Williams v. State

• Decision Date: 27 August 2008
• Docket Number: No. 49A02-0801-CR-44.,49A02-0801-CR-44.
• Citation: 892 N.E.2d 666
• Parties: Gina WILLIAMS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

892 N.E.2d 666

Gina WILLIAMS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0801-CR-44.

Court of Appeals of Indiana.

August 27, 2008.

Amy Karozos, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Gina Williams appeals her convictions for Forgery, a Class C felony, and Attempted Theft, as a Class D felony, following a bench trial. Williams raises a single issue for our review, which we restate as the following three issues:

1. Whether Williams' conviction for attempted theft is barred by Indiana's prohibitions against double jeopardy.

2. Whether the trial court's denial of Williams' motion for involuntary dismissal, pursuant to Indiana Trial Rule 41(B), was clearly erroneous.

3. Whether the State presented sufficient evidence to support Williams' convictions.

We affirm in part and reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

On December 8, 2006, Amanda Ranger's checkbook was stolen. Ranger's check number 1050 was included in the checkbook. Ranger did not report the theft to police. Rather, three days after the theft she closed her checking account.

On March 10, 2007, Williams opened a new checking account with Old National Bank ("Old National").¹ And on March 19, Williams attempted to deposit Ranger's check number 1050 into her new account. The check was in the amount of $1,050, and purported to bear Ranger's signature. Because of the size of the check and the fact that Williams' checking account was only recently opened, Old National's service representative, Rebecca Dickerson, placed a hold on the check. Dickerson informed Williams that a hold would be placed on the check and that it could take up to seven days to clear. Williams proceeded to deposit the check.

Around April 11, Indianapolis Metropolitan Police Officer Barbara Bertram, a financial crimes investigator, began to investigate Williams' presentation of Ranger's check to Old National. Officer Bertram spoke with employees of Old National, reviewed surveillance video, and spoke with Ranger. Ranger informed Officer Bertram that she had closed her checking account following the theft of her checkbook.

On April 27, 2007, the State charged Williams with forgery, a Class C felony, and attempted theft, as a Class D felony. The State's charge of forgery alleged as follows:

On or about March 19, 2007, [Williams] did, with intent to defraud, utter to Rebecca Dickerson a written instrument, that is: a check number 1050, . . . in such a manner that said instrument purported to have been made by the authority of Amanda M. Ranger, who did not give authority[.]

Appellant's App. at 14. And the State's charge of attempted theft alleged:

Williams, on or about March 19, 2007, did attempt to commit the crime of Theft, which is to knowingly or intentionally exert unauthorized control over the property, that is: United States currency/money, of Old National Bank, with the intent to deprive Old National Bank of any part of the value or use of said property, by engaging in conduct, that is: Gina Williams presented a stolen check for the purpose of depositing it into her account to receive money, knowing she was not entitled to said check or money, which conduct constituted a substantial step toward commission of said crime of Theft[.]

Id. at 15.

At the ensuing bench trial, the State's only evidence that Williams committed the alleged crimes were the facts—testified to by multiple witnesses—that Williams possessed a stolen check, that Ranger did not sign the check, that Williams presented the check to Old National, and that the check was to be deposited in an account that Williams had recently opened. Ranger also testified that she had never before met Williams, and Officer Bertram stated that there was no other evidentiary reason "to think Gina Williams wrote this check . . . [o]ther than it went into her account." Transcript at 19. Officer Bertram further agreed that she had "no information whatsoever that would tie Ms. Williams[,] besides the fact she had this check later on[,] to the theft from Ms. Ranger's car." Id. at 20.

