Percy Lee Blake v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Aug 21 2015, 8:42 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
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
Mark A. Bates Gregory F. Zoeller
Office of the Lake County Public Attorney General of Indiana
Defender
Karl M. Scharnberg
Crown Point, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Percy Lee Blake, August 21, 2015
Appellant-Defendant, Court of Appeals Case No.
45A05-1412-CR-563
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Diane Ross
Appellee-Plaintiff Boswell, Judge
Trial Court Cause No.
45G03-1112-FC-154
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-563 | August 21, 2015 Page 1 of 4
[1] Percy Blake pleaded guilty to theft after making purchases with Citibank credit
cards that he obtained fraudulently. The trial court ordered him to pay
restitution to Citibank in the amount of $8,715.87. Blake appeals, arguing that
this amount is too high. Finding sufficient evidence to support this amount, we
affirm.
Facts
[2] On December 22, 2011, the State charged Blake with fraud on a financial
institution, a class C felony, and synthetic identity deception, a class D felony.
On July 18, 2014, the State amended the charge, adding one count of theft, a
class D felony. That same day, Blake entered into a plea agreement, in which
he agreed to plead guilty to theft in exchange for dismissal of the two original
counts. The agreement left sentencing open, allowing both parties to argue
their positions at a later hearing.
[3] On October 30, 2014, the trial court held this hearing. After accepting Blake’s
guilty plea, the trial court sentenced him to three years in the Department of
Correction, to be served in the Lake County Community Corrections
Kimbrough Work Program. It also ordered that he pay Citibank $8,715.87 in
restitution, as a Citibank representative testified at the hearing that Blake had
used fraudulently obtained credit cards to make purchases in this amount.
Blake now appeals, challenging the amount of restitution.
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Discussion and Decision
[4] Blake believes the evidence presented at the hearing was insufficient to support
the trial court’s award of restitution in the amount of $8,715.87. We review a
trial court’s order of restitution for an abuse of discretion. Rich v. State, 890
N.E.2d 44, 49 (Ind.Ct.App.2008). An order of restitution must be supported by
sufficient evidence of the actual loss sustained by the victim. Id. “The amount
of actual loss is a factual matter that can be determined only upon the
presentation of evidence.” Id. (quotations omitted). Under an abuse of
discretion standard, we will not reverse the trial court “if there is any rational
basis in the record supporting its determination.” Shady v. Shady, 858 N.E.2d
128, 143 (Ind. Ct. App. 2006).
[5] At the hearing, the State called Bryan Rozanski, a representative of Citibank, to
testify. Rozanski testified that, after reviewing Citibank’s records, he believed
that Blake had made $8,715.87 in purchases using fraudulently obtained credit
cards while in Indiana. Tr. p. 19. The records that Rozanski relied on were not
entered into evidence. On cross-examination, Rozanski testified that he was
not aware of who had signed for the purchases. Tr. p. 20. Blake presented no
evidence of his own, but argued to the trial court that he believed he had only
made approximately $3,000 worth of fraudulent purchases while in Indiana.
Tr. p. 21. The trial court found Rozanski’s testimony to be credible, and
ordered Blake to pay restitution in the amount of $8,715.87.
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[6] While Blake disagrees with the trial court’s decision, we believe this evidence
was sufficient to allow the trial court to reasonably conclude as it did. Here,
Blake had admittedly exerted unauthorized control over Citibank credit cards.
Tr. p. 8-10. Following Rozanski’s testimony, Blake did not contend that he did
not make fraudulent purchases using the accounts that Rozanski referenced nor
did he question Rozanski’s ability to review the records of those accounts
properly. In fact, he assured the trial court that he was not taking issue with the
amounts reflected in those records. Tr. p. 37. His argument boiled down to
little more than the insinuation that someone else could have used the cards to
make some of the purchases, an argument he reiterates on appeal. 1 Tr. p. 35-37.
[7] Blake has not shown that the evidence supporting the trial court’s conclusion is
insufficient, he merely proposes a different set of facts. However, we leave
factual determinations to the trial court and, on appeal, we do not reweigh the
evidence or judge the credibility of the witnesses. Shady, 858 N.E.2d at 143.
Accordingly, we may not entertain Blake’s request.
[8] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
1
Blake argued that there was more than one authorized user on the account and that, because the State could
not produce evidence of who had signed for the purchases, it could not show that Blake had made the
purchases. However, the State pointed out that Blake was not signing under his own name and that, had the
case gone to trial, it would have introduced evidence that Blake was acting as both authorized users under
two aliases and that he had been caught carrying false identification corresponding to both of those aliases.
Blake did not object to these assertions. Tr. p. 28-31.
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