MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Mar 02 2015, 10:50 am
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
Bernice A. N. Corley Gregory F. Zoeller
Appellate Panel Attorney — Marion Attorney General of Indiana
County Public Defender Agency
Indianapolis, Indiana Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stephen Wilbert, March 2, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1408-CR-533
v. Appeal from the Marion Superior
Court
The Honorable Grant W. Hawkins,
State of Indiana, Judge
Appellee-Plaintiff The Honorable Christina Klineman,
Commissioner
Case No. 49G05-1312-FC-78965
Bradford, Judge.
Case Summary
[1] On the evening of December 11, 2013, Appellant-Defendant Stephen Wilbert
was arrested after he and a group of three others used $1300.00 in counterfeit
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United States currency to pay for purchases from an Indianapolis-area Target
store. Wilbert was subsequently charged with and found guilty of Class C
felony forgery and Class D felony theft. Wilbert challenges the sufficiency of
the evidence to sustain his convictions on appeal. He also contends that his
convictions violate the constitutional prohibitions against double jeopardy.
Concluding that the evidence is sufficient to sustain Wilbert’s convictions and
that his convictions for Class C felony forgery and Class D felony theft do not
violate constitutional prohibitions against double jeopardy, we affirm.
Facts and Procedural History
[2] At approximately 7:00 p.m. on December 11, 2013, Wilbert went to an
Indianapolis-area Target store with D’Andre Driver, Antwain Batemon, and
Ryan Mahone. Driver and Batemon first entered the store with Wilbert and
Mahone entering a few minutes later. Upon entering the store, Driver and
Batemon went to the electronics section. Driver and Batemon quickly selected
high-dollar items such as “Beats by Dre” headphones, a television, an Xbox
360, and expensive Lego merchandise. Tr. p. 29.
[3] On December 11, 2013, David Casiano was employed by Target as a senior
assets-protection specialist. Casiano had worked for Target for approximately
six years, focusing on instances of theft and fraud. During the course of his
employment on that evening, Casiano observed Driver and Batemon on the
store’s surveillance video. Casiano’s attention was drawn to Driver and
Batemon because of how quickly they were selecting high dollar items from the
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“front end cap” of the electronic section, which was unlocked to allow guests
easier access to the merchandise. Tr. p. 29. After approximately ten minutes,
Driver and Batemon proceeded toward the checkout lane. At this time,
Casiano went to the sales floor to observe the transaction from a distance of
approximately twenty to thirty feet away while two uniformed security officers
continued to watch the transaction on the surveillance video.
[4] Driver and Batemon went through a register that was staffed by Jane Carver.
The value of the merchandise selected by Driver and Batemon totaled $932.99.
Batemon handed Driver cash which Driver combined with cash from his
pocket. Driver then presented the money to Carver as payment. Although
Casiano was unable to see the denomination of the currency given to Carver by
Driver, Casiano observed that Carver placed the bills in the “farthest right till,”
where the higher-value bills are stored. Tr. p. 85. After paying for the
merchandise, Driver and Batemon left the store.
[5] Seconds later, Casiano walked over to Carver’s register. Casiano proceeded to
check the bills that Driver and Batemon had given to Carver, including nine
$100.00 bills. Casiano knew “right then and there … that there was a
problem.” Tr. p. 34. Casiano, who had extensive experience identifying
counterfeit currency, had encountered large numbers of counterfeit bills at the
store every month. Casiano noted that some of the $100.00 bills appeared to
have identical serial numbers. He also noted that each of the $100.00 bills had
an unusual chemical smell and an identical mark on Benjamin Franklin’s face
which did not appear on genuine $100.00 bills. Target’s policy was to file a
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report with the Indianapolis Metropolitan Police Department (“IMPD”) if a
transaction involving counterfeit currency totaled over $200.00. Casiano took
all nine $100.00 bills and printed off a receipt of the transaction. He then
notified IMPD. While on the telephone with IMPD, Casiano observed that
Driver and Batemon were still in the store parking lot.
