Trainor v. State

• Decision Date: 01 September 2011
• Docket Number: No. 71A03–1010–CR–561.,71A03–1010–CR–561.
• Citation: 950 N.E.2d 352
• Parties: Patrick J. TRAINOR, Appellant,v.STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

950 N.E.2d 352

Patrick J. TRAINOR, Appellant,

v.STATE of Indiana, Appellee.

No. 71A03–1010–CR–561.

Court of Appeals of Indiana.

June 9, 2011.Transfer Denied Sept. 1, 2011.

Jeffrey L. Sanford, South Bend, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Patrick J. Trainor (“Trainor”) was convicted in St. Joseph Superior Court of five counts of Class D felony counterfeiting and received an aggregate sentence of seven and one-half years, with the entirety of the sentence suspended subject to five years of probation. Trainor appeals and raises two issues, which we restate as:

I. Whether the State presented insufficient evidence to support Trainor's convictions; and

II. Whether Trainor's sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

Facts and Procedural History

On August 26, 2008, Indiana State Police Trooper Brad Kaizer (“Trooper Kaizer”) pulled Trainor over and ticketed him for making an illegal U-turn. While Trooper Kaizer attempted to explain the citation, Trainor repeatedly asked Trooper Kaizer where he lived, but Trooper Kaizer refused to answer. Later that afternoon, Trooper Kaizer received a phone call at his home from an unfamiliar number, and the male caller asked if he had reached Trooper Kaizer's residence. The caller also read off Trooper Kaizer's address and asked for confirmation that Trooper Kaizer lived there. Trooper Kaizer recognized the caller's voice as Trainor's and refused to answer his questions.

A few days later, Trooper Kaizer placed a phone call from the police post to the number from which the call to his home had been made. A man answered the phone, and Trooper Kaizer asked to speak to Trainor. The man responded that he was Trainor, and when Trooper Kaizer identified himself and asked why Trainor had called him at home, Trainor hung up.

A few weeks later, Trooper Kaizer began receiving various collectible items in the mail that neither he nor any member of his household had ordered. Trooper Kaizer contacted the company that had sent many of the items and informed the company's representative that he had not placed the orders. The company cancelled all outstanding billings and unshipped orders and provided Trooper Kaizer with several of the original order forms it had received for items that had been ordered in his name.

Trooper Kaizer turned the order forms over to Indiana State Police Detective Donald Curl (“Detective Curl”). Detective Curl undertook an investigation of Trainor after learning that Trooper Kaizer suspected that Trainor may have placed the orders. During the course of the investigation, Detective Curl obtained handwriting exemplars from Trainor for comparison to the order forms. A forensic document examiner with the Indiana State Police Laboratory conducted an analysis of the order forms and Trainor's handwriting exemplars and concluded that Trainor had filled out the forms.

As a result, on June 9, 2009, the State charged Trainor with five counts of Class D felony counterfeiting. A bench trial was held on August 13, 2010, and the court took the matter under advisement. On August 18, 2010, the trial court found Trainor guilty as charged. On October 4, 2010, the trial court sentenced Trainor to eighteen months on each count to run consecutively, for an aggregate sentence of seven and one-half years, with the entirety of the sentence suspended subject to five years of probation. Trainor now appeals.

I. Sufficiency of the Evidence

Trainor first claims that the State presented insufficient evidence to support his convictions. In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind.Ct.App.2009). Instead, we consider only the evidence supporting the conviction and the reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt, then the judgment will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind.Ct.App.2008).

To establish that Trainor committed Class D felony counterfeiting, the State was required to prove that Trainor knowingly or intentionally “ma[de] or utter [ed] a written instrument in such a manner that it purports to have been made: (A) by another person; (B) at another time; (C) with different provisions; or (D) by authority of one who did not give authority [.]” Ind.Code § 35–43–5–2 (2004). “Written instrument” is defined as “a paper, a document, or other instrument containing written matter and includes money, coins, tokens, stamps, seals, credit cards, badges, trademarks, medals, retail sales receipts, labels or markings (including a universal product code (UPC) or another product identification code), or other objects or symbols of value, right, privilege, or identification.” Ind.Code § 35–43–5–1(t) (2004).

Trainor argues that the evidence was insufficient to support his convictions because the order forms he filled out in Trooper Kaizer's name were not “written instruments” within the meaning of the counterfeiting statute “because they have no value, they create no privilege, and they are not objects of identification.” Appellant's Br. at 10. But the statutory definition of written instrument is not limited to “objects or symbols of value, right, privilege, or identification.” See I.C. § 35–43–5–1(t). Rather, a written instrument is defined as “a paper, a document, or other instrument containing written matter and includes ” a list of specific items and “other objects or symbols of value, right, privilege, or identification.” Id. (emphasis added). The order forms undoubtedly constitute papers, documents, or other instruments containing written matter, and thus fall within the statutory definition of written instrument.¹

Moreover, we conclude that the order forms were objects or symbols of value because they caused Trooper Kaizer to receive items of value and created corresponding debt obligations in his name. Trainor argues that the order forms were not objects of value because they “do not automatically entitle one to an item depicted on the order form[.]” Appellant's Br. at 9. In support of this argument, he points out that the language on three of the order forms indicates that items will be shipped after partial payment is received. Appellant's App. pp. 77–81. Additionally, four of the order forms provide that orders are subject to acceptance, and the remaining form provides that all orders “are subject to product availability and credit approval.” Id. But the possibility that an order may not be accepted, an item may not be available, or that a company may decline to extend credit to a prospective purchaser does not mean that such a purchaser is not obligated to pay for the item he or she has ordered in the absence of such circumstances. Similarly, the fact that an item may not be shipped until payment is received does not mean that a...