MEMORANDUM DECISION 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 FILED the defense of res judicata, collateral Apr 19 2017, 10:03 am estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Darren Bedwell Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Garden, April 19, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1337 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc T. Appellee-Plaintiff. Rothenberg, Judge Trial Court Cause No. 49G02-1405-FC-26051
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 1 of 20 Case Summary [1] Appellant-Defendant David Garden engaged in a series of fraudulent real estate
transactions from approximately 2010 until 2014. In May of 2014, Garden was
charged with twenty-seven felony counts. The first count alleged that Garden
had committed acts supporting a pattern of racketeering activity by means of
forgery and theft. The others alleged that Garden had committed numerous
forgeries and thefts. One of the theft charges was dismissed prior to trial.
Garden’s remaining charges consisted of one count of Class C felony corrupt
business influence, eleven counts of Class C felony forgery, and fourteen counts
of Class D felony theft.
[2] The case was tried before a jury on April 4, 2016. Appellee-Plaintiff the State of
Indiana (“the State”) dismissed one theft count following the presentation of the
evidence, and the jury found Garden not guilty of three other theft counts. The
jury found Garden guilty of each of the remaining twenty-two counts. The trial
court subsequently sentenced Garden to an aggregate term of twenty-four years,
with three years executed in the Department of Correction (“DOC”), three
years executed in community corrections, eighteen years suspended, and eight
years and five days served on probation.
[3] On appeal, Garden challenges the sufficiency of the evidence to sustain six of
his convictions for Class C felony forgery. Finding that the evidence is
sufficient to sustain the challenged convictions, we affirm.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 2 of 20 Facts and Procedural History1 [4] From approximately 2010 through 2014, Garden engaged in a series of
fraudulent real estate transactions. In some cases, Garden would offer to sell a
home for an individual, obtain a quitclaim deed for the property, and then enter
into a rent-to-own agreement with a subsequent victim that was contrary to the
authority given to him by the original owner. In other cases, Garden would get
his victims to sign rental agreements or lease- or rent-to-own agreements on
properties where either (1) he did not have the authority to make said
agreement or (2) where rental was ultimately not feasible. Once the rental
agreements relating to these properties fell through, Garden would not return
any funds paid by his victims in compliance with the agreements.
[5] On May 19, 2014, the State charged Garden with twenty-seven felony counts,
alleging under Count I that Garden had committed acts supporting a pattern of
racketeering activity by means of forgery and theft. The additional twenty-six
counts alleged that Garden had committed numerous forgeries and thefts. The
State subsequently dismissed Count Twenty-two, which alleged that Garden
had committed Class D felony theft. Garden’s remaining charges consisted of
1 We note that because Garden was charged with and convicted of such a large number of crimes, it would be a burden to the reader to include facts relating to the unchallenged convictions in the instant appeal. In addition, it seems most helpful to the reader to provide only general facts and the case’s procedural history in this section. Specific facts relating to the challenged convictions will be included in the Discussion and Decision section below.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 3 of 20 one count of Class C felony corrupt business influence, eleven counts of Class C
felony forgery, and fourteen counts of Class D felony theft.
[6] The matter proceeded to an April 4, 2016 jury trial. Following the presentation
of the evidence, the State dismissed Count Nineteen, which alleged that Garden
had committed Class D felony theft. The jury subsequently found Garden not
guilty of Counts Ten, Twelve, and Seventeen, all of which alleged that Garden
had committed Class D felony theft. The jury found Garden guilty of each of
the remaining twenty-two counts. On May 25, 2016, the trial court sentenced
Garden to an aggregate term of twenty-four years, with three years executed in
the DOC, three years executed in community corrections, eighteen years
suspended, and eight years and five days served on probation. This appeal
follows.
Discussion and Decision [7] Garden contends that the evidence is insufficient to sustain six of his
convictions for Class C felony forgery. Specifically, Garden challenges the
sufficiency of the evidence to sustain his forgery convictions under Counts Six,
Eleven, Fifteen, Sixteen, Eighteen, and Twenty-four.2
2 The “Statement of the Issues” portion of Garden’s Appellant’s brief also indicates that Garden is challenging the sufficiency of the evidence to sustain Count 8. However, Garden presents no argument in relation to Count 8. As such, any challenge to Count 8 is waived. See Hollowell v. State, 707 N.E.2d 1014, 1025 (Ind. Ct. App. 1999).