[6] Three minutes after Driver and Batemon left the store, and while Casiano was
on the telephone with IMPD, Wilbert and Mahone, who had also shopped for a
period of approximately ten minutes, approached Carver’s checkout lane with a
cart full of merchandise. The merchandise was similar in nature to the
merchandise selected by Driver and Batemon. After Carver scanned the items,
but before either man tendered payment, Mahone left the store. Wilbert
followed Mahone outside without paying, leaving the cart and merchandise at
the register. Wilbert went to the vehicle where Driver, Batemon, and Mahone
were waiting, unlocked the vehicle, and took something from Mahone. Wilbert
then re-entered the Target store and went back to Carver’s checkout lane to pay
for his merchandise.
[7] Casiano, who had followed the men outside, re-entered the store and observed
the transaction between Wilbert and Carver from a distance of approximately
thirty feet. Casiano observed Wilbert remove money from his wallet and hand
it to Carver, who again placed the bills in the right-most till. Wilbert then
exited the store with the merchandise. As soon as Wilbert exited the store,
Casiano approached Carver’s register. He removed four new $100.00 bills that
had not been in the register before Wilbert completed his transaction. The
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$100.00 bills bore the same flaws as the nine $100.00 bills Casiano had removed
from the register after Driver and Batemon’s transaction. No other cash
transactions had occurred at Carver’s register between the time Driver and
Batemon completed their transaction and Wilbert completed his transaction.
[8] IMPD Officer Curt Collins, who had responded to Casiano’s report of forgery
and theft, stopped Wilbert before he rejoined Driver, Batemon, and Mahone.
Officer Collins spoke to Casiano, who showed him the thirteen $100.00 bills
that he had retrieved from Carver’s register. Officer Collins detained the four
men and contacted the United States Secret Service (“Secret Service”) to report
the recovery of the counterfeit currency.
[9] Secret Service Special Agent Darren Brock had been investigating incidents
involving these particular flawed, counterfeit $100.00 bills since they started
appearing in Indianapolis in November of 2013. In light of his experience with
these particular counterfeit bills, Special Agent Brock responded to the reported
recovery of counterfeit currency. Special Agent Brock determined that the bills
in question were counterfeit because they all had the identical small flaw on the
portrait of Benjamin Franklin’s face, the paper texture was “a little bit off,” and
there was no color shifting ink present on any of the bills. Tr. p. 142.
[10] Special Agent Brock questioned the four men individually inside the store’s
loss-prevention office. After the interviews were complete, Officer Collins
arrested all four of the men. During a search incident to their arrests, Officer
Collins recovered two additional counterfeit $100.00 bills that were in
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Batemon’s possession, one additional counterfeit $100.00 bill that was in
Driver’s possession, and one additional counterfeit $100.00 bill that was in
Wilbert’s possession. These counterfeit $100.00 bills bore identical flaws to
those used by the men in completing their earlier Target transactions.
[11] On December 16, 2013, Appellee-Plaintiff the State of Indiana (the “State”)
charged Wilbert with Class C felony forgery, Class D felony theft, and Class D
felony counterfeiting. Wilbert subsequently waived his right to a jury trial. The
trial court conducted a bench trial on May 29, 2014.
[12] During trial, Special Agent Brock testified that, as of the date of trial, the Secret
Service had recovered “somewhere in the neighborhood of $300,000[.00]”
worth of counterfeit $100.00 bills bearing the same flaws as the counterfeit
$100.00 bills in question. Tr. p. 149. Special Agent Brock also testified that
“[t]here is a lot of information on [the Secret Service] public website that can
help someone determine what is counterfeit and what is not.” Tr. p. 146.
Special Agent Brock further testified about how individuals can profit from
using counterfeit currency and certain tendencies or patterns individuals using
counterfeit currency commonly exhibit. In addition, the trial court took notice
that the counterfeit $100.00 bills in question had a different texture than
genuine $100.00 bills and lacked a watermark and safety strip.
[13] Following the conclusion of the State’s presentation of evidence, Wilbert
moved for judgment on the evidence. The trial court denied Wilbert’s motion.
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After the conclusion of the presentation of the evidence, the trial court found
Wilbert guilty as charged.
