White v. State
| Decision Date | 26 December 2012 |
| Docket Number | No. 49A04-1203-PC-102,49A04-1203-PC-102 |
| Parties | CHRISTOPHER WHITE, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D), this 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:
KATHLEEN M. SWEENEY
GREGORY F. ZOELLER
Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE COURT
The Honorable Robert R. Altice, Judge
Cause No. 49G02-0806-PC-147054
Cause No. 49G02-0806-FC-147054
MEMORANDUM DECISION - NOT FOR PUBLICATIONFRIEDLANDER, Judge Christopher White utilized the Davis/Hatton1 procedure to bring this consolidated direct and post-conviction appeal challenging his conviction for Fraud on a Financial Institution2 as a class C felony and the denial of his petition for post-conviction relief in which he claimed that he received ineffective assistance of trial counsel. White raises the following issues in this appeal:
We affirm.
In January 2008, White was a real estate developer who operated a number of business entities, including Premier Properties USA, Inc. (Premier), of which he was general partner and president. Premier was a privately held property management and development company with approximately 100 employees. Christi Minars was Premier's business comptroller and in that capacity managed the books and records for Premier's various corporate entities. Part of Minars's duties involved providing White with a daily spread sheet detailing bank account balances. Minars frequently was in contact with White throughout the business day by telephone and by email. Although White's business interests were numerous, he required that all checks issued by his business be approved by him personally.
White had both personal and business accounts with National Bank of Indianapolis (NBI), a federally insured, federally chartered bank based in Indianapolis. White, who had maintained accounts with NBI for twelve years, was considered to be a valued customer of NBI. Of the approximately ten personal and business accounts White maintained with NBI, one was Reffco II, LP, and another was Premier's payroll account (PPUSA). Tricia Rake and Loaren Muehl, NBI employees, handled White's personal and business accounts. Rake was vice-president of private banking and specialized in marketing and bringing in new clients, particularly those described as high-end clients. Muehl, who was Rake's assistant, handled day-to-day customer relations. Rake's supervisor was Joyce Morris, a bank vice-president and manager of private banking. Rank and Muehl were White's primary contacts at NBI and the contact with White or his employees was daily.
Late in 2007, White opened an account at J.P. Morgan Chase Bank (Chase Bank), and the account was held in the name of HPT, LLC and had a balance of $1,000. White opened the account for the purpose of acquiring property in Las Vegas. White was the sole owner and signator of HTP, LLC.
White used an outside company, ADP, to process payroll checks for his businesses. On a biweekly basis, the human resources department contacted Minars about the amount of money needed to cover payroll, and Minars would inform White of the amount. White would then authorize a transfer into the payroll account. ADP then processed the transaction with NBI through a wire transfer from the PPUSA account to cover payroll.
At approximately 9:30 a.m. on January 30, 2008, Muehl sent Minars an email in which she stated that the Reffco account was overdrawn in the amount of $60,961.70. Muehl requested coverage for the overdraft by 10:00 a.m. that day, or the bank would have to return the check that had caused the overdraft. At 9:34 a.m., Minars sent Muehl an email directing her to transfer $65,000 from one of Premier's other accounts into the Reffco account. A wire transfer was used because it allowed for an immediate transfer of funds, instead of by check, which takes a couple of days to clear.
At approximately 11:30 a.m., Muehl sent a second email to Minar, Rake, and White with the subject line reading "PPUSA." Muehl indicated in that email that the amount needed for payroll according to ADP was $237,476.23, and that the money needed to be in the PPUSA account by 3:30 p.m. in order to send the wire out. The email also indicated that the PPUSA account was overdrawn by $182,602.20.
At 11:51 a.m., Minars forwarded to White a cash summary, which included the bank account balances and the company's total cash position. She informed White that the bank account balances were insufficient to satisfy the payroll, and told White that the payroll cash need was $425,000.00 by 3:30 p.m. The cash summary for White's businesses showed a total bank balance on his accounts of $132,323.09.
