MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Nov 02 2015, 8:56 am 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 ATTORNEYS FOR APPELLEE Jennifer A. Joas Gregory F. Zoeller Madison, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Chris Harkins, November 2, 2015 Appellant-Defendant, Court of Appeals Case No. 15A01-1412-CR-553 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff Humphrey, Judge Trial Court Cause No. 15C01-1408FC-56
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 1 of 20 Case Summary and Issues [1] Following a jury trial, Chris Harkins was convicted of five counts of forgery, all
Class C felonies; two counts of identity deception, both Class D felonies; two
counts of credit card fraud, both Class D felonies; and one count of deception, a
Class A misdemeanor. The jury also found Harkins to be an habitual offender.
Harkins appeals his convictions, raising four issues for our review: 1) whether
the trial court erred in denying his motion for severance; 2) whether the trial
court erred in denying his motion for continuance; 3) whether the trial court
erred in denying his motion to exclude evidence; and 4) whether his convictions
violate the prohibition against double jeopardy. Concluding the trial court did
not err and Harkins’ convictions do not violate the prohibition against double
jeopardy, we affirm.
Facts and Procedural History [2] In April of 2012, forty-four-year-old Chris Harkins moved in with his parents,
James and Cheryl Harkins, at their residence in Bright, Indiana. Over the next
seventeen months, Harkins resided in his parents’ basement, which housed the
couple’s personal financial records. During this time, Harkins often fetched the
mail for his parents. When Harkins moved out of his parents’ residence in
September 2013, he maintained access to the home via a garage door opener
and house key. Harkins moved to Aurora, Indiana.
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 2 of 20 [3] In May 2014, Cheryl received an American Express credit card statement in the
mail. The statement reflected a balance due of $37,801.03; the vast majority of
the charges were from Best Buy. This came as a surprise to James and Cheryl
because they each maintained physical possession of their American Express
credit cards and had not incurred the charges. Although Harkins did not have
permission to use the credit card, Cheryl suspected her son was responsible.
When Cheryl confronted Harkins, he stated he was going to cover the bill.
James and Cheryl cancelled their cards and received two new cards.
[4] Shortly after receiving the new credit cards, the couple discovered additional
fraudulent activity on their American Express account. They reported the
activity to Deputy Adam Ziegler of the Dearborn County Sheriff’s Department.
Further, the pair contacted Best Buy and were told the charges stemmed from
online purchases. Ultimately, they went to their bank to change their account
numbers and to discuss lengthening their second mortgage. The bank
discovered the couple’s credit score—previously around 800—had dropped
significantly to the low 500s. Moreover, the credit report showed fraudulent
charges to the couple’s Discover and Sears credit cards. The couple never
authorized Harkins as a user on the Discover card, but he had somehow been
authorized on the account.
[5] During his investigation into the fraudulent activity, Deputy Ziegler discovered
another Sears credit card had been issued through Citibank in James’ name.
Multiple forged convenience checks were associated with this account. Three
checks were paid to the order of Discover. Two checks were paid to the order
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 3 of 20 of Bright Paralegal Services, a company ostensibly owned by Harkins. All the
checks purported to be written by James; James denied writing or signing any
of these checks.
[6] Deputy Ziegler then obtained records from Woodforest Bank for two accounts
under Harkins’ name and a third account for Bright Paralegal Services, for
which Harkins was the authorized signor. On the two personal accounts,
Harkins named Bright Paralegal Services as his employer. The records
indicated deposits made from the forged convenience checks. There were also
numerous transactions for Rising Star and Hollywood Casinos.
[7] Additionally, the investigation revealed the address associated with the Sears
Citibank account had been changed from James’ and Cheryl’s home address to
Harkins’ new address in Aurora. Further, Deputy Ziegler discovered a
BestBuy.com account in Cheryl’s name. One of the transactions on the account
was for the purchase of a PlayStation 4. Cheryl’s credit card was used to pay
for the device. Cheryl denied ever creating a BestBuy.com account and did not
authorize the purchase of the PlayStation. James and Cheryl also discovered
multiple pieces of jewelry were missing from their home. Harkins, again
without permission, took the items and pawned them at a Quick Cash Pawn
Shop.