[14] The trial court subsequently conducted a sentencing hearing, during which it
merged Wilbert’s Class D felony counterfeiting conviction into Wilbert’s Class
C felony forgery conviction. With respect to the Class C felony forgery
conviction, the trial court sentenced Wilbert to 1095 days with seven days
executed, 1088 days suspended, and two years on probation. With respect to
the Class D felony theft conviction, the trial court sentenced Wilbert to 365
days, all suspended and two years on probation. The trial court ordered that
the sentences be served concurrent with one another, and granted Wilbert seven
days of credit time. This appeal follows.
Discussion and Decision
I. Sufficiency of the Evidence
[15] Wilbert contends that the evidence is insufficient to sustain his convictions for
Class C felony forgery and Class D felony theft.
A. Standard of Review
[16] 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
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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) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original). Upon review, appellate courts do not reweigh the evidence or assess
the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.
2002).
B. Forgery
[17] In charging Wilbert with Class C felony forgery, the State alleged that Wilbert:
on or about December 11, 2013, did, with intent to defraud, utter to
Jane Carver a written instrument, that is: United States $100.00
treasury bills, in such a manner that said instrument purported to have
been made by the authority of the United States Department of
Treasury [(“Department of Treasury”)], who did not give authority[.]
Appellant’s App. p. 21. The offense of forgery is governed by Indiana Code 35-
43-5-2, which, on the date in question, read as follows: “(b) 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: (1) by another person; (2) at another
time; (3) with different provisions; or (4) by authority of one who did not give
authority; commits forgery, a Class C felony.” Thus, in order to prove that
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Wilbert committed Class C felony forgery, the State had to prove that: on or
about December 11, 2013, Wilbert, acting with the intent to defraud, uttered to
Carver, United States currency, i.e., $100.00 bills, which Wilbert purported to
have been made by the authority of the Department of Treasury, which did not
give such authority.
[18] Wilbert does not dispute that the counterfeit $100.00 bills were not made by or
authorized to be made by the Department of Treasury. Rather, in challenging
the sufficiency of the evidence to sustain his forgery conviction, Wilbert argues
that the State failed to prove that he “uttered” the written instrument in
question, i.e., the counterfeit currency or, alternatively, that he did so with the
intent to defraud. The State, for its part, argues that the evidence is sufficient to
prove that Wilbert uttered the counterfeit currency to Carver and that he did so
with the intent to defraud.
[19] As used in Indiana Code 35-43-5-2(b), the term “utter” is defined as “to issue,
authenticate, transfer, publish, deliver, sell, transmit, present, or use.” The
evidence demonstrates that at approximately 7:00 p.m. on December 11, 2013,
Wilbert arrived at the Target store with Driver, Batemon, and Mahone.
Approximately ten minutes after arriving at the store, Driver and Batemon went
through a checkout lane staffed by Carver and purchased $932.99 worth of
high-dollar merchandise using nine counterfeit $100.00 bills. Immediately after
Driver and Batemon completed their transaction, Casiano removed the
counterfeit bills from Carver’s register. Approximately three minutes after
Driver and Batemon completed their transaction, Wilbert entered Carver’s
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checkout lane and purchased similar high dollar merchandise and a basketball.
Casiano observed Wilbert hand Carver currency.
[20] Although Casiano, who was standing approximately twenty to thirty feet away,
was not able to see the exact denomination of the currency exchanged between
Carver and Wilbert, security video demonstrates that Carver placed the
currency in the farthest-right till, where higher-value bills are stored. Casiano
immediately approached Carver’s register and removed four additional
counterfeit $100.00 bills from the farthest-right till. Casiano testified that these
bills had not been in the till when he removed the counterfeit bills tendered
minutes earlier by Driver, and there had been no other cash transactions in
Carver’s checkout lane in the intervening three minutes between the time that
Driver and Wilbert went through the checkout lane.
[21] Wilbert also argues that the State failed to prove that he “uttered” the
counterfeit currency with the intent to defraud.
Proof of intent to defraud requires a showing the defendant
demonstrated “intent to deceive and thereby work a reliance and
injury.” Wendling v. State, 465 N.E.2d 169, 170 (Ind. 1984) (emphasis
added). Actual injury is not required; potential injury is enough. See
Diallo v. State, 928 N.E.2d 250, 252 (Ind. Ct. App. 2010) (“[T]here
must be a potential benefit to the maker or potential injury to the
defrauded party”) (quoting Jacobs v. State, 640 N.E.2d 61, 65 (Ind. Ct.