White sent an e-mail response to Minars at 1:18 p.m. with a subject line of "FW: PPUSA" stating Transcript at 86. Minars was concerned and replied at 1:19 p.m. via e-mail "$425,000—what is going on????" Id at 87. White replied, again by e-mail, at 1:19 p.m. stating, "I guess make it 500Kand let's do it now." Id. at 87. At the time of the email exchange, both White and Minars knew that the Chase Bank account had a $1,000.00 balance.
Minars, operating under White's explicit instruction, prepared a check in the amount of $500,000.00 from the HTP account held at Chase Bank for deposit in the PPUSA account at NBI. The check was made payable to Premier Properties USA, Inc. and bore White's electronic signature. The check was deposited into the Reffco account and $425,000.00 was transferred to the PPUSA account that day.
Muehl approached Morris with a request from payroll that funds be wired to meet payroll, or to "drawn down" on White's account. Morris approved the payroll release from PPUSA to ADP after learning from Muehl that a deposit was going to be made. When she authorized the release of the funds to cover payroll, Morris believed, based on her discussion with Muehl, that a wire would be coming in to make the funds current. Muehl sent out the wire transfer to ADP. Several wire transfers went out from PPUSA to ADP in the amounts of $237,476.23, $535.35, $54,346.14, and $128,015.92.
On February 1, 2008 at 9:36 a.m., Minars notified White by email that the check from Chase Bank had been returned. At 11:23 a.m. that same day, White sent an email to Rake, in which he informed her that Transcript at 98. The email concluded by stating that there were "some deposits/rents coming in today" and "will report back when Ihave met with the party and found out the reason for the misinformation." State's Exhibit 4. Rake replied to White's email asking for direction as to which account the check should be deposited in when it arrived and commenting that "[i]f that is the case based on that check size it could cause questions as it relates to kiting." Id.
Rake copied Minars on the email, and when addressing her directly, stated "[i]t sounds like [White] is out of pocket" and asking Minars if she could answer Rake's questions. Id. Two hours later Minars replied to Rake's email and stated that the check was deposited the previous Tuesday or Wednesday into the Reffco account. At the time of this email exchange, Minars did not have any information about incoming wires or about White leaving on a plane that day.
On February 4, Morris met with George Keely, the head of NBI's loan administration department, and Keely's supervisor. They decided to allow Rake to try to collect the amount of the returned check from White through February 11. On the morning of February 4, Minars sent White a cash flow summary stating that about two checks would be returned if the overdrafts were not covered by his business by 10:00 a.m. and noting that "[t]he other problem is the $500,000." State's Exhibit 5. At 9:40 a.m., Rake sent White an email stating that the funds needed to be covered that day. White responded to Rake's email over eight hours later stating that he was working on covering the funds "tomorrow," that funding "on the big one is eminent [sic], could be tonight, could be tomorrow or the next day, etc." and that "there is a patriot act issue that is holding up the funds" which could be lifted "at any moment." Id.
Rake sent another email to White on the morning of February 5, again reminding him that he needed to cover the returned check. She also inquired if White had any additional information about his funding. White replied to Rake's email advising her of additional returned checks and stated, "I will be depositing 500K sometime today." Id. On February 7, Rake sent White an email in which she asked, "Did you get the $500,000?" Id. White replied by email stating, "Re the 500,000, I am making the decision to do that deal today." Id.
On February 8, Rake and White had a forty-five minute meeting, during which time White spoke to Rake about funds he anticipated receiving from a transaction in Las Vegas that had allegedly occurred in January of that year. Rake's objective in that meeting was to obtain funds to cover the bad check, but White did not provide any funds to Rake. The next day, Minars sent White an email "expressing [her] concern about what was happening and trying to get some reassurance about what was going on in general." Transcript at 104. White assured...
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