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 4 of 20 When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original). Upon review, appellate courts do not reweigh the evidence or assess
the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.
2002).
[8] At the time Garden committed the charged offenses, Indiana Code section 35-
43-5-2(b) provided that “[a] person who, with intent to defraud, makes, utters,
or possesses 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; commits forgery, a Class
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 5 of 20 C felony.” In interpreting this statute, the Indiana Supreme Court held as
follows:
We think that the express language of our current forgery statute makes it clear that our legislature intended to extend the common law offense of forgery to include crimes never before deemed to be within the scope of the offense. This has been done by shifting the focus from the “false making” of things that may be forged to the means whereby forgery may be accomplished. As our Court of Appeals stated in Bowman v. State (1979), Ind. App., 398 N.E.2d 1306, 1309, “[w]e believe that in keeping with the intent and spirit and the express wording of the new criminal code, and specifically the forgery section, that in addition to the old definitions of forgery, forgery includes every act which fraudulently makes an instrument appear what it is not.”
Our application of the forgery statute is also aided by the broad definitions contained within the Code. “‘Utter’ means to issue, authenticate, transfer, publish, deliver, sell, transmit, present, or use.” Ind. Code § 35-41-1-2 (emphasis added). “‘Make’ means to draw, prepare, complete, or alter any written instrument in whole or in part.” Ind. Code § 35-43-5-1 (emphasis added). “‘Written instrument’ means a paper, document, or other instrument containing written matter and includes ... other objects or symbols of value, right, privilege, or identification.” Id.
Jordan v. State, 502 N.E.2d 910, 913 (Ind. 1987).
A. Facts and Analysis Relating to Count Eleven [9] In 2000, Kenneth McCalep purchased a home located at 2002 South Wagner
Lane in Indianapolis (the “Wagner property”). In 2011, McCalep was having
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 6 of 20 problems paying his mortgage when he came into contact with Garden.
Garden told McCalep that he could help McCalep sell the Wagner property.
[10] McCalep ultimately decided to work with Garden to sell the Wagner property.
In order to do so, McCalep signed the following documents at Garden’s
direction: (1) a Listing Contract, (2) a Quitclaim Deed indicating that the
Wagner property was being sold to Garden for $100.00 in consideration, and
(3) a Buyer’s Exclusive Agency Contract. McCalep discussed these forms with
Garden at the time each form was executed. Each time, Garden indicated that
the forms were “whatever you fill out when you try to sell your home or put it
on the market as listed.… Basically, something that [was] needed to put the
house on the market [and for Garden] to try to sell it for [McCalep].” Tr. Vol.
II, p. 391.
[11] Some time later, Garden informed McCalep that he needed to vacate the
Wagner property as part of the selling process. McCalep and his family moved
to another location. At some point after he had moved out of the Wagner
property, McCalep was informed by relatives that there were other persons
living in the Wagner property. McCalep was surprised because Garden had not
informed him that he had sold the Wagner property and McCalep had not
given permission for anyone to move into the Wagner property. McCalep then
reached out to Garden and the following conversation took place:
Well, I told him that at that time I thought that he was going to just sell the house so I could try to get it sold. And then a conversation struck up that he said something in regards to that
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 7 of 20 Quitclaim Deed that he had presented to me and that I had sold the house to him and I no longer owned the house and he could do whatever he wanted to with it.
Tr. Vol. II, p. 394. McCalep never received any rent money from Garden or
from the individuals who had moved into the Wagner property.
[12] After contacting law enforcement, McCalep eventually regained possession of
the Wagner property. Upon regaining possession, McCalep observed the
following:
The plumbing was all messed up. The electrical -- I had an alarm system in there. It was totally disassembled. My air conditioner unit was stolen. The furnace was stripped out. Feces all over the floor, carpet burnt. It was all that kind of stuff.
Tr. Vol. II, p. 398.