App. 1994) (emphasis added)).
Bocanegra v. State, 969 N.E.2d 1026, 1028 (Ind. Ct. App. 2012) (emphases in
original). “Intent to defraud may be proven by circumstantial evidence which
will often include the general conduct of the defendant when presenting the
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instrument for acceptance.” Miller v. State, 693 N.E.2d 602, 604 (Ind. Ct. App.
1998) (citing Wendling, 465 N.E.2d at 170). “Because 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 and the natural consequences therefrom—there is a showing
or inference of the requisite criminal intent.” Diallo, 928 N.E.2d at 253 (quoting
M.Q.M. v. State, 840 N.E.2d 441, 446 (Ind. Ct. App. 2006)). Further, although
knowledge of the falsity of a written instrument is not a separate essential
element of the crime of forgery, such knowledge may be relevant to show intent
to defraud. Benefield v. State, 904 N.E.2d 239, 245 (Ind. Ct. App. 2009) (citing
Wendling, 465 N.E.2d at 170), trans. denied.
[22] Special Agent Brock testified that one way individuals profit from using
counterfeit currency is to purchase something from a store, such as Target, with
the counterfeit currency and then return the item to another store location.
Special Agent Brock further testified that these individuals seem to exhibit
certain tendencies or patterns when shopping with the counterfeit currency.
Specifically, Special Agent Brock explained that:
when you’re going to take something back to a secondary store, it
doesn’t really matter what that item is. There’s not going to be, not
going to spend hours shopping as we normally would to find the best
price or the best deal. People can simply go in and pick up large ticket
items and buy them immediately without having to shop or, or waste
time trying to make a decision because it doesn’t matter what those
items are. You’re just going to take it back and receive currency.
Secondly, we, we’ve found that when there are groups of people that
tend to do this, they tend to use the same register in one of two
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scenarios. One, you have a complicit register clerk and the people that
are using counterfeit will go to that one person that they know or have
a relationship with or know will accept the currency and they’ll
purchase things from that aisle. Or when one person is known,
whether they’re complicit or not, that they will accept the money,
other people will use that aisle as well because they know that person
just looked at the counterfeit and didn’t determine it as counterfeit. So
why take a chance on somebody else determining it’s counterfeit.
Tr. p. 157.
[23] Again, the evidence shows that, on the date in question, Wilbert acted in
accordance with the behavior described by Special Agent Brock. Upon arriving
at the Target store, Driver and Batemon quickly filled their cart with over
$900.00 worth of high-dollar items. Driver and Batemon went through
Carver’s checkout lane and used nine counterfeit $100.00 bills to pay for their
purchases. Similarly, Wilbert and Mahone quickly filled their cart with
approximately $400.00 worth of high-dollar electronics and a basketball.
Approximately three minutes after Driver and Batemon had gone through
Carver’s line and successfully used the counterfeit $100.00 bills, Mahone left the
store and Wilbert went through Carver’s line at the checkout and used four
counterfeit $100.00 bills to pay for his purchases.
[24] The counterfeit bills that were tendered to Carver bore the same flaws as the
counterfeit bills that were recovered from Batemon’s, Driver’s, and Wilbert’s
persons following their arrests. Specifically, the counterfeit bills each had a
defect on the left side of Benjamin Franklin’s which made them “very
distinguishable.” Tr. p. 116. The counterfeit bills also lacked color shifting ink
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and had a chemical smell to them that was “a bit unusual.” Tr. p. 75. In
addition, the paper texture of each of the counterfeit bills was “a little bit off.”
Tr. p. 142. Batemon testified that Wilbert gave him the two counterfeit $100.00
bills that were found in his possession following his arrest the night before the
men went to Target together. Driver testified that he won the counterfeit
$100.00 bills during a “dice” game that he played the night before with Wilbert,
Juan Carlton, and other men. Tr. p. 197.
