Miller v. State

• Decision Date: 31 March 1998
• Docket Number: No. 49A02-9706-CR-387,49A02-9706-CR-387
• Citation: 693 N.E.2d 602
• Parties: Phillip MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 602

693 N.E.2d 602

Phillip MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9706-CR-387.

Court of Appeals of Indiana.

March 31, 1998.

Kenneth T. Roberts, Roberts & Bishop, Indianapolis, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

STATON, Judge.

Following a jury trial, Phillip D. Miller appeals his convictions for Forgery, ¹ a class C felony, and Theft, ² a class D felony. Miller raises three issues on appeal, which we consolidate and restate as two. We also raise one issue sua sponte.

I. Whether sufficient evidence was presented to sustain Miller's convictions for Forgery and Theft.

II. Whether the admission of a handwriting sample violated Miller's Sixth Amendment right to the assistance of counsel.

III. Whether Miller's six-year sentence for Theft exceeds the statutory maximum for a class D felony.

We affirm in part, reverse in part, and remand.

The facts most favorable to the verdict reveal that on September 16, 1995, Miller opened a checking account under the name Ralph Thompson, Jr. Miller opened the account using a social security number, a birthdate, and an address which were not his. The initial deposit into the account was $49, but this amount was depleted within ten days and no further deposits were made. Approximately two weeks after the account was opened, Miller, using the name Ralph Thompson, Jr., entered into a contract with Century Car Phones for telephone service for three cellular phones. Miller issued a $900 check, in the name of Ralph Thompson, to Century, and Century gave Miller three phones. The $900 was to serve as a deposit for the phones. Miller testified that at the time he wrote the check, he knew there was no money in the account. Later, Century was informed that the account had insufficient funds to cover the check. Century disconnected the service to Miller's phones, and when Miller called to inquire about this, he was told to bring the phones in for service. Miller did so and was arrested. Century recovered only one of the three phones.

I.

Sufficiency of the Evidence

Miller contends that insufficient evidence was presented to convict him of either Forgery or Theft. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995), reh. denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if evidence of probative value exists from which a jury could find the defendant guilty beyond a reasonable doubt. Id.

In order to convict Miller of Forgery, the State was required to prove beyond a reasonable doubt that Miller (1) made or uttered a written instrument, (2) with intent to defraud, and (3) in such a manner that it purported to have been made by another person. IC 35-43-5-2. Miller contends that the State failed to meet its burden of proof with respect to any of these elements. We disagree.

First, the evidence reveals that Miller both made and uttered a written instrument. He made the written instrument when he wrote the check, signing a fictitious name to it. Miller uttered the written instrument when he gave Century the check as a deposit for three cellular phones. "Uttering is the offering of a forged instrument, knowing it to be such, with a representation that it is genuine, and with an intent to defraud." Reid v. State, 156 Ind.App. 692, 298 N.E.2d 480, 483 (1973) (quoting 37 C.J.S. Forgery § 37).

Too, the jury could have reasonably inferred that Miller intended to defraud Century. Intent to defraud may be proven by circumstantial evidence which will often include the general conduct of the defendant when presenting the instrument for acceptance. Wendling v. State, 465 N.E.2d 169, 170 (Ind.1984). Miller's use of an assumed name when passing the check and the lack of funds in "Ralph Thompson, Jr.'s" checking account are both facts which support the jury's inference that Miller intended to defraud Century. See Colorado v. Gray, 710 P.2d 1149, 1152 (Colo.Ct.App.1985) (intent to defraud evidenced by use of fictitious name to open a bank account); Colorado v. Brown, 193 Colo. 120, 562 P.2d 754, 755 (1977) (intent to defraud evidenced by use of fictitious name on gift certificates); American Express Co. v. People's Sav. Bank, 192 Iowa 366, 181 N.W. 701, 704 (1921) (lack of funds to meet personal checks is evidence of a general intent to defraud).

Finally, the check Miller issued purported to have been made by a person other than himself. Miller argues that because he always held himself out as Ralph Thompson, Jr. in his dealings with Century he was not purporting that the check was made by anyone other than himself. The Indiana Supreme Court rejected such a reading of the forgery statute in West v. State, 250 Ind. 378, 235 N.E.2d 53 (1968), reh. denied. The defendant in West obtained a rental car by using a false name. The court held that the execution of a rental contract using the false name constituted a forgery. Id. at 55. Here, the evidence shows that Miller, while using a false name, wrote and submitted a check to Century in an amount which the checking account did not contain. We hold that the State presented sufficient evidence for a jury to conclude beyond a reasonable doubt that Miller committed the crime of Forgery.

Miller also argues that the evidence is insufficient to sustain his conviction for Theft. In order to convict Miller of Theft, the State was required to prove beyond a reasonable doubt that Miller (1) knowingly or intentionally, (2) exerted unauthorized control over Century's property, and (3) with the intent to deprive any other person of any part of its value or use. IC...