Attorney for Appellant Attorneys for Appellee
Thomas J. O'Brien Steve Carter
O'Brien & Dekker Attorney General of Indiana
Lafayette, Indiana
Grant H. Carlton
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 79S02-0501-CR-001
Mirtha McHenry,
Appellant (Defendant below),
v.
State of Indiana,
Appellees (Plaintiff below).
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Appeal from the Tippecanoe Circuit Court, No. 79C01-0011-CF-46
The Honorable Donald L. Daniel, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 79A02-0303-
CR-251
_________________________________
January 6, 2005
Dickson, Justice.
Following a jury trial, the defendant, Mirtha McHenry, a bank teller,
was convicted of forgery, a class C felony, and theft, a class D felony, as
a result of her actions relating to an unauthorized withdrawal of $6,500
from the account of a bank customer. Concluding that the evidence was
insufficient to establish her guilt of either crime, the Court of Appeals
reversed the convictions and remanded with instructions that she be
discharged.[1] We grant transfer and affirm the trial court.[2]
In her appeal from the convictions, the defendant alleges three
grounds for reversal: (1) insufficient evidence; (2) refusal to strike two
jurors for cause; and (3) erroneous admission of surveillance videotape.
1. Sufficiency of Evidence
The defendant contends that neither of her convictions were supported
by sufficient evidence. Upon a challenge to the sufficiency of evidence to
support a conviction, a reviewing court does not reweigh the evidence or
judge the credibility of the witnesses, and respects "the jury's exclusive
province to weigh conflicting evidence."[3] We have often emphasized that
appellate courts must consider only the probative evidence and reasonable
inferences supporting the verdict.[4] Expressed another way, we have
stated that appellate courts must affirm "if the probative evidence and
reasonable inferences drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a reasonable
doubt."[5]
Evidence at her jury trial established that the defendant, a bank
teller, withdrew $6,500 from the account of Charles Landes. The defendant
testified that someone had come to her wanting to make this withdrawal,
that she had filled in the withdrawal slip, and that she had the customer
sign it and gave him the money. Upon receiving his bank statement and
discovering a $6,500 withdrawal from his account, Landes immediately
reported the error to the bank and signed an affidavit of forgery stating
that the signature on the withdrawal slip was not his and that he did not
receive any of the proceeds. The withdrawal slip was time-stamped 4:44
p.m. The bank's videotape showed no one at the defendant's teller window
when the transaction occurred. Bank records also disclosed that the
defendant had accessed and viewed this customer's account records twice
during the two weeks before the withdrawal.
Although reciting that "in reviewing the sufficiency of the evidence,
we will not reweigh the evidence or judge the credibility of witnesses,"[6]
the Court of Appeals reversed the convictions, speculating that the
withdrawal slip "may have been received earlier and only stamped at 4:44
p.m." and that the defendant's prior inquiries into the customer's account
balance "may have been precipitated by a phone call request."[7]
In reversing the jury's verdict, the Court of Appeals failed to
restrict its consideration to only the evidence and reasonable inferences
favorable to the trial court's verdict, but instead reweighed the evidence,
improperly substituting its own judgment for that of the jury. While the
jury could have drawn the same inferences as the Court of Appeals, they did
not. They returned a unanimous verdict of guilt on each count.
The defendant urges that the State failed to present evidence that she
intended to defraud the customer or the bank or that she took the money.
The State responds (and the defendant concedes) that intent to defraud may
be proven by circumstantial evidence,[8] and the State argues that the
defendant acknowledged accessing the customer's account and performing the
transaction that removed $6,500 from the account—money that the customer
did not receive. And the videotape enabled the jury to infer that there
was no customer at the defendant's teller window when the withdrawal was
made.
Finding that the probative evidence and reasonable inferences drawn
from the evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt, we conclude that the evidence
was sufficient to support the judgment.
2. Failure to Exclude Jurors for Cause
The defendant contends that the trial court committed reversible
error in allowing two jurors who were depositors in the bank to serve as
jurors. During jury selection, when two jurors stated that they had
accounts at the bank, the defendant challenged them for cause, alleging
they had a personal interest. The trial court denied her challenges, and
the defendant thereafter exhausted her peremptory challenges. She argues
that these two jurors should have been excused because they each had a
personal interest in the victim of her alleged victim crimes. When the
defendant challenged these jurors for cause, the trial court questioned
each about their status as account holders and the possible impact of the
bank's loss upon them. Each juror assured the court that this would
neither influence them as jurors nor affect their personal business with
the bank.
