Brett Michael Horein v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 30 2020, 9:32 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sally Skodinski Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Courtney L. Abshire
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brett Michael Horein, January 30, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1966
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable David C.
Appellee-Plaintiff. Chapleau, Judge
The Honorable Julie Verheye,
Magistrate
Trial Court Cause No.
71D06-1903-CM-1167
Pyle, Judge.
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Statement of the Case
[1] Brett Horein (“Horein”) appeals his conviction, following a bench trial, for
Class A misdemeanor conversion.1 Horein argues that there was insufficient
evidence to support his conviction. Concluding that Horein’s argument is
merely a request to reweigh the evidence, we deny this request and affirm his
conviction.
[2] We affirm.
Issue
Whether sufficient evidence supports Horein’s conviction.
Facts
[3] On February 19, 2019, Horein called his father, Bruce Horein (“Bruce”), and
asked if he could go to Bruce’s house to use his laptop. Bruce agreed. Bruce—
who had had a prior incident with Horein that led to Bruce testifying in a
criminal case against his son in January—arranged for Ronald Baker (“Baker”),
who was a friend of both Horein and Bruce, to be at the house when Horein
arrived. Thereafter, Horein and his friend Lennie (“Lennie”) went to Bruce’s
house. After Horein had used Bruce’s laptop, he walked over to a cabinet
where Bruce kept his cell phones and electronics. In this cabinet, Bruce had a
refurbished iPhone that he had previously purchased online for his wife, and
1
IND. CODE § 35-43-4-3.
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the phone was still in its box. Horein took the box, opened it, took out the cell
phone, and asked Bruce why he had Horein’s cell phone. Bruce told Horein,
“That’s not your phone[.]” (Tr. Vol. 2 At 17). Horein responded, “How do
you know? You have my phone.” (Tr. Vol. 2 at 17). Bruce again told Horein
that the phone was not his and that he had purchased it for his wife. When
Bruce approached Horein to take the phone, Horein “became very angry” and
“came at” Bruce. (Tr. Vol. 2 At 18). Lennie intervened and pushed Horein
away from Bruce. Horein took out his own cell phone that he had brought with
him, threw it at Bruce, and said “this piece of crap is your phone.” (Tr. Vol. 2
at 18). Horein then left Bruce’s house with Bruce’s refurbished iPhone and
never returned it. Thereafter, Bruce contacted the police.
[4] The State charged Horein with Class A misdemeanor conversion. On July 25,
2019, the trial court held a bench trial, during which Bruce and Baker testified
regarding Horein’s actions at Bruce’s house. Baker also testified he had been
with Bruce when he had made the online purchase of the refurbished iPhone
and that he knew Bruce had purchased it for his wife. Additionally, Baker
corroborated Bruce’s testimony that Bruce had told Horein that the refurbished
iPhone did not belong to Horein. The trial court found Horein guilty as
charged, imposed a sentence of thirty (30) days, and ordered him to pay
restitution. Horein now appeals.
Decision
[5] Horein argues that the evidence was insufficient to support his Class A
misdemeanor conversion conviction.
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When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. 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. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks
and citations omitted) (emphasis in original).
[6] The conversion statute, INDIANA CODE § 35-43-4-3(a), provides that “[a] person
who knowingly or intentionally exerts unauthorized control over property of
another person commits criminal conversion, a Class A misdemeanor.” Thus,
to convict Horein for conversion as charged, the State was required to establish
beyond a reasonable doubt that Horein knowingly or intentionally exerted
unauthorized control over Bruce’s refurbished iPhone. “A person engages in
conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” I.C. § 35-41-2-2(b). “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).
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[7] Horein contends that the State failed to prove that he had the required intent
because he “reasonably believed” that the refurbished iPhone was his own.
(Horein’s Br. 7). To support his argument, Horein cites to the statutory defense
of mistake of fact in INDIANA CODE § 35-41-3-7, which provides that “[i]t is a
defense that the person who engaged in the prohibited conduct was reasonably
mistaken about a matter of fact, if the mistake negates the culpability required
for commission of the offense.” A mistake of fact defense requires a defendant
to prove that: (1) the mistake was honest and reasonable; (2) the mistake was
about a matter of fact; and (3) the mistake negates the culpability required to
commit the crime. See Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997); Nolan
v. State, 863 N.E.2d 398, 404 (Ind. Ct. App. 2007), trans denied. A mistake of
fact defense is a question for the finder of fact, and we review the issue by the
same standard as we do with a challenge to the sufficiency of the evidence.
Saunders v. State, 848 N.E.2d 1117, 1121 (Ind. Ct. App. 2006), trans. denied.
[8] Horein “acknowledges that the defense of ‘mistake of fact’ was not specifically
presented at trial,” but he contends that the trial court “should have considered
it” nonetheless. (Horein’s Br. 7). We disagree. Because Horein is raising this
affirmative defense for the first time on appeal, he has waived it. See Lafary v.
Lafary, 476 N.E.2d 155, 159 (Ind. Ct. App. 1985) (providing that affirmative
defenses must be raised at trial and cannot be raised for the first time on
appeal).
[9] Waiver notwithstanding, Horein has failed to show that any mistake of fact was
reasonable. “Reasonableness [of a mistake of fact] is an objective test inquiring
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what a reasonable man situated in similar circumstances would do.” Nolan, 863
N.E.2d at 404. Here, the evidence showed that Bruce had previously purchased
a refurbished iPhone for his wife. The phone was in its box and placed in
Bruce’s cabinet. Horein, who had gone to Bruce’s house with his own cell
phone, went into Bruce’s cabinet and took the refurbished iPhone out of the
box. When Horein stated that the phone was his, Bruce told Horein that it was
not and that he had purchased it for his wife. When Bruce approached Horein
to take the phone, Horein “became very angry” and “came at” Bruce. (Tr. Vol.
2 At 18). Horein took out his own cell phone that he had brought with him,
threw it at Bruce, and said “this piece of crap is your phone.” (Tr. Vol. 2 at 18).
Horein then left Bruce’s house with Bruce’s refurbished iPhone and never
returned it. Baker, who had been with Bruce when he purchased the
refurbished iPhone online and was at Bruce’s house the day that Horein was
there, corroborated Bruce’s testimony. The trial court, as finder of fact,
determined that the State had “met its burden of establishing that the elements
of conversion, that Mr. Brett Horein [had] knowingly or intentionally exerted
unauthorized control over the property of Bruce Horein.” (Tr. Vol. 2 at 37).
Horein’s argument is simply a request to reweigh the evidence and reassess the
trial court’s credibility determination, which we will not do. See Drane, 867
N.E.2d at 146. Accordingly, we affirm Horein’s Class A misdemeanor
conversion conviction.
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[10] Affirmed.
May, J., and Crone, J., concur.
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