[13] The State subsequently alleged that Garden “on or about October 27, 2011, did,
with intent to defraud, make a written instrument, that is: a document entitled
Quitclaim Deed … in such a manner that said instrument purported to have
been made by the authority of Kenneth McCalep, who did not give
authority[.]” Appellant’s App. Vol. II, pp. 108-09. Following trial, the jury
found that the evidence was sufficient to prove the allegations set forth above.
[14] Review of the record reveals that Garden obtained McCalep’s signature on the
quitclaim deed through fraud. Garden obtained McCalep’s signature on the
deed under the pretense that he was going to sell the Wagner property for
McCalep—which was the only authority that McCalep understood himself to Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 8 of 20 be granting to Garden by signing the document. McCalep neither understood
that he was signing a document which would transfer his ownership of the
property nor did he intend to do so.
[15] By deceiving McCalep in this way, Garden made the Quitclaim Deed appear to
be something which it was not. Again, the Indiana Supreme Court has held
that forgery “includes every act which fraudulently makes an instrument appear
what it is not.” Jordan, 502 N.E.2d at 913. Thus, because Garden used
fraudulent means to obtain McCalep’s signature on the Quitclaim Deed,
Garden’s conduct falls within the purview of the forgery statute. The evidence,
therefore, is sufficient to sustain Garden’s conviction under Count Eleven.
B. Facts and Analysis Relating to Counts Fifteen and Sixteen [16] In 1996, Anthony Pope purchased a home located at 2467 Finley Avenue in
Indianapolis (the “Finley property”). Garden had assisted Pope in purchasing
the Finley property, so Pope decided to talk to Garden when he decided to sell
the property in 2012. Pope indicated that he wanted to sell the Finley property
and did not want to lease it out. Garden gave Pope four documents to sign but
did not explain what any of the documents were. Pope did not inquire about
the documents because he “went to [Garden] in trust” based on their prior
relationship. Tr. Vol. II, p. 500. Pope understood that he “had papers to sign”
so he signed the papers that Garden “put in front of [him].” Tr. Vol. II, p. 500.
Pope ultimately signed the following documents at Garden’s direction: (1) a
Quitclaim Deed indicating that the Finley property was being sold to Garden
for $1.00 in consideration, (2) a Listing Contract granting Garden the exclusive Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 9 of 20 right to sell the Finley property, (3) a Purchase agreement indicating that the
property would be sold to April Brooks and Gary Jones Jr. for $44,900.00 with
$1.00 in earnest money, and (4) a Short Sale Addendum to the Listing Contact.
Garden did not give Pope any money in connection to the Finley property.
[17] Following the execution of these documents, Pope learned that someone was
living at the Finley property. Pope drove past the property and observed
damage to the garage door and a window. When Pope questioned Garden
about this fact, Garden indicated that he had buyers lined up and that the
persons living at the Finley property were the persons who were going to
purchase it. Pope indicated that he felt that he had been “misled” because he
was not aware that anybody was going to be living in the house prior to the sale
of the property but rather believed “it was going to be a shut and cold, you
know, buy and sell” arrangement. Tr. Vol. III, p. 505. Garden ended the
conversation and would not engage in future conversations with Pope.
[18] Pope eventually regained possession of the Finley property after going “through
the court” system. Tr. Vol. III, p. 506. Upon regaining possession, Pope
observed that the Finley property “was destroyed.” Tr. Vol. III, p. 506. Pope
ultimately repaired and sold the Finley property.
[19] Around the time that Pope approached Garden about selling the Finley
property, Gary Jones and his wife April Brooks spoke to Garden about entering
into a rent- or lease-to-own agreement. Garden suggested that Jones and
Brooks “check out” the Finley property, after which Jones and Brooks signed a
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 10 of 20 Lease with Option to Purchase. Tr. Vol. III, p. 515. Pope neither (1) saw or
signed the Lease with Option to Purchase that Jones and Brooks signed in
relation to the Finley property nor (2) gave Garden permission to have anyone
sign the documents in relation to the Finley property.
[20] After signing the lease document, Jones and Brooks paid a $1200.00 down
payment to Garden. They lived at the Finley property for about a year.
However, Jones and Brooks vacated the property when a law enforcement
officer “showed up at the house with paperwork stating that [Pope] owned it.”
Tr. Vol. III, p. 520.
