MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded as Apr 04 2017, 8:24 am precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK Indiana Supreme Court collateral estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paula M. Sauer Curtis T. Hill, Jr. Danville, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Natividad Perez-Mendoza, April 4, 2017
Appellant-Defendant, Court of Appeals Cause No. 32A01-1609-CR-2128 v. Appeal from the Hendricks Circuit Court State of Indiana, The Honorable Daniel F. Zielinski, Judge Appellee-Plaintiff. Trial Court Cause No. 32C01-1503- F6-229
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 1 of 16 STATEMENT OF THE CASE [1] Appellant-Defendant, Natividad Perez-Mendoza (Perez-Mendoza), appeals her
conviction for three Counts of identity deception, Class D felonies, Ind. Code §
35-43-5-3.5(a) (2014); and one Count of identity deception, a Level 6 felony,
I.C.§ 35-43-5-3.5(a).
[2] We affirm in part, reverse in part, and remand with instructions.
ISSUES [3] Perez-Mendoza presents two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion by admitting Perez-Mendoza’s
employment records under the business record exception; and
(2) Whether Perez-Mendoza’s four Counts of identity deception violated the
prohibition against double jeopardy under the Indiana Constitution.
FACTS AND PROCEDURAL HISTORY [4] Sometime in 2011, Lisa Dumais (Dumais), formally known as Lisa Whitaker, a
resident of Cleveland, Ohio, had her wallet stolen. Dumais’ wallet contained
her Social Security card and driver’s license as well as her debit and credit
cards. In 2014, the United States Internal Revenue Service (IRS) wrote to
Dumais accusing her of owing $3,315.49 in taxes for failing to report income
from Electronic Recyclers in Plainfield, Indiana. Dumais filed a police report
in Ohio.
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 2 of 16 [5] Sometime in March of 2015, the Plainfield Police Department received an
email from “an outside agency out of Ohio” stating that Dumais’ Social
Security Number (SSN) had being utilized by an individual at Electronic
Recyclers in Plainfield. Detective Ryan Bugler (Detective Bugler), who was
assigned to the case, visited Electronic Recyclers and spoke with the human
resources department. After going through its records, the human resources
department confirmed Dumais’ SSN had been used by Perez-Mendoza. Perez-
Mendoza was cooperative, and she accompanied Detective Bugler to the police
station. After Perez-Mendoza was Mirandrized and a Spanish interpreter was
present in the room, Perez-Mendoza stated that in 2012, being out of a job and
having three children to support in Mexico, she was approached by a woman
who identified herself as Lisa Whitaker, and the woman offered her a Social
Security card and driver’s license to help her find employment. Perez-Mendoza
admitted that she used Dumais’ name and SSN to obtain employment at
Electronic Recyclers. Perez-Mendoza also stated that she did not know it was
illegal to obtain employment using false identification.
[6] On March 26, 2015, the State filed an Information, charging Perez-Mendoza
with Counts I-III, identity deception, Class D felonies, I.C. § 35-43-5-3.5(a)
(2014), and Count IV, identity deception, a Level 6 felony, I.C. § 35-43-5-3.5(a).
Shortly before her jury trial, Perez-Mendoza filed a motion to dismiss Counts
II, III, and IV, pursuant to the double jeopardy clause under the Indiana
Constitution. The trial court did not make a ruling on that motion and the
matter proceeded to trial. During her trial on July 26, 2016, over Perez-
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 3 of 16 Mendoza’s counsel’s objection, the trial court admitted State’s Exhibit 1, which
mostly consisted of Perez-Mendoza’s employment records from Electronic
Recyclers, under the business records exception. Perez-Mendoza also renewed
her motion to dismiss Counts II through IV under the double jeopardy
prohibition, but was denied. At the close of the evidence, the trial court found
Perez-Mendoza guilty as charged. On August 22, 2016, the trial court held
Perez-Mendoza’s sentencing hearing. The trial court entered a judgement of
conviction on all four Counts. Subsequently, the trial court merged Counts II,
III, and IV into Count I; however, it sentenced Perez-Mendoza to concurrent
sentences of one year to each Count in the Hendricks County Jail.
