Benefield v. State

904 N.E.2d 239, 2009 Ind. App. LEXIS 645, 2009 WL 943852
Indiana Court of Appeals·Decided April 7, 2009·No. 41A01-0806-CR-272·Published·Cited by 52 cases

Opinions

OPINION

BRADFORD, Judge.

Appellant/Defendant Gloria Benefield appeals following her conviction for Class C felony Forgery.1 Benefield contends that the State failed to produce sufficient evidence to sustain her conviction, that the trial court abused its discretion in instructing the jury, that the trial court abused its discretion in sentencing her, and that her sentence is inappropriate in light of the nature of her offense and her character. We affirm.

FACTS AND PROCEDURAL HISTORY

On March 23, 2005, Benefield applied for a health-care provider position with Re-geney Place in Greenwood and interviewed with Sabra Stark. Specifically, Benefield applied for a position as a Qualified Medication Aide ("QMA"), for which one needs certification from the Indiana Department of Health To that end, Benefield produced a document that appeared to be an "Aide Registry" issued by the Department of Health. Although the document indicated that Benefield was certified as a QMA, Stark noticed that both the QMA certification number and QMA expiration date listed on the document appeared to be in a typeface inconsistent with the rest of the document.

After the interview, Stark called an automated telephone service to verify Bene-field's certifications, only to learn that Benefield was not certified as a QMA. In fact, neither the QMA certification number nor the expiration date listed on the "Aide Registry" were valid. Moreover, the Department of Health does not issue corrected "Aide Registry" letters with the corrections in a different typeface, instead preparing new documents when information has changed.

On September 2, 2005, the State charged Benefield with Class C felony forgery and with being an habitual offender. Before Benefield's jury trial on August 8, 2007, both parties stipulated to the admissibility of several exhibits, including Aide Registry letters from the Department of Health dated May 18, 2005, and August 1, 2007, which were tentatively identified as State's Exhibits 4 and 5 respectively. At trial, Department of Health Program Director of Administration Darlene Jones testified regarding the Aide Registry letters without objection, although they were not, in fact, actually admitted into evidence. Jones's testimony regarding the May 13, 2005, Aide Registry letter was generally comparing it to the Aide Registry letter produced by Benefield to point out differences in typeface, and her testimony regarding the August 1, 2007 letter was generally to establish that it was an example of an original Aide Registry letter. Jones also testified regarding a document that was marked as State's Exhibit 7, [244] but which was not actually entered into evidence. Jones testified that State's Exhibit 7 was a document from the Department of Health establishing that Benefield had taken and failed the QMA certification test twice in 2004.

After the presentation of evidence, the trial court instructed the jury, inter alia, that " 'Defraud means to make a misrepresentation of an existing material fact, knowing it to be false, or making it recklessly without regard to whether it is true or false." Appellant's App. p. 74. Bene-field unsuccessfully objected to this instruction only on the basis that it was apparently drawn from Black's Law Dictionary. After the jury found Benefield guilty as charged, she agreed to plead guilty to the forgery charge (thereby forfeiting the right to challenge her conviction) in exchange for the State agreeing not to seek the habitual offender enhancement. On October 1, 2007, Benefield moved to withdraw her guilty plea to forgery, which motion the trial court granted. On March 25, 2008, the parties stipulated that Benefield had the required prior unrelated felonies necessary to support an habitual offender enhancement. On March 28, 2008, the trial court sentenced Bene-field to eight years of incarceration for forgery, enhanced by six years by virtue of the habitual offender finding. The trial court found Benefield's criminal history and the failure of less-harsh correctional measures to be aggravating circumstances and found no mitigating cireumstances.

DISCUSSION AND DECISION

I. Whether the Trial Court Abused its Discretion in Admitting Testimony Regarding Documents that Were Not Entered into Evidence

Benefield contends that the State's failure to offer into evidence its Exhibits 4, 5, and 7 prevented any witness from properly testifying regarding the contents of those exhibits.2 Benefield, however, did not object to any witness testimony regarding the documents in question and has therefore waived the issue for appellate review. The purpose of the contemporaneous objection rule is to promote a fair trial by preventing a party from sitting idly by and appearing to assent to an offer of evidence or ruling by the court only to ery foul when the outcome goes against him.3 Purifoy v. State, 821 N.E.2d 409, 412 (Ind.Ct.App.2005), trams. denied (citation omitted).

In any event, Benefield points to no authority providing that a witness may not testify regarding a document not admitted into evidence. Benefield cites to Harris v. Primus, 450 N.E.2d 80, 83 (Ind.Ct.App.1983), for the proposition that a witness may not discuss a document that has not been admitted into evidence. Benefield's reliance on Harris, however, is misplaced. Harris stands only for the proposition that a fact-finder may not consider testimonial evidence, such as a deposition, if it has not been admitted into evidence, but not that a fact-finder cannot consider testimony re[245] garding items that have not been admitted. Id. Benefield also contends that State's Exhibit 3, which is apparently a third-generation copy of the Aide Registry letter produced by Benefield during her interview with Stark, violates the best evidence rule and should not have been admitted. We need not address this argument, however, because Benefield again failed to object to the admission of this exhibit and has therefore waived the issue for appellate consideration. See Purifoy, 821 N.E.2d at 412.

II. Whether the Trial Court Abused its Discretion in Instructing the Jury

As previously mentioned, Final Instruction 6 provided that " 'Defraud means to make a misrepresentation of an existing material fact, knowing it to be false, or making it recklessly without regard to whether it is true or false." Appellant's App. p. 74. Benefield contends on appeal that this definition of "defraud" given to the jury impermissibly lowers the mens rea for forgery, which requires, as charged here, an intent to defraud.

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Benefield v. State, 904 N.E.2d 239, 2009 Ind. App. LEXIS 645, 2009 WL 943852 (Ind. Ct. App. 2009).

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