[25] Special Agent Brock also testified that there is “a lot” of information available
on the Secret Service’s public website that is intended to help someone
determine what is counterfeit and what is not. Tr. p. 146. Considering the
totality of the evidence, including (1) the noticeable differences between the
counterfeit $100.00 bills and genuine $100.00 bills, (2) Special Agent Brock’s
testimony regarding the tendencies of people attempting to shop with
counterfeit currency and the availability of information available to the public
regarding how to identify counterfeit bills, and (3) Wilbert’s actions, we
conclude that the trial court could reasonably infer that Wilbert knew the
$100.00 bills were counterfeit when he tendered the bills to Carver. Again,
Wilbert’s inferred knowledge is relevant to the question of whether Wilbert
acted with the intent to defraud. See Benefield, 904 N.E.2d at 245.
[26] In light of the above-discussed evidence, we conclude that it was reasonable for
the trial court to infer that Wilbert “uttered” the counterfeit bills to Carver. We
also conclude that, in light of the totality of the circumstances, it was reasonable
for the trial court to infer that Wilbert did so with the intent to defraud. As
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such, we conclude that the evidence is sufficient to sustain Wilbert’s forgery
conviction. Wilbert’s claim to the contrary amounts to a request for this court
to reweigh the evidence, which, again, we will not do. See Stewart, 768 N.E.2d
at 435.
C. Theft
[27] In charging Wilbert with Class D felony theft, the State alleged that Wilbert “on
or about December 11, 2013, did knowingly exert unauthorized control over
the property, that is: electronic equipment and/or toys, of Target, with [the]
intent to deprive Target of any part of the value or use of said property[.]”
Appellant’s App. p. 21. The offense of theft is governed by Indiana Code 35-
43-4-2, which, on the date in question, read as follows: “(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, a Class D felony.” Thus, in order to prove that Wilbert
committed Class D felony theft, the State had to prove that: on or about
December 11, 2013, Wilbert knowingly or intentionally exerted unauthorized
control over electronics and/or toys which belonged to Target with the intent to
deprive Target of the value or use of said merchandise.
[28] In challenging the sufficiency of the evidence to sustain his Class D felony theft
conviction, Wilbert argues that because the evidence demonstrates that he paid
for the items in question at the checkout and there is no evidence that he
intended to “utter” counterfeit currency, he could not have possessed the
requisite intent to exert unauthorized control over the merchandise.
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Alternatively, Wilbert argues that Target, by Casiano, consented to his control
over the merchandise because Casiano was suspicious that Wilbert might be
using counterfeit currency to pay for the merchandise in question but
nonetheless allowed Wilbert to complete his transaction. For its part, the State
argues that the evidence demonstrates that Wilbert intended to “utter”
counterfeit currency when purchasing the merchandise. The State also argues
that Target did not consent to Wilbert’s control over the merchandise.
[29] Again, for the reasons discussed above, based on the totality of the
circumstances, it was reasonable for the trial court to infer that Wilbert knew
the $100.00 bills in question were counterfeit when he tendered the counterfeit
bills to Carver. It reasonably follows, therefore, that the trial court could
reasonably infer that Wilbert knew that the counterfeit $100.00 bills could not
be used as genuine payment for merchandise. The facts and reasonable
inferences that flow therefrom are sufficient to sustain the trial court’s
determination that Wilbert knowingly exerted unauthorized control over the
merchandise in question.
[30] In addition, Wilbert claims that Target consented to his taking the merchandise
because Casiano did not act on his suspicions and stop Wilbert from
completing his purchase using the counterfeit currency. In raising this claim,
Wilbert relies on our opinion in Miller v. State, 693 N.E.2d 602 (Ind. Ct. App.
1998). We note, however, that Wilbert’s reliance on Miller appears to be
misplaced. In Miller, the defendant was convicted of forgery and theft after he
entered into a cellular service agreement under a false name, Ralph Thompson,
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Jr., and issued a $900.00 check, which was purported to be drawn on
Thompson’s account, as a deposit. 693 N.E.2d at 604. In addition, before
relinquishing the phones to the defendant, the cellular company ran a credit
check on Thompson’s name. Id. at 604-05. The cellular company, however,
never received the $900.00 because of insufficient funds in the Thompson
checking account, which never held more than $49.00. Id. at 605. Given these
facts, we concluded that the jury could have reasonably inferred that the
defendant’s use of a false name in order to obtain the phones resulted in his
control over them being unauthorized. Id. at 605. We further concluded that
the evidence was sufficient for the jury to conclude beyond a reasonable doubt
that the defendant had committed theft. Id.