[7] Perez-Mendoza now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Admission of State’s Exhibit 1
[8] Perez-Mendoza first argues that the State’s Exhibit 1, which consisted of her
employment records from Electronic Recyclers, did not qualify for admission
under the business records exception and should have been excluded from the
evidence. It is well established that the trial court has broad discretion in ruling
on the admissibility of evidence, and, on review, we will disturb its ruling only
on a showing of abuse of discretion. Sparkman v. State, 722 N.E.2d 1259, 1262
(Ind. Ct. App. 2000). When reviewing a decision under an abuse of discretion
standard, we will affirm if there is any evidence supporting the decision. Id. A
claim of error in the admission or exclusion of evidence will not prevail on
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 4 of 16 appeal unless a substantial right of the party is affected. Ind. Evidence Rule
103(a). In determining whether error in the introduction of evidence affected a
defendant’s substantial rights, we assess the probable impact of the evidence on
the jury. Sparkman, 722 N.E.2d at 1262.
[9] As noted, Perez-Mendoza used Dumais’ identity to obtain employment, and
the State’s Exhibit 1 was a seventy-six-page document from Electronic
Recyclers which included Perez-Mendoza’s employment application, offer
letter, copies of timecards, checks and pay stubs, performance evaluation, a
notice of pay increase, a direct deposit form, various tax and investment forms,
as well as Dumais’ identification card and Social Security card. When the State
offered Exhibit 1 for admission, Perez-Mendoza objected by contending that it
was not properly authenticated under the business records exception. In
response, the State argued, “[T]here’s what’s called a business record affidavit.
It is signed by the record keeper of the corporation that holds and creates this
record. It is notarized. It is from California. It is the authentication that shows
that these are actual records kept in the ordinary course of Electronic Recycler’s
business.” (Tr. p. 139). Based on the State’s argument, the trial court admitted
State’s Exhibit 1 and stated:
Uh Ladies and Gentlemen, um when you have documents brought in you can’t just say hey, I want to give this document. It has to be some sort of authentication that can be by the person saying yes, that’s my document that I prepared, or it can be done by affidavit. And the affidavit has to say something like, this is a true and accurate copy of what’s in our business records. That meets uh Rule 803[(6)]. There is an affidavit. It is properly authenticated. Objection overruled.
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 5 of 16 (Tr. pp. 139-140). On appeal, Perez-Mendoza maintains that the certificate
attached to the State’s Exhibit 1, did not “meet the requirements of Rule 803(6)
(A)-(C).” (Appellant’s Br. p. 21). Perez-Mendoza also asserts that the
certificate was not signed under the penalty of perjury. In addition, she
contends that “the certificate did not set forth the qualifications of the purported
custodian or [an]other qualified custodian.” (Appellant’s Br. p. 21).
[10] The reliability of business records stems from the fact that the organization
depends on them to operate, from the sense that they are subject to review,
audit, or internal checks, from the precision engendered by the repetition, and
from the fact that the person furnishing the information has a duty to do it
correctly. Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997). Therefore, the
proponent of a business record can satisfy the requirements of Evidence Rule
803(6) by calling a witness who has a functional understanding of the record
keeping process of the business with respect to the specific entry, transaction, or
declaration contained in the document.” Rolland v. State, 851 N.E.2d 1042,
1045 (Ind. Ct. App. 2006). “The witness need not have personally made or
filed the record or have firsthand knowledge of the transaction represented by it
in order to sponsor the exhibit.” Id. Moreover, a sponsoring witness is not
required to testify that she knows the person who recorded the information had
personal knowledge of the transactions. Payne v. State, 658 N.E.2d 635, 645
(Ind. Ct. App. 1995), trans. denied. Records kept in the regular course of
business are presumed to have been created by someone with knowledge, unless
there is a showing to the contrary. Id.
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 6 of 16 [11] In the instant case, the State did not offer the testimony of a custodian or other
qualified witness to testify with respect to State’s Exhibit 1; therefore, to be
admissible, State’s Exhibit 1 must have been accompanied by a certification
that complies with Evidence Rule 902(11), which provides that, “[u]nless the
source of information or the circumstances of preparation indicate a lack of
trustworthiness, the original or a copy of a domestic record that meets the
requirements of Rule 803(6)(A)–(C), as shown by a certification under oath of
the custodian or another qualified person,” is self-authenticating and requires
no extrinsic evidence of authenticity to be admissible. Here, the State’s exhibit
was accompanied by the following certificate:
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 7 of 16 [12] (State’s Exh. 1). The State agrees with Perez-Mendoza that the certificate in
question did not show that the requirements of Rule 803(6)(A)–(C), were met.
Specifically, the affiant in this case, Carol DeBillis, did not state that she is the
keeper of the employment records for Electronic Recyclers, nor did she aver
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 8 of 16 that records contained in the exhibit were made regularly in the Electronic
Recyclers’ business, or that she has personal knowledge of the records.