[8] On June 2, 2014, Deputy Ziegler interviewed Harkins. Harkins admitted to
making the purchases from BestBuy.com with Cheryl’s credit card. Harkins
also admitted to making thousands of dollars of charges on his parents’ credit
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 4 of 20 cards. Despite admitting to “robbing Peter to pay Paul,” Harkins claimed he
had his parents’ permission. Transcript at 137. Additionally, Harkins admitted
he liked to gamble and many of the items he purchased with the credit cards
were sold for the purpose of gaining gambling funds.
[9] The police then obtained and executed a search warrant at Harkins’ residence
in Aurora. At the home, the police discovered a BestBuy.com receipt for which
Harkins used Cheryl’s name and credit card; a Discover credit card offer letter
addressed to James at Harkins’ address in Aurora; several pieces of mail
addressed to Cheryl at her home address; a Sears credit card issued by Citibank;
a Discover collection letter addressed to James at Harkins’ address in Aurora;
and multiple receipts showing purchases using either James’ or Cheryl’s credit
cards.
[10] On August 6, 2014, the State charged Harkins with five counts of forgery
(Counts I-V), Class C felonies; two counts of identity deception (Counts VI and
VII), Class D felonies; three counts of credit card fraud (Counts VII-X), Class D
felonies; receiving stolen property (Count XI), a Class D felony; and deception
(Count XII), a Class A misdemeanor. Additionally, the State alleged Harkins
was an habitual offender. After the State filed charges, Harkins’ sister and ex-
wife visited Harkins’ residence in Aurora. They discovered a pad of paper
where Harkins had been practicing the signatures of other people, including
James’ signature; bills with James’ and Cheryl’s names, but with Harkins’
address; multiple Best Buy receipts; a copy of Cheryl’s driver’s license; a copy
of Cheryl’s debit card; a copy of Cheryl’s credit report; mail with information
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 5 of 20 pertaining to Cheryl’s retirement account, but with Harkins’ address; and
James’ and Cheryl’s bank and credit card statements.
[11] On August 11, 2014, Harkins filed a motion for speedy trial. The trial court
scheduled a jury trial for October 20, but it was later moved to November 3.
On October 31, the State filed a motion to amend the charging information,
which the trial court granted. Prior to the commencement of trial, Harkins filed
a motion to sever the counts, which the trial court denied. On the morning of
trial, Harkins filed a motion to continue due to the absence of cell phone
records, evidence he considered material. The trial court denied Harkins’
motion. After the trial court seated the jury and released them for the evening,
but prior to the presentation of any evidence, Harkins moved to exclude
evidence—Harkins’ Woodforest Bank records—he had just received from the
State that afternoon. The trial court took the motion under advisement pending
presentation of the evidence at trial. When the State moved to admit the bank
records at trial, the trial court denied Harkins’ motion to exclude the evidence.
[12] On November 5, the State filed its second motion to amend the charging
information, which the trial court granted. Following trial, the jury found
Harkins guilty on Counts I-IX and XII. The jury found Harkins not guilty on
Count X and was unable to reach a verdict on Count XI. The jury also found
Harkins was an habitual offender. The trial court sentenced Harkins to a total
of twenty-two years in the Indiana Department of Correction. This appeal
ensued.
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 6 of 20 Discussion and Decision I. Motion for Severance A. Standard of Review [13] Harkins argues the trial court erred in denying his motion to sever. In Indiana,
there are two classifications for severance: 1) severance as a matter of right; and
2) severance by trial court discretion. Ind. Code § 35-34-1-11(a). A defendant is
entitled to severance, and the trial court has no discretion to deny a motion for
severance when the offenses have been joined solely because they are of the
same or similar character. Pierce v. State, 29 N.E.3d 1258, 1264 (Ind. 2015).
Whether a defendant is entitled to severance as a matter of right is reviewed de
novo. Id. If the defendant is not entitled to severance as of right, whether to
sever multiple charges is within the trial court’s discretion, and we will only
reverse upon a showing of clear error. Heinzman v. State, 895 N.E.2d 716, 721
(Ind. Ct. App. 2008), trans. denied.
