Erica Battle v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Jun 19 2013, 7:04 am
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:
MICHAEL R. FISHER GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ERICA BATTLE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1211-CR-924
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIO COURT
The Honorable Robert R. Altice, Jr., Judge
The Honorable Amy J. Barbar, Magistrate
Cause No. 49G02-1203-FC-20453
June 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Erica Battle (“Battle”) was convicted of three counts of Forgery, as Class C felonies.1
She now appeals, raising one issue for our review: whether there was sufficient evidence to
support her convictions.
We affirm in part, reverse in part, and remand.
Facts and Procedural History
Battle applied for employment with the Indiana Department of Insurance (“IDOI”) as
an administrative assistant in the Medical Malpractice Division. On December 22, 2011,
Battle was interviewed for the position and was considered a strong candidate for the job; she
was therefore asked to consent to a background check to be performed by the State Personnel
Department (“SPD”). Battle represented on her application form that she did not have a
criminal history, and during the interview Battle was informed that a background check
would be required. Battle mentioned that she had been the victim of identity theft and that
criminal convictions had been incorrectly entered against her as a result, and that she had
paperwork that would establish the veracity of her claims.
The SPD background check ultimately revealed prior criminal convictions, as a result
of which Battle was disqualified from the administrative assistant position.
On January 9, 2012, Battle appeared at the IDOI’s reception area and told the
receptionist that she had been hired and was appearing for her first day of work. The
receptionist contacted Barbara Lohman (“Lohman”), Chief Financial Officer for the IDOI,
1
Ind. Code § 35-43-5-2(b).
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who received paperwork from Battle that, Battle claimed, showed that the convictions
identified by the background check were entered in error. The papers Battle presented were
styled as motions filed by Marion County deputy prosecutors to dismiss criminal charges
against her, with signatures from Marion County Superior Court judges purporting to dismiss
the charges. On accompanying documents, the reason provided for the motions to dismiss
was listed as “identity theft.”
Lohman provided the papers to Nancy Tunget (“Tunget”), a human resources director
for the IDOI, who in turn provided them to the Commissioner of Insurance, Stephen
Robertson (“Robertson”). Robertson in turn provided the documents to an attorney with the
IDOI with instructions to give the documents to the IDOI’s investigator, Michael Herndon
(“Herndon”). Seeking to verify the authenticity of the motions, Herndon provided copies of
the documents to the Marion County Prosecutor’s Office. After an investigation, it was
determined that the documents Battle presented to Lohman were not authentic.
On March 27, 2012, Battle was charged with three counts of Forgery. A bench trial
was conducted on August 8, 2012, at the conclusion of which the trial court found Battle
guilty of each charged offense. On October 24, 2012, a sentencing hearing was conducted, at
the conclusion of which Battle was sentenced to three concurrent terms of five years
imprisonment, with all three sentences suspended to probation.
This appeal ensued.
Discussion and Decision
Battle’s sole argument on appeal contends that the State did not introduce sufficient
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evidence to sustain her conviction. Our standard of review in such cases is well-settled:
This court will not reweigh the evidence or assess the credibility of witnesses.
Cox v. State, 774 N.E.2d 1025, 1028 (Ind. Ct. App. 2002). Only the evidence
most favorable to the judgment, together with all reasonable inferences that
can be drawn therefrom will be considered. Id. If a reasonable trier of fact
could have found the defendant guilty based on the probative evidence and
reasonable inferences drawn therefrom, then a conviction will be affirmed. Id.
at 1028-29.
Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007).
Here, Battle was convicted of three counts of Forgery, as Class C felonies. To convict
Battle of each count of Forgery, the State was required to prove beyond a reasonable doubt
that Battle, with intent to defraud, knowingly made or uttered written instruments—each
captioned “State’s Motion to Dismiss”—in such a manner that the instruments purported to
have been made by another person, with different provisions, or by authority of individuals
who did not give that authority. I.C. § 35-43-5-2(b); App. at 21-28.
Battle contends that the State failed to prove that she uttered the false motions to
dismiss with the intent to defraud required by the statute. “A person engages in conduct
‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” I.C.
§ 35-41-2-2(a). Intent is a mental function, and absent an admission by the defendant intent
“must be determined from a consideration of the defendant’s conduct and the natural and
usual consequences thereof.” Spann v. State, 632 N.E.2d 741, 743 (Ind. Ct. App. 1994)
(citing Metzler v. State, 540 N.E.2d 606, 609 (Ind. 1989)). “The trier of fact usually must
resort to ‘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
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expected from that conduct, a showing or inference [of] the intent to commit that conduct
exists.’” Id. (quoting Metzler, 540 N.E.2d at 609.)
As this Court has previously observed, “‘[t]here must be a potential benefit to the
maker or potential injury to the defrauded party.’” Diallo v. State, 928 N.E.2d 250, 253 (Ind.
Ct. App. 2010) (quoting Jacobs v. State, 640 N.E.2d 61, 65 (Ind. Ct. App. 1994)).
Interpreting the requirement of intent to defraud, in Eifler v. State, 570 N.E.2d 70 (Ind. Ct.
