Lohmiller v. State

• Decision Date: 22 April 2008
• Docket Number: No. 08A02-0710-CR-873.,08A02-0710-CR-873.
• Citation: 884 N.E.2d 903
• Parties: Rebecca D. LOHMILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

884 N.E.2d 903

Rebecca D. LOHMILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 08A02-0710-CR-873.

Court of Appeals of Indiana.

April 22, 2008.

Florence Anne Briggs, Briggs Law Office, Flora, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Chief Judge.

Appellant-defendant Rebecca D. Lohmiller appeals her convictions and sentence for six counts of Forgery,¹ a class C felony, and twenty-one counts of Practicing Nursing without a License,² a class B misdemeanor. Specifically, Lohmiller argues that (1) the trial court erred by denying her pretrial motion to sever the charges; (2) the evidence presented was insufficient to sustain her convictions for forgery; (3) the trial court infringed on her right to testify by limiting her testimony regarding her previous involvement with the federal Witness Protection Program; (4) the trial court abused its discretion by not allowing a proffered expert witness to testify; (5) the trial court erred by denying the jury's request for a dictionary during deliberations and its question regarding two jury instructions; (6) her convictions violate the double jeopardy clause of the Indiana Constitution; and (7) the trial court committed fundamental error by ordering her to pay $25,000 in restitution. Finding that the trial court committed fundamental error when it ordered Lohmiller to pay restitution, but finding no other error, we affirm in part, reverse in part, and remand with instructions contained herein.

FACTS

Lohmiller received a license to practice as a medical nurse in Georgia in 1974. She claims that she was placed in the federal Witness Protection Program in 1979 after she identified and testified against a member of a crime family. Because the program would not provide protection to the man she planned to marry, she eventually withdrew from its protection.

Lohmiller moved to Indiana in 1985 but did not acquire an Indiana nursing license. Indiana does not have reciprocity with other states with regards to nursing licensure. Lohmiller began working at the Carroll County Health Department as a part-time nurse in 1999. In 2001, she was promoted to a full-time position as a public health nurse — a job that requires the employee to have graduated from an approved nursing program and possess a valid Indiana nursing license. In the course of her employment and duties, Lohmiller signed her name as "Rebecca Lohmiller RN, MSN" on at least twenty-seven occasions — three tobacco settlement subcontracts, one tobacco settlement grant, one grant request, eleven vaccine order forms, one immunization record, one CHIRP agreement,³ one tuberculosis test record, and one tetanus immunization record. Lohmiller admits that she signed each of these documents and appended the professional suffix "RN, MSN" to her name. Tr. p. 313.

On August 3, 2005, the State charged Lohmiller with six counts of class C felony forgery and twenty-seven counts of class B misdemeanor practicing nursing without a license. On May 7, 2007, the State filed a motion in limine, requesting that the trial court enter a protective order that Lohmiller and her witnesses be restrained from any mention of [Lohmiller's] participating in the witness protection program or other names, dates of birth, or social security numbers that [Lohmiller] may have used without proof that [Lohmiller] actually participated in such program or legally used such identifiers. [Lohmiller's] defense seems to be based on her participating in a witness protection program, however, no documentation has ever been provided to the State to verify her participation in such a program. There are no witnesses or exhibits listed which would prove such participation. Any mention therefore of her claims would serve only to confuse the jury, detract from the true issues of the case, and waste judicial resources.

Appellant's App. p. 113. The trial court granted the State's motion.

A two-day jury trial began on May 14, 2007. At the close of the State's case, Lohmiller moved for a directed verdict on the forgery counts, which the trial court denied. Before Lohmiller testified, she made an offer to prove and the trial court ruled that she could testify that she had been involved in the Witness Protection Program and that, out of fear, she had chosen not to establish a nursing license in Indiana. However, it ruled that the remainder of her proffered testimony — the specific details regarding the reasons for her alleged involvement in the program — was irrelevant.

After retiring to deliberate, the jury sent two questions to the trial court — one asking for a dictionary and one asking the trial court to define the term "material fact" as it was used in two, of the jury instructions. The trial court talked to the parties and ultimately concluded that it would be inappropriate to augment the final instructions and, thus, denied the jury's requests over Lohmiller's objection. Lohmiller moved for a mistrial, which the trial court denied. The jury ultimately found Lohmiller guilty as charged.