At the close of the State's case-in-chief, Williams moved the court for involuntary dismissal of the charges, pursuant to Trial Rule 41(B), on the grounds that the State did not present any evidence that she "knew that this was a stolen check." Transcript at 22. The court denied Williams' motion. Williams then testified in her own defense, stating that she obtained the check from a third party after she sold an Italian leather couch and sofa at a yard sale. However, the court did "not believ[e] any" of Williams' testimony, and the court found her guilty as charged. Id. at 52. The court then ordered her to serve two years suspended on each count, with the sentences to run concurrently. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Double Jeopardy

Before we address the issue raised by Williams on appeal, we determine sua sponte whether her conviction for attempted theft, as a Class D felony, is barred by double jeopardy. See, e.g., Smith v. State, 881 N.E.2d 1040, 1047 (Ind.Ct.App.2008) ("We raise this issue sua sponte because a double jeopardy violation, if shown, implicates fundamental rights."). As we have stated:

In Richardson v. State (1999) Ind., 717 N.E.2d 32, our Supreme Court established a two-part test for analyzing double jeopardy claims under the Indiana Constitution and concluded:

"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." Richardson, supra at 49.

Thus, even if there was no double jeopardy violation in the present case based upon the essential statutory elements of the crimes of forgery and theft, "a violation may still have occurred if the actual evidence presented at trial demonstrates that each offense was not established by separate and distinct facts." Castillo v. State (2000) Ind.App., 734 N.E.2d 299, 303 (quoting Richardson, 717 N.E.2d at 53), reh'g denied, [summarily aff'd, 741 N.E.2d 1196 (Ind.2001)]. The "`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 the essential elements of a second challenged offense.'" Castillo, 734 N.E.2d at 303 (quoting Richardson, 717 N.E.2d at 53).

Benberry v. State, 742 N.E.2d 532, 537 (Ind.Ct.App.2001).

Here, the State's charging information tracked the statutory language for both the forgery charge and the attempted theft charge. To prove that Williams committed forgery, the State was required to show beyond a reasonable doubt that Williams, "with intent to defraud, ma[de], utter[ed], or possess[ed] a written instrument in such a manner that it purport[ed] to have been made: (1) by another person; (2) at another time; (3) with different provision; or (4) by authority of one who did not give authority." Ind.Code § 35-43-5-2(b) (2006). And to prove that she committed attempted theft, as a Class D felony, the State was required to show beyond a reasonable doubt that Williams "knowingly or intentionally" "engaged in conduct that constitute[d] a substantial step toward" "exert[ing] unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use." I.C. §§ 35-41-5-1 (attempt), 35-43-4-2(a) (theft).

It is clear that "the essential statutory elements of the crimes of forgery and [attempted] theft" do not create a double jeopardy issue. See Benberry, 742 N.E.2d at 537. Nonetheless, the actual evidence presented at trial demonstrates that each offense was not established by separate and distinct facts. Rather, the State's exclusive evidence supporting both the forgery conviction and the attempted theft conviction was the fact that Williams presented the stolen and fraudulent check to Old National. Indeed, Officer Bertram expressly agreed with Williams' trial counsel that Officer Bertram had "no information whatsoever that would tie Ms. Williams[,] besides the fact she had this check later on[,] to the theft from Ms. Ranger's car." Transcript at 20.

Thus, there is 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, because the exact same facts were used against Williams on both charges. See Richardson, 717 N.E.2d at 53. As such, by entering convictions on both the forgery and the attempted theft charges, the trial court impermissibly punished Williams twice for the same offense. See Castillo, 734 N.E.2d at 303. Therefore, we reverse Williams' conviction for attempted theft, as a Class D felony. See, e.g., Richardson, 717 N.E.2d at 55 ("Because both convictions therefore cannot stand, we vacate the conviction with the less severe penal consequences . . . ."). Issue Two: Trial Rule 41(B)

Williams characterizes her appeal as a question of whether the State presented sufficient evidence to support her convictions beyond a reasonable doubt. However, the substance of her appellate argument is that the trial court erred in denying her Trial Rule 41(B) motion for involuntary dismissal.² We review her appeal accordingly. See, e.g., Goodrich v. Dearborn County (In re Sale of Real Prop.), 822 N.E.2d 1063, 1069 (Ind.Ct. App.2005) ("We have often indicated a preference of substance over form. In fact, Ind. Trial Rule 8(F) provides that: `All pleadings shall be so construed as to do substantial justice, lead to...