[21] The State subsequently alleged that Garden “on or about July 11, 2012, did,
with intent to defraud, make a written instrument, that is: a document entitled
Quitclaim Deed … in such a manner that said instrument purported to have
been made by the authority of Anthony Pope, who did not give authority[.]”
Appellant’s App. Vol. II, pp. 110. The State also alleged that Garden “on or
about September 29, 2012, did, with intent to defraud, utter to April Brooks
and/or Gary Jones a written instrument, that is: a document entitled Lease
with Option to Purchase … in such a manner that said instrument purported to
have been made by the authority of Anthony Pope, who did not give
authority[.]” Appellant’s App. Vol. II, p. 111. Following trial, the jury found
that the evidence was sufficient to prove the allegations set forth above.
[22] Review of the record reveals that Garden obtained Pope’s signature on the
quitclaim deed through fraud. Garden obtained Pope’s signature on the deed
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 11 of 20 under the pretense that he was going to sell the Finley property for Pope—
which was the only authority that Pope understood himself to be granting to
Garden by signing the document. Pope neither understood that he was signing
a document which would transfer his ownership of the property nor did he
intend to do so.
[23] By deceiving Pope in this way, Garden made the Quitclaim Deed appear to be
something which it was not. Again, the Indiana Supreme Court has held that
forgery “includes every act which fraudulently makes an instrument appear
what it is not.” Jordan, 502 N.E.2d at 913. Thus, because Garden used
fraudulent means to obtain Pope’s signature on the Quitclaim Deed, Garden’s
conduct falls within the purview of the forgery statute. The evidence, therefore,
is sufficient to sustain Garden’s conviction under Count Fifteen.
[24] Review of the record also reveals that Garden fraudulently executed a
document entitled Lease with Option to Purchase for the Finley property with
Jones and Brooks. This document stated that Jones and Brooks shall have an
option to purchase the Finley property from Garden at any time during the
term of the lease. Pope, the true owner of the property, was neither aware of
nor consented to this lease. Likewise, Pope had not knowingly given Garden
the authority to lease the Finley property. Jones and Brooks were forced to
vacate the Finley property after Pope became aware of the lease agreement and
asserted his legal right to the property.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 12 of 20 [25] Garden led Jones and Brooks to believe that they had both a valid lease and a
valid option to purchase the Finley property. By deceiving Jones and Brooks in
this way, Garden made the lease agreement appear to be something it was not.
Again, forgery “includes every act which fraudulently makes an instrument
appear what it is not.” Id. Thus, because Garden used fraudulent means to
convince Jones and Brooks to enter into the lease agreement, Garden’s conduct
falls within the purview of the forgery statute. The evidence, therefore, is
sufficient to sustain Garden’s conviction under Count Sixteen.
C. Facts and Analysis Relating to Counts Six and Eighteen [26] Donald and Bertha Shackelford owned a home located at 5343 South Linwood
Avenue in Indianapolis (the “Linwood property”). Donald retained the
Linwood property after he and Bertha divorced. Donald subsequently filed
bankruptcy after which he approached Garden about selling the home in the
hopes of preventing the Linwood property from being sold at a sheriff’s sale.
Donald specifically told Garden that he did not want the Linwood property
rented, but rather wanted it sold.
[27] Garden gave Donald a number of documents to sign but did not explain what
any of the documents were. Donald ultimately signed the following documents
at Garden’s direction: (1) a Quitclaim Deed indicating that the Linwood
property was being sold to Garden for $1000.00 in consideration, (2) a Limited
Power of Attorney, and (3) a Listing Contract granting Garden the exclusive
right to sell the Finley property. Garden did not explain to Donald what either
the Quitclaim Deed or the Limited Power of Attorney forms were. Donald was Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 13 of 20 told only that the Limited Power Attorney form “was just needed to help.” Tr.
Vol. I, p. 190. Donald also understood that the Listing Contract enabled
Garden to assist Donald in selling the Linwood property. Garden led Donald
to believe that the forms were needed “[t]o expedite a deal with an investment
group” and to “sell the house.” Tr. Vol. I, p. 189.
