Williams v. State, 17S00-8805-CR-483

• Decision Date: 31 July 1989
• Docket Number: No. 17S00-8805-CR-483,17S00-8805-CR-483
• Citation: 541 N.E.2d 921
• Parties: Bobbie Sue WILLIAMS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 921

541 N.E.2d 921

Bobbie Sue WILLIAMS, Appellant, v. STATE of Indiana, Appellee.

No. 17S00-8805-CR-483.

Supreme Court of Indiana.

July 31, 1989.

J. Frank Stewart, Angola, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in appellant's conviction of Forgery, a Class C felony, for which she received a sentence of eight (8) years, and five counts of Theft, Class D felonies, for which she received a sentence of four (4) years on each count, all of her sentences to be served consecutively. She also was found to be an habitual offender and the trial court imposed a further sentence of thirty (30) years, giving her a total sentence of fifty-eight (58) years, but the court did not articulate which of her sentences was enhanced due to her habitual offender status. The habitual offender status requires the enhancement of one or more of appellant's underlying sentences instead of the imposition of a separate sentence. Bowens v. State (1986), Ind., 496 N.E.2d 769.

The habitual offender conviction also is defective in that there is no evidence in this record indicating when the prior offenses were committed. The evidence therefore does not satisfy the requirements of the statute. Ind.Code Sec. 35-50-2-8. In order to support the habitual offender charge, the State must not only present evidence as to the dates of the prior convictions but it must also show that the second prior offense was committed after the sentencing on the first offense and that the commission of the instant offense was committed after the conviction of the second offense. There is no such evidence in the case at bar. Therefore, the judgment that appellant is an habitual offender must be set aside. Youngblood v. State (1987), Ind., 515 N.E.2d 522, 527.

The facts are: During the summer of 1984, appellant was employed as a legal secretary by John M. Smith, an attorney in Auburn, Indiana. Part of her responsibilities included bookkeeping for the law firm and for various estates handled by Smith. She was authorized to pay bills and sign checks with her name to fulfill her duties. She also collected and handled the mail.

In February of 1986, Smith was notified by telephone that he was delinquent in paying one of his creditors. Soon thereafter he became suspicious of appellant and began investigating the financial records kept by her. Smith, his accountant, and his bank analyzed the financial status of his accounts and those of the estates for which he was responsible. They learned that appellant had failed to pay several of Smith's creditors, and he owed them thousands of dollars. They also learned that appellant signed Smith's name on checks drawn on the law firm's trust account and deposited the funds into her own account. The investigation revealed that appellant had transferred hundreds of thousands of dollars from various estates and trust funds into other accounts, and then into her own.

In her defense, appellant testified that Smith had borrowed money from her on numerous occasions and the checks made out to her were repayments of these loans. She stated that Smith directed her to pay herself out of the general, trust, or office accounts. She said she was told to sign his name to the checks so that the signature resembled his own. Smith testified that he had borrowed no money from appellant and had no financial relationship with her at all.

Appellant argues her forgery conviction is not supported by sufficient evidence. The information alleged that appellant made or uttered a check for $20,275.00 in such a manner that it purported to have been made by John Martin Smith.

The record shows that Peoples Federal Savings and Loan received a letter from Smith's law office advising them that Smith would redeem the certificates of deposit in the Hottell estate and enclosed was a consent to transfer the certificates. Smith testified that he did not dictate the letter, sign it, or authorize appellant to do so. A check was issued to John Martin Smith, Administrator of the Hottell estate. Appellant stamped the back of the check with Smith's name, wrote under the stamp "Adm WWA/Violette Hottell Estate to John Martin Smith Trust Acct 240-439-0" and deposited it in the City National Bank. Smith testified that the withdrawal slip for the certificate of deposit was not signed by him and no one was authorized to sign it on his behalf, nor was appellant authorized to endorse the check or use the stamp of his name.

Appellant testified that she was authorized to sign checks for the estate accounts, she deposited the check in the proper place in the normal course of business, she did not attempt to cash it, and her actions were pursuant to Smith's instructions. Therefore, she concludes that the State failed to prove her intent to defraud under Ind.Code Sec. 35-43-5-2, which defines the crime of forgery.

On a claim involving the sufficiency of the evidence, this Court will not reweigh the evidence or judge the credibility of the witnesses. Marsillett v. State (1986), Ind., 495 N.E.2d 699. The intent to defraud in a check forgery prosecution may be proven by circumstantial evidence. Wendling v. State (1984), Ind., 465 N.E.2d 169. Proof of monetary gain is not required for a forgery conviction. Flick v. State (1983), Ind., 455 N.E.2d 339.

The issue of whether appellant's actions were pursuant to Smith's instruction is one of fact for the jury to determine upon assessing the credibility of the witnesses's conflicting stories. We will not invade the province of the jury's function. Marsillett, supra. We find the evidence supports the jury's conclusion that appellant cashed the certificate with the intent to defraud Smith, and her forgery conviction is sufficiently supported by the evidence.

Appellant argues the evidence does not support her theft convictions. She claims she was directed to transfer the money...