B. Severance by Right [14] First, Harkins contends the State joined the charges solely on the grounds they
were of the same or similar character. Indiana law provides two or more
offenses can be joined “when the offenses: (1) are of the same or similar
character, even if not part of a single scheme or plan; or (2) are based on the
same conduct or a series of acts connected together or constituting parts of a
single scheme or plan.” Ind. Code § 35-34-1-9(a). “Whenever two (2) or more
offenses have been joined for trial in the same indictment or information solely
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 7 of 20 on the ground that they are of the same or similar character, the defendant shall
have a right to a severance of the offenses.” Ind. Code § 35-34-1-11(a).
However, if joinder is “based on the same conduct or a series of acts connected
together,” Ind. Code § 35-34-1-9(a)(2), the defendant is not entitled to severance
as of right, Pierce, 29 N.E.3d at 1265. Thus, we are tasked with determining
whether, under subsection 9(a)(2), Harkins’ offenses are based on the same
conduct or a series of acts connected together.
[15] “To determine whether offenses warrant joinder under subsection (9)(a)(2), we
ask whether the operative facts establish a pattern of activity beyond mere
satisfaction of the statutory elements. It is well-settled that a common modus
operandi and motive can sufficiently link crimes committed on different crimes.”
Id. at 1266. Moreover, “[o]ffenses can also be linked by a defendant’s efforts to
take advantage of his special relationship with the victims.” Id.
[16] Here, the State charged Harkins with five counts of forgery, two counts of
identity deception, three counts of credit card fraud, and one count of
deception. He argues “the crimes were not unique or distinctive enough to
qualify as being part of a modus operandi [sic] because the various transactions
occurred over nearly a one year period of time at various places and in different
manners.” Appellant’s Brief at 12. Conversely, the State argues, “Harkins
committed a series of connected acts against his family, for his actions formed a
single scheme to defraud his elderly parents.” Brief of Appellee at 14. We
agree with the State.
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 8 of 20 [17] While his parents allowed Harkins to live in their basement, Harkins took
advantage of their generosity by gaining access to their personal and financial
records. Such information provided Harkins—and only Harkins—the unique
and distinct ability to perpetuate check forgery, identity deception, and credit
card fraud against his parents on a consistent basis throughout an eleven-month
period. See Heinzman, 895 N.E.2d at 720 (“‘Modus operandi’ means ‘method of
working,’ and refers to a pattern of criminal behavior so distinctive that separate
crimes may be recognized as the work of the same wrongdoer.”). Harkins’
modus operandi is further evidenced by the fact his sole victims were his parents.
Moreover, the record indicates a common motive: stealing his parents’ money
to cover his personal debts and gambling habits. The charged offenses are
based on a series of acts significantly connected due to Harkins’ common
motive, modus operandi, and the fact Harkins capitalized on his special
relationship with his parents. Because the acts are significantly connected, we
conclude Harkins instituted a common scheme to defraud his parents, and
therefore he was not entitled to severance as a matter of right.
C. Discretionary Severance [18] In the alternative, “Harkins argues that the trial court abused its discretion in
not severing his charges in order to promote a fair determination of his case.”
Appellant’s Br. at 9. Indiana law provides:
[T]he court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense considering: Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 9 of 20 (1) the number of offenses charged; (2) the complexity of the evidence to be offered; and (3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
Ind. Code § 35-34-1-11(a).
[19] In Heinzman, the State charged the defendant “in twenty-nine various counts
with at least five offenses, even though there were only two victims.” 895
N.E.2d at 721. We agreed with the defendant that “the sheer volume of the
charges . . . made it difficult for the jury to distinguish the evidence and apply
the law intelligently to each offense.” Id. at 722 (alteration in original). We
affirmed the trial court’s denial of severance, however, because the jury found
the defendant not guilty on four counts, thereby indicating it was able to
distinguish the evidence and apply the law intelligently. Id.
[20] Here, the State charged Harkins with twelve counts related to five separate
offenses committed against two victims. Harkins argues the number of charges,
combined with the varying offenses, “had to result in a great deal of confusion
to the jury based on the number of offenses charged.” Appellant’s Br. at 14.
We would be more inclined to agree had the jury convicted Harkins on all
counts. Similar to Heinzman, however, the jury found Harkins guilty on ten
counts, not guilty on one count, and was unable to reach a verdict on another.