On September 13, 2007, Lohmiller filed a motion to vacate her convictions, arguing, that they violate principles of double jeopardy. The trial court denied her motion that same day and, after a hearing, sentenced Lohmiller to four years imprisonment, two years to be served on home detention and two years to be suspended to probation. The trial court also ordered Lohmiller to pay $25,000 in restitution to Carroll County's (the County) general fund as a condition of probation. Lohmiller now appeals.

DISCUSSION AND DECISION

I. Motion to Sever

Lohmiller argues that the trial court abused its discretion by denying her pretrial motion to sever the misdemeanor counts from the felony counts and to hold separate trials. Specifically, she argues that "[t]he sheer volume of the charges led to confusion ... [i]t would have promoted fairness to have the felonies tried separately from the misdemeanor charges." Appellant's Br. p. 27.

Two or more offenses may be joined for trial if they are "of the same or similar character" or if they are "based on the same conduct or on a series of acts connected together or constituted parts of a single scheme or plan." Ind.Code § 35-34-1-9(a). A defendant's motion for severance of crimes must be made before the commencement of trial, except that the motion may be made before or at the close of all the evidence during trial if based upon a ground not previously known. I.C. § 35-34-1-12(a). If a defendant's pretrial motion for severance of offenses is overruled, "the motion may be renewed on the same grounds before or at the close of all the evidence during trial. The right to severance of offenses ... is waived by failure to renew the motion." I.C. § 35-34-1-12(b); see also Brown v. State, 683 N.E.2d 600, 603 (Ind.Ct.App.1997).

As the State notes, there is no evidence in the record that Lohmiller renewed her motion for severance during trial. Thus, pursuant to Indiana Code section 35-34-1-12(b), she has waived this issue for appeal.

II. Sufficiency

Lohmiller argues that the evidence is insufficient to sustain her convictions for forgery. Specifically, she argues that the signor of the documents did not have to be a licensed nurse and there is no evidence of her intent to defraud.⁴

To convict Lohmiller of forgery, the State was required to prove beyond a reasonable doubt that she knowingly or intentionally made or uttered a written instrument in such a manner that it purports to have been made by authority of one who did not give authority. I.C. § 35-43-5-2. When addressing sufficiency of the evidence challenges, we neither reweigh the evidence nor judge the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005). We consider only the probative evidence and reasonable inferences therefrom that support the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). If there is conflicting evidence, we consider that evidence only in the light most favorable to the judgment. Id. The evidence is sufficient if an inference may reasonably be drawn from it to support the judgment. Id. at 147.

When she testified at trial, Lohmiller admitted that she signed each of the documents in question with her name and appended the professional suffix "RN, MSN." Tr. p. 313. She admitted that she has never been licensed to practice nursing in Indiana. Id. at 315. Thus, because she was not licensed to practice nursing by the Indiana State Board of Nursing (the Board), Lohmiller was not authorized to "use the abbreviation of `R.N.'" pursuant to Indiana Code 25-23-1-11.⁵

Lohmiller argues, and the State acknowledges, that she did not sign the documents on behalf of the Board and that there was no requirement for the signor to be a licensed nurse. However, Lohmiller did sign the documents in the course of her employment, which required her to be a licensed nurse. Thus, when Lohmiller appended the professional suffix "R.N." to her name and signed the documents in the course of her employment, she represented herself as possessing authority she did not have — the authority of a registered nurse.

The only remaining issue is whether Lohmiller possessed the requisite intent to defraud when she signed the documents. She directs us to her testimony that she "would have never defrauded anybody under any circumstance." Tr. p. 306. However, the evidence shows that Lohmiller received a job description for the public health nurse position, detailing that the employee must "be a graduate of an accredited school of nursing and be currently licensed in the State of Indiana." Ex. 29; Tr. p. 33-34. Mary Jones, the Vital Records Clerk for the Carroll County Health Department, asked Lohmiller for a copy of her Indiana nursing license "when she got the job ... [and] at random times" throughout her employment. Tr. p. 38....