[28] Following the execution of these documents, Donald learned that someone was
living at the Linwood property. Donald learned that the individual was
“buying it on contract” from Garden. Tr. Vol. I, p. 193. Donald did not know
about this arrangement, had not given Garden permission to “put anybody in
[his] house[,]” and had not signed any documentation relating to the alleged
purchase agreement. Tr. Vol. I, p. 194. Donald’s attempts to communicate
with Garden about the alleged purchase agreement were unsuccessful as
Garden would not answer Donald’s phone calls or respond to Donald’s emails.
Eventually, this purchase agreement fell through and the original tenants
moved out of the Linwood property.
[29] Some time later, after Jones and Brooks were told by law enforcement officers
that they had to vacate the Finley property, Garden told Jones and Brooks that
he would get them into another home. Garden showed Jones and Brooks the
Linwood property after which the couple signed a document entitled
“Agreement to Sell Real Estate.” State’s Ex. 8. This document was dated July
7, 2013, and listed the seller of the property as Garden’s company, Five Star
Homes.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 14 of 20 [30] Garden assured Jones and Brooks that he was the owner of and had the deed to
the Linwood property. Jones and Brooks relied on Garden’s assurances.
However, despite living at the Linwood property for nearly a year, the purchase
agreement fell through and Jones and Brooks were ultimately forced to move
out of the Linwood property after learning that Garden did not own the
property. All told, Jones and Brooks paid Garden approximately $10,000.00
over the course of the time that they lived in the Finley and Linwood
properties.
[31] The State subsequently alleged that Garden “on or about October 14, 2010, did,
with intent to defraud, make a written instrument, that is: a document entitled
Quitclaim Deed … in such a manner that said instrument purported to have
been made by the authority of Donald Shackelford, who did not give
authority[.]” Appellant’s App. Vol. II, p. 106. The State also alleged that
Garden “on or about July 7, 2013, did, with intent to defraud, utter to April
Brooks and/or Gary Jones a written instrument, that is: a document entitled
Agreement to Sell Real Estate with the property identified as 5343 South
Linwood … in such a manner that said instrument purported to have been
made by the authority of Donald Shackelford, who did not give authority[.]”
Appellant’s App. Vol. II, p. 112. Following trial, the jury found that the
evidence was sufficient to prove the allegations set forth above.
[32] Review of the record reveals that Garden obtained Donald’s signature on the
quitclaim deed through fraud. Garden obtained Donald’s signature on the deed
under the pretense that he was going to sell the Linwood property for Donald—
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 15 of 20 which was the only authority that Donald understood himself to be granting to
Garden by signing the document. Donald neither understood that he was
signing a document which would transfer his ownership of the property nor did
he intend to do so.
[33] By deceiving Donald in this way, Garden made the Quitclaim Deed appear to
be something which it was not. Again, the Indiana Supreme Court has held
that forgery “includes every act which fraudulently makes an instrument appear
what it is not.” Jordan, 502 N.E.2d at 913. Thus, because Garden used
fraudulent means to obtain Donald’s signature on the Quitclaim Deed,
Garden’s conduct falls within the purview of the forgery statute. The evidence,
therefore, is sufficient to sustain Garden’s conviction under Count Six.
[34] Review of the record also reveals that Garden fraudulently executed a
document entitled Agreement to Sell Real Estate for the Linwood property with
Jones and Brooks. This document stated that Garden, through his company
Star Homes was the seller of the Linwood property. The document further
stated that Garden held marketable title of the Linwood property, and Garden
assured Jones and Brooks that he was the owner of and held the deed to the
Linwood property. Donald, the true owner of the property, was neither aware
of nor consented to this agreement. As was the case with the Finley property,
Jones and Brooks were forced to vacate the Linwood property after they
learned that Donald, and not Garden, was the rightful owner of the Linwood
property.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 16 of 20 [35] Garden led Jones and Brooks to believe that they had a valid purchase
agreement for the Linwood property. By deceiving Jones and Brooks in this
way, Garden made the agreement appear to be something it was not. Again,
forgery “includes every act which fraudulently makes an instrument appear
what it is not.” Id. Thus, because Garden used fraudulent means to convince
Jones and Brooks to enter into the agreement, Garden’s conduct falls within the
purview of the forgery statute. The evidence, therefore, is sufficient to sustain
Garden’s conviction under Count Eighteen.