The defendant acknowledges that whether to excuse a juror for cause
rests within the sound discretion of the trial court.[9] She urges,
however, that the financial interests of these jurors as bank depositors
raised a presumption of implied bias, citing Woolston v. State.[10]
Woolston involved a juror who had a close relationship to the State
Police due to his wife's employment. The juror was familiar with three of
the officers who were to testify for the State and knew that his wife had
worked on some of the evidence in the case. Noting that a challenge for
cause had been held to exist in cases where a juror's spouse had been hired
for future employment by the prosecutor and in another where the juror's
wife was a second cousin to a member of the prosecutor's staff, Woolston
found that, based on the juror's relationship to the State, it was error
for the trial court to deny the challenge for cause.[11]
In the present case, the jurors were challenged not for their
relationship with the State but for their status as depositors in the bank
where the alleged crimes occurred. The trial court considered the
challenge, questioned the jurors, and then denied the challenge. We
decline to find any abuse of discretion in this ruling.
3. Surveillance Videotape
The defendant also contends that the trial court committed reversible
error in admitting the bank's surveillance video. The video shows that no
person was at the defendant's teller window at the time she entered the
questioned transaction. The defendant's objection at trial was that the
videotape was not a business record and that there was an inadequate
foundation, the particulars of which were not specified. On appeal, the
defendant does not present argument as to the business record issue but
rather argues generally that because the state did not present information
to support the reliability of the surveillance tape other than the
affidavit of a records custodian, it failed to lay a proper foundation for
the admission of the video.
The parties agree that under a "silent witness" theory, videotapes may
be admitted as substantive evidence, but "there must be a strong showing of
authenticity and competency" and that when automatic cameras are involved,
"there should be evidence as to how and when the camera was loaded, how
frequently the camera was activated, when the photographs were taken, and
the processing and changing of custody of the film after its removal from
the camera."[12]
The State argues that witness testimony established the videotape's
authenticity. The bank manager removed the videotape, and a police
detective checked it to assure that it was the tape covering the date in
question. The detective then watched the tape to match the transactions
and customers' account numbers with the representations on the videotape.
In addition, the bank's custodian of records verified by affidavit that the
tape was a regularly conducted activity of the bank and that she had
examined the records to verify its trustworthiness.
Rulings on the admission of evidence are subject to appellate review
for abuse of discretion.[13] We are not persuaded that the trial court
abused its discretion in admitting the videotape.
Conclusion
We grant transfer and affirm the judgment of the trial court.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] McHenry v. State, 797 N.E.2d 852, 855 (Ind. Ct. App. 2003).
[2] As an experiment, this opinion departs from the author's usual
style of citation and footnote use. Cf. Indiana Appellate Rule 22.
Generally adhering to the footnote recommendations of Bryan Garner, The
Winning Brief, 139-47 (2d ed. 2004), all citations unessential to the text
are placed in footnotes, and substantive matter that otherwise might appear
in footnotes is included in the text. This revised format does not meet
with universal approval. See Richard A. Posner, Against Footnotes, 38
Court. Rev. 24 (Summer 2001). The public, the bench, and the bar are
invited to comment to the Supreme Court Administrator, 315 State House,
Indianapolis, IN 46204.
[3] Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind. 2001).
[4] Bald v. State, 766 N.E.2d 1170, 1173 (Ind. 2002); Raines v. State,
514 N.E.2d 298, 299 (Ind. 1987); Loyd v. State, 272 Ind. 404, 407, 398
N.E.2d 1260, 1264 (Ind. 1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231,
66 L.Ed.2d 105.
[5] Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000).
[6] McHenry, 797 N.E.2d at 854.
[7] Id. at 855 (emphasis added).
[8] Wendling v. State, 465 N.E.2d 169 (Ind. 1984).
[9] Wisehart v. State, 693 N.E.2d 23, 55 (Ind. 1998).
[10] 453 N.E.2d 965, 968 (Ind. 1983).
[11] Id.
[12] Brief of Appellant at 15; Brief of Appellee at 7. See Edward v.
State, 762 N.E.2d 128, 136 (Ind. Ct. App. 2002).
[13] McManus v. State, 814 N.E.2d 253, 264 (Ind. 2004); Janes v.
State, 780 N.E.2d 373, 376 (Ind. 2002).