Further, the evidence presented at trial was not overtly complex. The
evidentiary portion of trial lasted two days and included just six witnesses.
Even assuming the evidence was indeed complex, we find it convincing the jury
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 10 of 20 still distinguished the evidence on the varying counts and applied the law
intelligently to each offense. Because the record indicates no clear error, we
conclude the trial court did not abuse its discretion in denying Harkins’ motion
for severance.
II. Motion for Continuance [21] Harkins argues the trial court erred in denying his motion for a continuance
made on the morning of his jury trial. If a defendant’s motion for continuance
is based on the absence of material evidence, as Harkins’ motion was, and if
certain statutory criteria are met, then the defendant is entitled to a continuance
as a matter of right. See Ind. Code § 35-36-7-1 (requiring, in pertinent part, a
defendant file an affidavit for a continuance not later than five days before the
commencement of trial); Gibson v. State, 2015 WL 5612775, at *3 (Ind. 2015).
Harkins did not file an affidavit for a continuance until the morning of trial and
therefore was not entitled to a continuance as a matter of right. See id.
[22] If a defendant is not entitled to a continuance as a matter of right, “a trial court
has wide discretion to deny a motion to continue.” Gibson, 2015 WL 5612775,
at *3. We will only find an abuse of discretion when a defendant shows
prejudice as a result of not getting a continuance. Id. “To demonstrate such
prejudice, a party must make a specific showing as to how the additional time
requested would have aided counsel.” Id. (citation and internal quotation
marks omitted). Continuances for the purpose of gaining additional trial
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 11 of 20 preparation are generally disfavored. Robinson v. State, 724 N.E.2d 628, 634
(Ind. Ct. App. 2000), trans. denied.
[23] Here, “Harkins argues that the denial of the motion prevented him from
presenting exculpatory evidence that was the sole source of his defense.”
Appellant’s Br. at 16. Specifically, he claims cell phone text messages between
his parents and himself would show “he had permission to use his parents [sic]
credit cards.” Id. But, according to the record, a miscommunication occurred
between Harkins and his counsel. The miscommunication resulted in Harkins
not being able to attain the cell phone records prior to the commencement of
trial. In denying the motion, the trial court reasoned,
The Court scheduled this matter at your request, sir, for speedy trial. There were two opportunities—once was last Monday, the other one was last Friday—to raise this issue. *** [I]t would not make a whole lot of sense to the Court that I’d have to continue this to obtain records of cell phone text messages that would be on a cell phone, sent by your client, on his cell phone, that is in his possession. Again, the speedy trial request was demanded by Mr. Mr. Harkins [sic]. There were multiple opportunities to raise this before now.
Supplemental Transcript at 14-15.
[24] We agree with the trial court. Harkins had multiple opportunities to raise the
issue prior to the commencement of trial; he failed to do so. Moreover, we find
his argument unpersuasive. He has failed to show any prejudice from the
denial of the continuance. Although he claims he needed his parents’ cell
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 12 of 20 phone records in order to advance his defense theory, he always had access to
his own cell phone records, which could also provide the exculpatory evidence
he allegedly needed. The trial court did not abuse its discretion.
III. Motion to Exclude Evidence [25] Harkins argues the trial court erred by allowing into evidence, over his
objection, the Woodforest Bank records. Specifically, Harkins contends the
State violated the trial court’s discovery order by not providing discovery within
thirty days of the order, and therefore the evidence should have been excluded.
The State counters Harkins waived the issue by not filing a motion for
continuance along with the motion to exclude. We agree with the State.
[26] The trial court’s discovery order, dated September 22, required the State to
provide to Harkins “any sort of books, papers, documents, photographs, other
tangible objects, which the prosecuting attorney intends to use in the hearing or
trial or which were obtained from or belong to the accused.” Tr. at 51.
Moreover, the order required the State to provide discovery within thirty days
of the order. It is apparent the State violated the court’s discovery order in
furnishing Harkins’ Woodforest Bank records to him on the first day of trial—
November 3. In doing so, the State also violated Indiana Trial Rule 34(C)(2)1
1 The rule provides:
Neither a request nor subpoena to produce or permit as permitted by this rule shall be served upon a non-party until at least fifteen (15) days after the date on which the party intending to serve such request or subpoena serves a copy of the proposed request and subpoena on all other parties. Provided, however, that if such request or subpoena relates to a matter set for hearing within such
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 13 of 20 by failing to serve Harkins with advance notice of the proposed subpoena to
Woodforest Bank. Although these discovery violations are no doubt a matter
of concern, “the proper remedy for a discovery violation is a continuance.”
Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000). “Failure to alternatively
request a continuance upon moving to exclude evidence, where a continuance
may be an appropriate remedy, constitutes a waiver of any alleged error
pertaining to noncompliance with the court’s discovery order.” Id. Here,
Harkins moved to exclude the bank records, but he did not request a
continuance. Thus, the issue is waived.
[27] Waiver notwithstanding, Harkins still cannot prevail. “Exclusion of evidence
as a remedy for a discovery violation is only proper where there is a showing
that the State’s actions were deliberate or otherwise reprehensible, and this
conduct prevented the defendant from receiving a fair trial.” Id. (emphasis
added). On the first day of trial, the State received the bank records, provided
the records to Harkins, and Harkins subsequently moved for exclusion. At this
point, no party had given opening statements and the jury had already been
released for the evening. The trial court took the motion for exclusion under
advisement. The trial court did not convene the following day due to a court
holiday. When court reconvened, the State moved to admit the Woodforest
fifteen (15) day period or arises out of a bona fide emergency, such request or subpoena may be served upon a non-party one (1) day after receipt of the proposed request or subpoena by all other parties. (Emphasis added.) Although the State argues time was short due to the speedy trial setting, it failed to provide any notice to Harkins prior to subpoenaing records from Woodforest Bank.
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 14 of 20 Bank records during its case-in-chief. Harkins renewed his motion to exclude.
The trial court overruled Harkins’ motion and admitted the records into
evidence. The trial record indicates Harkins’ counsel had time to review the
bank records with the State, and the parties redacted the bank records in a
satisfactory manner prior to their admission.
[28] We are not persuaded the State’s actions were deliberate or reprehensible.
Again, we do not condone such discovery violations, but the State learned of
the potential evidence just days before trial, immediately issued a subpoena to
Woodforest Bank, and provided the records to Harkins as soon as it received
them. Moreover, the State asserts its failure to provide Harkins with notice of
the subpoena was “inadvertent because both parties were in a rush to prepare
for trial and were actively conducting discovery in the two weeks leading up to
trial.” Br. of Appellee at 24 n.6. Finally, we find it difficult to believe Harkins’
contention that the evidence caused an unfair surprise. Harkins had knowledge
of his personal accounts with Woodforest Bank and had time to review and
redact the records prior to the records being admitted. Therefore, even had the
issue not been waived, the trial court did not err in denying the motion to
exclude.
IV. Double Jeopardy [29] Harkins argues his convictions on Count VII, identity deception, and Count
VIII, credit card fraud, violate the prohibition against double jeopardy in that
the same evidence was used to convict Harkins of both Counts. Article 1,
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 15 of 20 Section 14 of the Indiana Constitution provides, “No person shall be put in
jeopardy twice for the same offense.”
[T]wo or more offenses are the ‘same offense’ in violation of Article 1, 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.
Cross v. State, 15 N.E.3d 569, 571 (Ind. 2014) (alteration and emphasis in
original) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). We review
double jeopardy claims de novo. Strong v. State, 29 N.E.3d 760, 766 (Ind. Ct.
App. 2015).
[30] Specifically, Harkins contends his Count VII and VIII convictions violate the
actual evidence test.2 In evaluating two convictions under this test:
[W]e examine the actual evidence presented at trial in order to determine whether each challenged offense was established by separate and distinct facts. 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.
2 Harkins concedes the two statutes “each contain an element or two not shared by the other. Therefore, Harkins does not contend his convictions for these crimes violate the statutory elements test.” Appellant’s Br. at 22 (citations omitted).
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 16 of 20 Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citations and internal
quotation marks omitted). 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.’” Spivey v. State, 761 N.E.2d
831, 833 (Ind. 2002).