[31] Upon review, we agree with the State’s claim that the facts in the instant matter
require the same result. Although Casiano may have been suspicious of
Wilbert before Wilbert completed his transaction, Casiano did not know that
Wilbert had used counterfeit currency as payment for the merchandise at issue
until after Wilbert had completed his transaction. Casiano’s actions
immediately after confirming that Wilbert had in fact tendered counterfeit
currency as payment for his purchases—approaching Wilbert and notifying the
police—indicates that Target did not consent to Wilbert taking control of the
merchandise in question. Further, Casiano specifically testified that Target did
not consent to Wilbert taking the merchandise in question from the store
without first providing genuine payment. As such, we conclude that Target’s
consent, to the extent given, was limited only to a situation where Wilbert paid
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for the merchandise with genuine currency and cannot reasonably be extended
to include payment with counterfeit currency. Accordingly, we further
conclude that the evidence is sufficient to sustain Wilbert’s Class D felony theft
conviction. Wilbert’s claim to the contrary again amounts to a request for this
court to reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at
435.
II. Double Jeopardy
[32] Wilbert also contends that his convictions for both Class C felony forgery and
Class D felony theft violate the constitutional prohibitions against double
jeopardy.
The Indiana Double Jeopardy Clause provides, “No person shall be
put in jeopardy twice for the same offense.” Ind. Const. art. I, § 14.
We analyze alleged violations of this clause pursuant to our Supreme
Court’s opinion in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In
Richardson, our Supreme Court held that “two or more offenses are the
‘same offense’ in violation of Article I, Section 14 of the Indiana
Constitution, 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 essential elements
of another challenged offense.” 717 N.E.2d 32, 49 (Ind. 1999)
(emphasis in original).
Bunch v. State, 937 N.E.2d 839, 845 (Ind. Ct. App. 2010).
A. Statutory Elements
[33] Two or more offenses are the same offense in violation of Article I, Section 14
of the Indiana Constitution if the essential statutory elements of one of the
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challenged offenses also establishes the essential statutory elements of another
challenged offense. See Bunch, 937 N.E.2d at 845 (citing Richardson, 717 N.E.2d
at 49). We have previously concluded that the essential statutory elements of
the crimes of forgery and theft do not create a double jeopardy issue. See
Williams v. State, 892 N.E.2d 666, 669 (Ind. Ct. App. 2008) (citing Benberry v.
State, 742 N.E.2d 532, 537 (Ind. Ct. App. 2001)), trans. denied. Wilbert does not
provide any authority stating otherwise or present an argument as to why the
essential statutory elements of forgery and theft should be found to create a
double jeopardy issue. In light of our prior conclusions in Williams and
Benberry, we conclude that Wilbert’s conviction for each of these crimes does
not violate the statutory elements test set forth in Richardson.
B. Actual Evidence
[34] Under the “actual evidence” test, a defendant must demonstrate a reasonable
possibility that the evidentiary facts used by the fact-finder to establish the
essential elements of one offense may also have been used to establish all of the
essential elements of a second challenged offense. Bunch, 937 N.E.2d at 845
(citing Richardson, 717 N.E.2d at 53). Application of this test requires the court
to identify the essential elements of each of the challenged crimes and to
evaluate the evidence from the fact-finder’s perspective. Id. at 845-46. The
term “reasonable possibility” “turns on a practical assessment of whether the
jury may have latched on to exactly the same facts for both convictions.” Id. at
846.
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The language expressing the actual evidence test explicitly requires
evaluation of whether the evidentiary facts used to establish the
essential elements of one offense may also have been used to establish
the essential elements of a second challenged offense. The test is not
merely whether the evidentiary facts used to establish one of the
essential elements of one offense may also have been used to establish
one of the essential elements of a second challenged offense. In other
words, under the Richardson actual evidence test, the Indiana Double
Jeopardy Clause is not violated when the evidentiary facts establishing
the essential elements of one offense also establish only one or even
several, but not all, of the essential elements of a second offense.
