Charlotte N. McGill v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: February 6, 2014
• Docket: 73A01-1305-CR-217
• Status: Unpublished

Opinion

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 Feb 06 2014, 9:03 am judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

GILDA W. CAVINESS GREGORY F. ZOELLER Caviness Law Office, LLC Attorney General of Indiana Rushville, Indiana

MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

CHARLOTTE N. MCGILL, ) ) Appellant-Defendant, ) ) vs. ) No. 73A01-1305-CR-217 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE SHELBY CIRCUIT COURT The Honorable Charles D. O’Connor, Judge Cause No. 73C01-1111-FD-326

February 6, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge Case Summary

Charlotte McGill appeals her convictions for Class D felony fraud and Class D

felony theft. We affirm.

Issues

McGill raises two issues, which we restate as:

I. whether the evidence is sufficient to sustain her convictions; and

II. whether her convictions violate the prohibition against double jeopardy.

Facts

Glen Brooks was a Platinum level Advantage Rewards Program member at

Indiana Grand Casino (“Casino”). He accumulated points on his player’s card that he

could redeem for food, merchandise, and cash for playing on the slot machines, i.e. “free

play.” The player must enter a four-digit pin number to access the free play. Brooks had

two player’s cards for his account. On November 16, 2011, Brooks and his wife went to

the Casino. After several hours, he noticed that he had fewer points than earlier in the

day. He was missing $250.00 in free play and thousands of points. Brooks reported the

discrepancy to the authorities at the Casino.

Upon reviewing video surveillance and computer records of Brooks’s player’s

card, the authorities discovered that Brooks had accidentally left his player’s card in a

slot machine. A Casino patron, later identified as McGill, discovered the card, took it,

used it repeatedly at various slot machines, and took $250.00 in free play from Brooks’s

account. Id. at 107. Agent Anthony Chapman of the Indiana Gaming Commission made

2 contact with McGill, who was still at the Casino. McGill denied having Brooks’s

player’s card.

The State later charged McGill with Class D felony fraud and Class D felony theft.

In the fraud charging information, the State alleged that McGill “did with the intent to

defraud Indiana Grand Casino obtain property, by using, without consent, a credit card,

when said credit card has issued to another person.” App. p. 37. In the theft charging

information, the State alleged that McGill “did knowingly or intentionally exert

unauthorized control over the property of Glen T. Brooks, with the intent to deprive said

person of any part of the use or value of the property.” Id. A jury found McGill guilty as

charged, and the trial court sentenced her to concurrent sentences of one and one-half

years with twenty days executed and seventeen months of probation. McGill now

appeals.

Analysis

I. Sufficiency of the Evidence

McGill argues that the evidence is insufficient to sustain her convictions. When

reviewing the sufficiency of the evidence needed to support a criminal conviction, we

neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003,

1005 (Ind. 2009). “We consider only the evidence supporting the judgment and any

reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there

is substantial evidence of probative value such that a reasonable trier of fact could have

concluded the defendant was guilty beyond a reasonable doubt. Id.

3 Indiana Code Section 35-43-5-4, which governs the offense of fraud, provides: “A

person who . . . with intent to defraud, obtains property by . . . using, without consent, a

credit card that was issued to another person . . . commits fraud, a Class D felony.”

According to McGill, the evidence is insufficient to show that she defrauded the Casino

because there was no explanation as to how she could have accessed Brooks’s card

without his pin number. However, the video surveillance and the computer records from

Brooks’s player’s card clearly show that McGill used the player’s card at various slot

machines and took $250.00 in free play. Although it is unclear how McGill obtained

Brooks’s pin number, the evidence clearly demonstrated that she used his card. The

evidence is sufficient to sustain her conviction for fraud.

Indiana Code Section 35-43-4-2(a), which governs the offense of theft, provides:

“A person who knowingly or intentionally exerts unauthorized control over property of

another person, with intent to deprive the other person of any part of its value or use,

commits theft, a Class D felony.” McGill argues that the State “failed to present

evidence sufficient to establish that McGill knowingly or intentionally exerted control

over Brooks’s card or ever intentionally held or controlled it.” Appellant’s Br. p. 12.

However, the video surveillance shows that Brooks accidentally left his card in a slot

machine. Another patron removed the card from the slot machine and left it on the

machine. Later, another patron set the card between two slot machines. The video then

shows McGill picking up the card and inserting it in the machine. The card was then

used at several slot machines, and McGill is seen on the video surveillance at each of

those slot machines. The evidence is sufficient to sustain McGill’s conviction for theft.

4 II. Double Jeopardy

Next, McGill argues that her convictions violate the prohibition against double

jeopardy. The Double Jeopardy Clause of the Indiana Constitution provides “[n]o person

shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. In

Richardson v. State, 717 N.E.2d 32 (Ind. 1999), our supreme court concluded that two or

more offenses are the same offense in violation of Article 1, Section 14 if, with respect to

either the statutory elements of the challenged crimes or the actual evidence used to

obtain convictions, the essential elements of one challenged offense also establish the

essential elements of another challenged offense. Garrett v. State, 992 N.E.2d 710, 719

(Ind. 2013).

McGill seems to argue that her convictions for fraud and theft violate the actual

evidence test. “Under the actual evidence test, we examine the actual evidence presented

at trial in order to determine whether each challenged offense was established by separate

and distinct facts.” Id. To find a double jeopardy violation under this test, we must

conclude that there is “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.” Id. “The actual

evidence test is applied to all the elements of both offenses.” Id. “‘In other words . . . the

Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing

the essential elements of one offense also establish only one or even several, but not all,

of the essential elements of a second offense.’” Id. (quoting Spivey v. State, 761 N.E.2d

831, 833 (Ind. 2002)).

5 In Richardson, our supreme court acknowledged that double jeopardy is not

implicated where different victims are involved. Frazier v. State, 988 N.E.2d 1257, 1264

(Ind. Ct. App. 2013) (citing Richardson, 717 N.E.2d at 50 n.40). Our courts have

repeatedly upheld this principle, finding no double jeopardy violation where there are

multiple victims of the same crime. Id. Here, there are separate victims—the Casino and

Brooks.1 Consequently, McGill’s double jeopardy argument fails.

Conclusion

The evidence is sufficient to sustain McGill’s convictions, and her convictions do

not violate the prohibition against double jeopardy. We affirm.

Affirmed.

ROBB, J., and BROWN, J., concur.

1 McGill’s reliance on Trotter v. State, 733 N.E.2d 527 (Ind. Ct. App. 2000), trans. denied, is misplaced because different victims for the charges are not mentioned in that case. 6