[31] Determining whether there is a reasonable possibility the jury used the same
evidentiary facts to reach two convictions “requires substantially more than a
logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). Tasked
with such a determination, “[w]e evaluate the evidence from the jury’s
perspective and may consider the charging information, jury instructions, and
arguments of counsel.” Garrett, 992 N.E.2d at 720. Ultimately, if we find the
jury “may have latched on to exactly the same facts for both convictions[,]”
then a double jeopardy violation is present. Id. (citation omitted).
[32] Here, the charges as relayed in the final jury instructions read:
Count VII [identity deception], states that on or between February, 2014, and April, 2014, in Dearborn County, State of Indiana, Chris E. Harkins did knowingly or intentionally obtain, possess, transfer or use the identifying information of another person, to-wit: Cheryl Harkins, without the other person’s consent and with intent to profess to be another person, to-wit: made credit card purchases by using the identity and credit card of Cheryl Harkins. *** Count VIII [credit card fraud], states that on or between April 1, Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 17 of 20 2014, and April 15, 2014, in Dearborn County, State of Indiana, Chris E. Harkins did, with intent to defraud, obtain property, to- wit: made numerous purchases with American Express by using, without the consent, a credit card that was issued to another person, to-wit: Cheryl Harkins.3
Id. at 698. Additionally, the jury instructions included the statutory definition
of each offense. As to Count VII, identity deception, the State had to prove
beyond a reasonable doubt: 1) The defendant 2) knowingly or intentionally 3)
obtained, possessed, transferred or used the identifying information of Cheryl
Harkins 4) without Cheryl Harkins’ consent 5) with intent to profess to be
Cheryl Harkins. Ind. Code § 35-43-5-3.5. As to Count VIII, credit card fraud,
the State had to prove beyond a reasonable doubt: 1) The defendant 2) with
intent to defraud 3) obtained property 4) by using a credit card issued to Cheryl
Harkins, 5) without Cheryl Harkins’ consent. Ind. Code § 35-43-5-4.
[33] The evidence supporting Harkins’ conviction on Count VIII was his fraudulent
use of Cheryl’s American Express and Discover credit cards. Harkins claims
the exact evidentiary facts used to convict him on Count VIII were also used to
convict him on Count VII. See Appellant’s Br. at 22 (“[T]he crux of both
charges is that Harkins used Cheryl Harkins [sic] American Express credit card
. . . .”). We disagree.
3 We note this language is nearly identical to the charging information as read to jury in the preliminary instructions. See Appellant’s Appendix at 641.
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 18 of 20 [34] First, the State made no reference to credit cards when giving its closing
argument as to Count VII, focusing instead on Cheryl’s identification. Second,
the fact Harkins fraudulently used Cheryl’s credit card is not the sole fact on
which the jury could have found Harkins guilty of identity deception. For
example, the evidence showed Harkins possessed vast amounts of Cheryl’s
mail, copies of Cheryl’s driver’s license and debit card, and Cheryl’s credit
report. The evidence showed Harkins used Cheryl’s identity in creating a
BestBuy.com account under her name. The evidence of both acts is sufficient
for the jury to conclude Harkins knowingly or intentionally obtained,
possessed, transferred or used the identifying information of Cheryl Harkins,
without Cheryl Harkins’ consent, and with intent to profess to be Cheryl
Harkins. See Sandleben v. State, 22 N.E.3d 782, 791 (Ind. Ct. App. 2014) (“The
fact finder is entitled to infer intent from the surrounding circumstances.”)
(citation omitted), trans. denied.
[35] Finally, we note it is logically possible for the jury to rely on the fraudulent
American Express credit card transactions to convict Harkins on Counts VII,
identity deception. Our precedent, however, requires “substantially more than
a logical possibility.” Lee, 892 N.E.2d at 1236. Due to other facts supporting a
conviction of identity deception, such possibility is not reasonable in this case.
Because it is not a reasonable possibility the jury latched on to exactly the same
facts for both convictions, there is no violation of the prohibition against double
jeopardy.
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 19 of 20 Conclusion [36] The trial court did not abuse its discretion in denying Harkins’ motion for
severance, motion to continue, or motion to exclude evidence, and Harkins’
convictions on Counts VII and VIII do not constitute double jeopardy.
Harkins’ convictions are therefore affirmed.
[37] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 15A01-1412-CR-553 | November 2, 2015 Page 20 of 20