Spivey v. State, 761 N.E.2d 831, 832-33 (Ind. 2002) (emphases in original).
[35] Again, in order to prove that Wilbert committed Class C felony forgery, the
State presented evidence demonstrating that Wilbert, with the intent to defraud,
uttered four counterfeit $100.00 bills to Carver. Specifically, the State presented
evidence demonstrating the following: approximately three minutes after
Driver and Batemon had gone through Carver’s checkout lane and used nine
counterfeit $100.00 bills to purchase certain high-dollar items, Wilbert went
through Carver’s checkout lane and used four counterfeit bills to purchase
similar high-dollar items. All of the men had quickly selected the merchandise
in question without first studying the merchandise and had acted in accordance
with known tendencies of individuals who were attempting to “purchase”
merchandise with counterfeit currency. In addition, the counterfeit $100.00
bills uttered by Wilbert, Driver, and Batemon bore the same flaws as the
counterfeit bills recovered from their persons following their arrests. These
flaws included a “very distinguishable” defect on Benjamin Franklin’s chin, tr.
p. 116, the lack of color shifting ink, a chemical smell that was “a bit unusual,”
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tr. p. 75, and a texture to the paper that was “a little bit off.” Tr. p. 142. We
concluded above that this evidence was sufficient to prove that Wilbert, acting
with the intent to defraud, uttered the counterfeit currency to Carver.
[36] In order to prove that Wilbert committed Class D felony theft, the State
presented evidence demonstrating that Wilbert knowingly exerted unauthorized
control over merchandise belonging to Target with the intent to deprive Target
of the merchandise’s use or value. Specifically, the State presented evidence
that demonstrated that Wilbert knew the counterfeit $100.00 bills could not be
used as genuine payment for the merchandise in question but nevertheless
“paid” for the merchandise with the counterfeit $100.00 bills and removed the
merchandise in question from the Target store. The State also presented
evidence that Target had not consented to Wilbert taking the merchandise in
question from the store without first providing genuine payment.
[37] In addition, we believe that Wilbert’s reliance on our opinion in Williams is
misplaced because the facts and circumstances presented in the instant matter
are easily distinguishable from those presented in Williams. In Williams, the
defendant was charged with and convicted of forgery and attempted theft after
she presented a stolen and fraudulent check to the bank for deposit into her
account. 892 N.E.2d at 667-68. Both the charged forgery and attempted theft
counts alleged culpability and sought punishment for defendant’s attempt to
take $1050.00 from the bank by passing a fraudulent check. Id. at 668. The
State’s exclusive evidence for both charged offenses was the fact that defendant
had the fraudulent check and attempted to deposit it into her account. Id. at
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669. As such, we concluded that there was “more than ‘a reasonable
possibility’ that the evidentiary facts used by the State to establish all of the
essential elements of one offense were also used to establish all of the essential
elements of the other offense[.]” Id.
[38] Here, unlike in Williams, we cannot say that there is “more than a reasonable
possibility” that the same facts were used to prove all of the essential elements
of both of the charged offenses. Specifically, the facts establishing the essential
elements of the forgery charge, i.e., Wilbert’s utterance of the counterfeit
$100.00 bills with the intent to defraud, did not establish all of the essential
elements of his theft charge. An essential element of the theft charge, i.e., the
exertion of unauthorized control over another, was not complete until Wilbert
removed the merchandise in question from the Target store without first
providing valid payment. The State relied on different evidence to prove this
essential element than it did to prove any of the essential elements of forgery.
[39] Upon review, we conclude that the State presented distinct evidence to prove
each of the charged offenses. Furthermore, even to the extent that the State
relied on the same evidence to establish some of the essential elements of the
charged offenses, the State did not rely on the same evidence to establish all of
the essential elements of each of the charged offenses. As such, we conclude
that Wilbert has failed to demonstrate that there is a reasonable possibility that
the trial court latched on to exactly the same facts for each of the challenged
convictions. See Spivey, 761 N.E.2d at 832-33.
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[40] The judgment of the trial court is affirmed.
Najam, J., and Mathias, J., concur.
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