App. 1991), we looked to our supreme court’s interpretation of the theft statute and observed,
“‘[w]hen the natural and usual consequences of the conduct charged and proved are not such
as would effect the wrong which the statute seeks to prevent, the intent to effect that wrong is
not inferable.’” Id. at 77 (quoting State v. McGraw, 480 N.E.2d 552, 554 (Ind. 1985)). Thus,
we held that even if an instrument is fraudulently made, there was insufficient evidence of
intent to defraud requisite for a conviction for forgery where the allegedly forged instrument
would not cause reliance resulting in the granting of a benefit for which the defendant was
not entitled (in Eifler, municipal sewer tap-in rates specified by a local ordinance). Id. at 77-
78.
In support of her argument that she lacked the requisite intent for conviction for
Forgery, Battle directs our attention to a decision by another panel of this Court, Bocanegra
v. State, 969 N.E.2d 1026 (Ind. Ct. App. 2012), trans. denied. In Bocanegra, the defendant
was in the United States illegally and used another person’s identity to obtain employment.
Id. at 1027. Addressing the requirements for proving intent to defraud as required by the
Forgery statute at issue here, the Bocanegra Court held that intent to defraud requires intent
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to deceive resulting in reliance and a resultant injury. Id. at 1029-30. The Court went on to
conclude that the resultant injury need not be actual, but may instead be potential. Id. at 1030
(citing, inter alia, In re Sniadecki, 924 N.E.2d 109, 118 (Ind. 2010); Jacobs, 640 N.E.2d at
65).
In the Bocanegra case, the potential injury arose from Bocanegra’s immigration status
subjecting his employer to potential penalties associated with “hiring a person who was not
legally permitted to work.” Id. at 1029. Here, Battle contends that her circumstances fall
outside the scope of even the potential injury this Court concluded in Bocanegra was required
to convict a defendant of Forgery. Specifically, Battle contends that there was no evidence
that she had any intent other than to obtain employment, and that her submission of the
falsified documents to the IDOI posed no potential injury.
We disagree. Here, Battle submitted falsified court documents in order to obtain
employment in a position with the IDOI. As early as her December 22, 2011 job interview,
Battle was aware that a background check could be conducted by the IDOI or another State
agency on IDOI’s behalf, and offered to provide documentation that would establish the
erroneous nature of the criminal record results of a background check. That is, Battle
submitted the fictitious motions to dismiss in order to cause the State to rely upon those
documents, and not the results of the background check, in making a hiring decision. Among
the natural and probable results of this would be the hiring of Battle into a position for which
she was not qualified—that is, the fraudulent motions would cause Battle to accrue a benefit
to which she was not entitled. See Eifler, 570 N.E.2d at 77.
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Moreover, if Battle were hired on the basis of falsified records, among the natural
consequences of Battle’s uttering of the forged motions was that those records could remain
in the State’s personnel systems and form the basis for retention and promotion decisions.
Looking to the rulings of our sister states with respect to the intent to defraud element of the
offense of forgery, we think this result sufficient to support the trial court’s guilty finding in
Battle’s case. See, e.g., Arizona v. Thompson, 981 P.2d 595, 598 (Ariz. Ct. App. 1999)
(finding sufficient evidence to sustain a conviction for forgery and holding that where the
defendant’s forging of vehicle registrations “intentionally undermined the authenticity and
accuracy” of motor vehicle records, the element of intent was met even without evidence of
pecuniary harm).
Thus, we agree with the State that there was sufficient evidence upon which the State
could obtain a conviction against Battles for Forgery, as charged.
This does not end our analysis, however. For while we conclude there was sufficient
evidence to sustain Battle’s convictions, we are also required to raise sua sponte the question
of double jeopardy “because a double jeopardy violation, if shown, implicates fundamental
rights.” Smith v. State, 881 N.E.2d 1040, 1047 (Ind. Ct. App. 2008).
The double jeopardy clause of the Indiana Constitution provides that “[n]o person
shall be put in jeopardy twice for the same offense.” Ind. Const. art. I, § 14. In Richardson
v. State, the Indiana Supreme Court held that “two or more offenses are the ‘same offense’
… if, with respect to either the statutory elements of the challenged crimes or the actual
evidence used to convict, the essential elements of one challenged offense also establish the
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essential elements of another challenged offense.” 717 N.E.2d 32, 49 (Ind. 1999) (emphasis
in original). In prior cases, both this Court and the Indiana Supreme Court have found
double jeopardy violations “where there had been an ‘imposition of two sentences for the
same injurious consequences sustained by the same victim during a single confrontation
violated both Federal and State double jeopardy prohibitions.’” Kocielko v. State, 938
N.E.2d 243, 251 (Ind. Ct. App. 2010) (quoting Bowling v. State, 560 N.E.2d 658, 659 (Ind.
1990)), trans. denied.
Here, Battle was convicted of three counts of forgery, each naming a different
document, but all sharing the common intent to defraud the IDOI in order to obtain a single
benefit—a job. The three offenses thus share a single victim—the Indiana Department of
Insurance—and a single fraudulent intent. The offenses occurred at the same time, in a
single transaction, when Battle submitted the three falsified motions to dismiss in order to
deceive the IDOI. That is, submission of the three documents for a single purpose at a single
time amounted to one act of forgery, and thus it is a violation of double jeopardy principles
for Battle to be convicted of three separate offenses of forgery.
We therefore remand with instructions that the trial court vacate two of the three
counts of forgery. We affirm the trial court’s judgment in all other respects.
Affirmed in part, reversed in part, and remanded.
NAJAM, J., and BARNES, J., concur.
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