D. Facts and Analysis Relating to Count Twenty-Four [36] In the Spring of 2014, Garden owned a home located at 2801 Lockburn Street
in Indianapolis (the “Lockburn property”). Amy Jones, in her role as a
supervising attorney for the Health and Hospital Corporation of Marion
County (“HHCMC”), filed an “Emergency Cause of Action for issues of
habitability inside” the Lockburn property. Tr. Vol. III, p. 686. On April 10,
2014, Garden entered into an agreed entry with HHCMC in which the parties
agreed that the Lockburn property would “be vacant and remain vacant until
such a time as all utilities are restored by approved means and verified by [an
Environmental Health Specialist].” State’s Ex. 91. Pursuant to the agreed
entry, the Lockburn property was to remain vacant at least until a hearing on
May 15, 2014.
[37] Also in the spring of 2014, Dustin Barnes and his girlfriend, Star McKinney,
were looking for a residence to rent in Indianapolis. Barnes and McKinney
came into contact with Garden after seeing “an ad in the newspaper he had for Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 17 of 20 a house for rent.” Tr. Vol. III, p. 737. Garden offered to rent them the
Lockburn property. Before deciding whether to rent the Lockburn property
from Garden, Barnes went to look at the Lockburn property. When Barnes
went to look at the Lockburn property, he observed persons living in the house.
Barnes had been told that if he encountered anyone at the Lockburn property,
he should say that he “was a maintenance guy and … was coming in to look at
the house for maintenance.” Tr. Vol. III, p. 726. The Lockburn property had
several maintenance issues that needed to be addressed, but Barnes felt he was
capable of making the necessary improvements given his background in
construction.
[38] Two weeks later, Barnes and McKinney entered into a lease agreement for the
Lockburn property. Barnes and McKinney paid Garden a $800.00 down
payment. Garden, however, did not inform Barnes and McKinney of the
agreed entry with HHCMC.
[39] When Barnes and McKinney went to look at the Lockburn property prior to
moving in, they observed that numerous items were missing from the house.
They also observed toilets, tubs, sinks, and buckets, all full of feces. Given the
state of the Lockburn property, Barnes and McKinney ultimately decided not to
move in to the home because it was not suitable for their asthmatic children to
live in. Barnes requested that Garden return his $800.00 deposit, but Garden
refused. Garden threatened to called the police on Barnes and “tried to order
[Barnes] to move into the house.” Tr. Vol. III, p. 732.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 18 of 20 [40] The State subsequently alleged that Garden “on or about April 27, 2014, did,
with intent to defraud, utter to Star McKinney and/or Dustin Barnes a written
instrument, that is: a document entitled Residential Lease Agreement … in
such a manner that said instrument purported to have been made by the
authority of the City of Indianapolis, Health and Hospital Division and/or the
Marion Superior Court, Room 12, who did not give authority[.]” Appellant’s
App. Vol. II, p. 114. Following trial, the jury found that the evidence was
sufficient to prove the allegations set forth above.
[41] Review of the record reveals that Garden acted with an intent to deceive Barnes
and McKinney when he fraudulently entered into a lease agreement for the
Lockburn property. Garden knew that the Lockburn property was
uninhabitable when he entered into the lease agreement as is evidenced by the
fact that he had entered into an agreed entry with HHCMC which stated that
the Lockburn property was uninhabitable and was to remain vacant at least
until a hearing on May 15, 2014.
[42] By deceiving Barnes and McKinney in this way, Garden made the agreement
appear to be something it was not. As has been stated a number of times above,
the Indiana Supreme Court has held that forgery “includes every act which
fraudulently makes an instrument appear what it is not.” Jordan, 502 N.E.2d at
913. Thus, because Garden used fraudulent means to convince Barnes and
McKinney to enter into the agreement, Garden’s conduct falls within the
purview of the forgery statute. The evidence, therefore, is sufficient to sustain
Garden’s conviction under Count Twenty-four.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 19 of 20 Conclusion [43] In sum, we conclude that the evidence is sufficient to sustain the challenged
convictions. As such, we affirm the judgment of the trial court.
[44] The judgment of the trial court is affirmed.
Najam, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017 Page 20 of 20