dissenting.
I respectfully dissent from the majority opinion, which affirms the conviction for forgery, a Class C felony. Ind.Code § 35-43-5-2(b) (2006).
Proof of intent to defraud requires a showing that 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); see also Diallo v. State, 928 N.E.2d 250, 252 (Ind.Ct.App.2010). With regard to proof of the basic requirement of an intent to deceive, the majority opinion relies heavily on Lohmiller v. State, 884 N.E.2d 903 (Ind.Ct.App.2008), in which a panel of this Court concluded that the evidence was sufficient to sustain a conviction for forgery. Lohmiller is not controlling here, but it serves to illustrate an important point regarding Indiana Code section 35-43-5-2.
It is clear that the statute in place at the time of the alleged criminal act or acts is the statute which controls the prosecution of an offense and the punishment therefor. See Collins v. State, 911 N.E.2d 700, 708 (Ind.Ct.App.2009) (“The law [that] is in effect at the time that the crime was committed is controlling.”), trans. denied. Lohmiller involved acts by the defendant which occurred on or before June 29, 2004. On July 1, 2005, an amendment to Indiana Code section 35-43-5-2 took effect, creating and defining the crime of counterfeiting, a Class D felony. 2005 Ind. Acts 1448. Thus, at the time of Lohmiller’s offenses, the provision of Indiana Code section 35-43-5-2 creating and defining the crime of counterfeiting was not yet in effect, having been enacted and effective as of July 1, 2005. Lohmiller could not have been validly charged with or convicted of counterfeiting. That is not the case with the matter before us.
Here, Bocanegra convincingly argues that the 2005 statutory amendment evidences a clear intent to draw a line of demarcation between what was then the only offense, i.e., forgery as a Class C felony, and the lesser offense of counterfeiting. With the passage of the 2005 amendment, we then had in place two different offenses, a greater and a lesser crime. In the lesser offense of counterfeiting, there need not be an intent to defraud. Ind.Code § 35-43-5-2(a). I conclude that Bocanegra’s argument is correct as to the current state of the law.
Lohmiller addresses a finding of intent to defraud under the forgery provision of the statute. Until the statutory amendment in 2005, there was no crime of which to convict a defendant who intentionally deceived the “victim” and benefitted from such deception but caused no harm.
Here, Bocanegra certainly received a benefit from his deception in that he obtained employment for which he was paid. But even though Keystone relied upon the information provided by Bocanegra and hired him, I do not discern any injury sustained by Keystone. Keystone received the labor from Bocanegra for which it bargained.
Thus, even if we hold the forgery provision of the statute in play without regard to the applicable existence of the lesser offense of counterfeiting and apply the Lohmiller rationale to this evidence, a fatal omission is present.7 To obtain a for*1032gery conviction the State must prove harm to the entity deceived. Here, that entity is the employer, Keystone. It is not relevant to prove that a third party, such as an unsuccessful applicant for the position filled by Bocanegra, was harmed. Under the facts of our case, it is clear that there was no intent to deceive any entity other than Keystone.
The evidence demonstrates that Keystone relied upon Bocanegra’s deception in hiring him. The fact remains, however, that Bocanegra performed the work for which he was hired and paid. I discern no legally cognizable harm to Keystone from that. One might deduce that by hiring Bocanegra, Keystone was incurring a prospective or possible inquiry and sanctions for hiring an illegal alien. See Jacobs v. State, 640 N.E.2d 61, 65 (Ind.Ct.App.1994) (stating that potential injury is sufficient to prove intent to defraud), trans. denied,; Lewis v. State, 169 Ind.App. 172, 346 N.E.2d 754, 759 (1976) (holding that proof of actual harm from the fraudulent act is “immaterial”). Nevertheless, such speculative “harm” does not meet the requirement for proof of a legal harm or injury.
The word “potential” is defined as “capable of coming into being; possible.” Black’s Law Dictionary 1206 (8th ed. 1999). This Court has said that a determination of factual issues “depend[s] upon probability NOT possibility or certainty.” Beaman v. Hedrick, 146 Ind.App. 404, 255 N.E.2d 828, 832 (1970) (emphasis in original). Thus, a mere “possibility” is not an adequate test for an act that allows conviction for a crime calling for a significant term of imprisonment. Accordingly, I would decline to follow those cases which suggest that a potential harm is of itself sufficient to support a forgery conviction as it is defined under the Indiana statute.
I conclude that there is insufficient proof of an injury to Keystone because it received the benefit of Bocanegra’s work regardless of his legal status, without any negative consequences set forth in the record. In my opinion, Bocanegra’s conviction is not sustained by the evidence.
For the reasons stated above, I would reverse Bocanegra’s conviction for forgery.8
. The State did not charge Bocanegra with counterfeiting, and the jury was not instructed as to that offense.
. However, I do not agree with the majority, as stated in footnote 2, that under the circumstances the identity deception conviction must be vacated. I would leave in place the identity deception conviction. I would do so in light of my view that the forgery conviction should be reversed.