police executed a search
warrant to investigate Wise for passing bad checks from the closed Ameriana
account, Wise opened a new checking account with PNC under a different
name. The checks linked to the Ameriana account indicated the name of
5
We would also note one of the sets of Ameriana checks found on Wise’s property listed his Noblesville
address—an address he established over a year after the Ameriana account was closed.
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Wise’s business was “Main Street Automotive,” State’s Ex. 9, but he opened
the PNC account under the name “Auto Smart & All Pro Towing,” State’s Ex.
20. Thereafter, Wise deposited less than $250.00 into the PNC account but
issued six checks to O’Reilly in a two-week period, totaling $1,263.35. Each of
those checks was returned because the PNC account was closed. Several
months later, Wise again passed a check from the closed PNC account to pay
for $1,511.57 in oil products from Walker.
[13] Evidence of these transactions strongly suggests Wise was not merely
floundering in his attempt to run a business but actively engaged in a scheme to
obtain tools and parts by passing bad checks. And given the probative value of
this evidence, we cannot conclude the checks should have been excluded as
unduly prejudicial. See Hazelwood, 609 N.E.2d at 16 (“Despite extrinsic
evidence’s tendency to show bad character or criminal propensity, it is
admissible so long as it makes the existence of an element of the crime charged
more probable than it would be without the evidence.”). The trial court did not
abuse its discretion by admitting evidence of the checks Wise issued to Prime
and Walker because Wise placed his intent in issue, and the transactions tend to
prove intent.
II. Sufficiency of Evidence
A. Standard of Review
[14] Wise also contends the evidence is insufficient to support his conviction for
check fraud. In reviewing the sufficiency of the evidence, we consider only the
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probative evidence and reasonable inferences that support the verdict. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). We consider conflicting evidence most
favorably to the trial court’s ruling and will affirm the conviction unless no
reasonable fact-finder could find the elements of the offense proven beyond a
reasonable doubt. Id. “It is the fact-finder’s role, not that of appellate courts, to
assess witness credibility and weigh the evidence to determine whether it is
sufficient to support a conviction.” Id.
B. Check Fraud
[15] A person commits check fraud as a Class D felony when he knowingly obtains
property, through a scheme or artifice, with intent to defraud, by issuing or
delivering a check, knowing that the check will not be paid or honored by the
financial institution upon presentment in the usual course of business. Ind.
Code § 35-43-5-12(b)(1)(A) (1998). The offense is a Class C felony if the person
has a prior unrelated conviction for check fraud. Id.
[16] During trial, the State presented evidence of Wise’s transactions with Prime,
O’Reilly, and Walker, occurring between March and November of 2014, but
only the checks he issued to O’Reilly in June provided the basis for the charge
in this case. Wise argues the evidence is insufficient to support his conviction
for check fraud because there was no evidence showing he acted with intent to
defraud. He contends the State proved check deception at best because “[t]he
inference that could be drawn from the evidence was simply that [he] was a
poor business man.” Appellant’s Br. at 7; see also Ind. Code § 35-43-5-5(a)
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(2003) (providing a person who knowingly issues a check for the payment of or
to acquire money or other property, knowing that it will not be paid or honored
by the credit institution upon presentment in the usual course of business,
commits check deception, a Class A misdemeanor).
[17] Although the check fraud statute does not define “defraud,” we have previously
looked to the Indiana Uniform Securities Act, which defines “defraud” as “a
misrepresentation of a material fact, a promise or representation or prediction
not made honestly or in good faith, or the failure to disclose a material fact
necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading.” Childers v. State,
813 N.E.2d 432, 435 (Ind. Ct. App. 2004) (quoting Ind. Code § 23-2-1-1(d)
(2000), accord Ind. Code § 23-19-1-2(9)). In addition, we have stated intent to
defraud may be proven by circumstantial evidence and presumed from the
general conduct of the defendant. Williams, 892 N.E.2d at 671.
[18] First, Wise issued two checks from the Ameriana account that had been closed
for almost two years. These transactions gave rise to the search warrant for
Wise’s property, and when the police attempted to speak with Wise after the
search, he lied about his name and hid. A week later, Wise opened a new
account with PNC under a different business name. He deposited less than
$250.00 into the PNC account during the month of May and made no deposits
in the following months. Nonetheless, Wise issued six PNC checks to O’Reilly
in a two-week period, four of which are dated in June, for a total of $719.28: (1)
$143.88 on June 20, (2) $193.50 on June 27, (3) $27.10 on June 30, and (4)
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$354.80 on June 30. All of the checks were returned because the PNC account
was closed. Wise paid for the $27.10 order when the O’Reilly manager
confronted him in early July, but the manager could not locate Wise after this
and never received payment for the other deliveries. Several months later Wise
issued yet another check from the closed PNC account—this time to Walker,
for $1,511.57. When this check was dishonored, Walker was unable to reach
Wise with the phone numbers he provided.
[19] Each time Wise paid for an order with a check, he implicitly represented the
check would be honored, notwithstanding the fact that his bank accounts were
either empty or closed during most of the period in question. See Tr. at 149-50
(defense counsel conceding Wise knew the accounts were closed). When the
checks were dishonored, Wise was evasive and continued to write bad checks.
It is reasonable to infer from the nature of these transactions and Wise’s general
conduct that he intended to deceive, see Williams, 892 N.E.2d at 671, and made
representations to O’Reilly in bad faith, see Childers, 813 N.E.2d at 435.
Accordingly, we conclude the evidence is sufficient to support Wise’s
conviction for check fraud.
Conclusion
[20] The trial court did not abuse its discretion by admitting evidence under Indiana
Evidence Rule 404(b), and the evidence is sufficient to support Wise’s
conviction for check fraud. We therefore affirm.
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[21] Affirmed.
Barnes, J., and Altice, J., concur.
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