Daniel L. Preston v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 25, 2015
• Docket: 02A03-1505-CR-400
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Nov 25 2015, 7:21 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 Stanley L. Campbell Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daniel L. Preston, November 25, 2015 Appellant-Defendant, Court of Appeals Case No. 02A03-1505-CR-400 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1309-FB-154

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-400 | November 25, 2015 Page 1 of 5 [1] Daniel L. Preston challenges the sufficiency of evidence supporting his

convictions of Class B felony robbery 1 and Class C felony forgery. 2 We affirm.

Facts and Procedural History [2] Katherine Larrabee was the opening manager of an Express store. On July 3,

2013, Larrabee and Nicole Wagner, an associate, left the store to take the

store’s deposit to the bank. Preston approached Larrabee’s car, held a gun to

her neck, and took the deposit money and Larrabee’s purse containing her

personal credit cards. Juan Nieves witnessed two men in a Mercury Marquis in

the area prior to the robbery and saw the vehicle speed away afterward.

Wagner and Nieves described the men to the police and each picked Preston

out of separate photo arrays.

[3] Later that day, Larrabee’s credit card was used at King City Fashion. Youssouf

Dogro, an employee, knew Preston as a regular customer and questioned his

use of a credit card not in his name. Preston claimed the card belonged to his

girlfriend. Dogro requested Preston’s identification and recorded Preston’s date

of birth and driver’s license number on the receipt. A surveillance camera

captured Preston using the credit card.

[4] The State charged Preston with Class B felony robbery, Class C felony forgery,

and Class D felony receiving stolen property. The jury found him guilty on all

1 Ind. Code § 35-42-5-1 (1984). 2 Ind. Code § 35-42-5-2 (2006).

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-400 | November 25, 2015 Page 2 of 5 three counts, but the court vacated the receiving stolen property count. Preston

was sentenced to twelve years for robbery and four years for forgery, to run

consecutively.

Discussion and Decision [5] There was sufficient evidence to sustain Preston’s convictions. When reviewing

sufficiency of evidence to support a conviction, we consider only the probative

evidence and reasonable inferences supporting the fact-finder’s decision. Drane

v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and not

ours, to assess witness credibility and weigh the evidence to determine whether

it is sufficient to support a conviction. Id. To preserve this structure, when we

are confronted with conflicting evidence, we consider it most favorably to the

ruling. Id. We affirm a conviction unless no reasonable fact-finder could find

the elements of the crime proven beyond a reasonable doubt. Id. It is therefore

not necessary that the evidence overcome every reasonable hypothesis of

innocence; rather, the evidence is sufficient if an inference reasonably may be

drawn from it to support the decision. Id. at 147.

Robbery

[6] Class B felony robbery is committed when a person “knowingly or intentionally

takes property from another person . . . by using or threatening the use of force

on any person . . . while armed with a deadly weapon . . . .” Ind. Code § 35-42-

5-1.

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-400 | November 25, 2015 Page 3 of 5 [7] Larrabee identified Preston, in a photo array, as the person who robbed her.

Nieves identified Preston in a photo array as one of the men involved in the

robbery. See, e.g., Bryant v. State, 278 N.E.2d 576, 576 (Ind. 1972) (eye witness

identification is sufficient to support conviction). There was evidence Preston

used Larrabee’s credit card, which he could not have had if it had not been

stolen. See, e.g., Gibson v. State, 533 N.E.2d 187, 188 (Ind. Ct. App. 1989)

(“mere unexplained, exclusive possession of recently stolen property will

sustain a conviction” and “possession remains unexplained when the trier of

facts rejects the explanation [given]”). Preston’s arguments to the contrary 3 are

invitations for us to reweigh the evidence, which we cannot do. See Drane, 867

N.E.2d at 146 (appellate court will not reweigh evidence on appeal).

Forgery

[8] To prove Preston committed Class C felony forgery, the State was required to

prove that he, “with intent to defraud, ma[de], utter[ed], or possesse[d] a

written instrument in such a manner that it purports to have been made: (1) by

another person; (2) at another time; (3) with different provisions; or (4) by

authority of one who did not give authority.” Ind. Code § 35-42-5-2. A credit

card is a written instrument. Ind. Code § 35-43-5-1(d). “Without question, an

individual who, with intent to defraud, signs a credit card sales receipt ‘in such

a manner that it purports to have been made . . . by another person’ commits

3 Preston testified he was home with his mother at the time of the robbery and a friend of his brother gave him the credit card to use.

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-400 | November 25, 2015 Page 4 of 5 forgery.” Borjas v. State, 946 N.E.2d 1230, 1232 (Ind. Ct. App. 2011) (quoting

Ind. Code § 35-42-5-2), trans. denied.

[9] Preston’s use of Larrabee’s credit card was captured on video surveillance

equipment, and he was identified by Dogro. Preston testified he used the credit

card and he doesn’t “use [his] last name when [he] use[s], like, my mom (sic)

card or somebody else’s, ‘cause they always – when they see it, they be like,

‘Can I see I.D.’ or something.” (Tr. at 261.) His act of signing a name other

than his own when using a card for which he had no authority constitutes

forgery. See Ind. Code 35-42-5-2(a)(1)(D) (forgery occurs when one “makes . . .

a written instrument in such a manner that it purports to have been made by

authority of one who did not give authority”); see also Green v. State, 945 N.E.2d

205, 208 (Ind. Ct. App. 2011) (signing a credit card receipt in such a manner

that it appears to have been signed by someone else is forgery). Preston’s

arguments to the contrary are invitations for us to reweigh the evidence, which

we cannot do. See Drane, 867 N.E.2d at 146 (appellate court will not reweigh

evidence on appeal).

Conclusion [10] The evidence was sufficient to support Preston’s convictions; therefore, we

affirm.

[11] Affirmed.

Crone, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-400 | November 25, 2015 Page 5 of 5