Stephen Wilbert v. State of Indiana (mem. dec.)

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 Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015 Page 1 of 22

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

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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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015 Page 21 of 22 [40] The judgment of the trial court is affirmed.

Najam, J., and Mathias, J., concur.

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