[13] We agree with Perez-Mendoza’s contention that the certificate in question falls
short of the requirements of Evidence Rule 803(6)(A)-(C)—i.e., it fails to show
whether the record was made at or near the time by someone with knowledge,
it also fails to show that the record was kept in Electronic Recyclers’ regular
course of business, and it failed to aver that it is in Electronic Recyclers’ regular
practice to make the record. Because the admission of State’s Exhibit 1 lacked
a proper foundation to establish it as a business record, it should not have been
admitted over Perez-Mendoza’s objection, and we must determine if the error
was harmless.
[14] When a trial court abuses its discretion in the admission of evidence, we will
reverse only if the error is inconsistent with substantial justice or affects the
substantial rights of a party. See Ind. Trial Rule 61; Pitts v. State, 904 N.E.2d
313, 318 (Ind. Ct. App. 2009), trans. denied. In viewing the effect on a
defendant’s substantial rights, we look to the probable impact on the factfinder.
Pitts, 904 N.E.2d at 318. “The improper admission of evidence is harmless
error when the conviction is supported by substantial independent evidence of
guilt as to satisfy the reviewing court that there is no substantial likelihood that
the questioned evidence contributed to the conviction.” Lafayette v. State, 917
N.E.2d 660, 666 (Ind. 2009). “Reversal may be compelled if the record as a
whole discloses that the erroneously admitted evidence was likely to have had a
prejudicial impact on the fact-finder, thereby contributing to the judgment.”
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 9 of 16 Ground v. State, 702 N.E.2d 728, 732 (Ind. Ct. App. 1998). “To determine
whether the erroneous admission of irrelevant and prejudicial evidence . . . is
harmless, we judge whether the jury’s verdict was substantially swayed. If the
error had substantial influence, or if one is left in grave doubt, the conviction
cannot stand.” Lafayette v. State, 917 N.E.2d 660, 666-67 (Ind. 2009) (citation
and internal quotation marks omitted).
[15] In her appellate brief, Perez-Mendoza argues that her case is analogous to
Ground, 702 N.E.2d at 729, whereby we reversed the defendant’s convictions
for forgery and theft due to the erroneous admission of improper evidence. In
Ground, the defendant was working part-time at Employability Services, and as
part of her job, the defendant frequently wrote checks and presented them to the
owner of the company, Judith Woods, for her signature. Id. In August of 1996,
Woods noticed that the bookkeeping was not current and that checks were
missing from the company’s check book. Id. Woods subsequently received a
bank statement which indicated that a number of unauthorized and unrecorded
checks had been written on the company’s account. Id. Woods then conducted
an audit and obtained microfilm copies of the checks from the bank. Id. In
total, twenty-two unauthorized checks had been written between May and
October of 1996. Id. Over the defendant’s objection, the trial court admitted
State’s Exhibit 1, which contained certain bank records from the defendant’s
account at National City Bank, including a copy of the defendant’s signature
card from her savings account and microfilm copies of a deposit slip from the
defendant’s checking account, a cashout slip in the amount of $400.00, a
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 10 of 16 $975.00 unauthorized check paid by Employability Services to the defendant,
and three checks paid to the defendant from other payors. Id. at 730. In
support of Exhibit 1, the State presented an affidavit by Michael Guio, a fraud
investigation manager with National City Bank, swearing that the documents
contained in State’s Exhibit 1 were true and accurate documents kept in
National City Bank’s ordinary course of business. Id. The trial court admitted
it into evidence, and at the close of the defendant’s bench trial, the defendant
was found guilty as charged. Id. On appeal, the defendant argued that the
admission of the bank records under the business records exception was a
reversible error. Id. The defendant contended and the State agreed, that the
affidavit of the fraud investigator was insufficient in two respects: (1) it failed to
aver that the records were transmitted by a person with personal knowledge; (2)
it failed to aver that it is National City Bank’s regular practice to make the
records. Id. at 731. On the first deficiency, we concluded that the Rules of
Evidence permit a rebuttable presumption that the business records are made by
someone who had personal knowledge, as such, we conduced that the
defendant had failed to rebut that presumption. Id. On the second deficiency,
however, we concluded that without proof that the bank records are regularly
made, the State had not laid a proper foundation for the exhibit under the plain
meaning of Rule 803(6). Id. Accordingly, we concluded that the trial court
erred in admitting the records. Id. That said, we additionally found that
erroneous admission of the exhibit in Ground, was not harmless. Id. at 732. As
such, we concluded that the State’s repeated references to the exhibit impacted
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 11 of 16 the judgement of the fact-finder. Id. Accordingly, we reversed the defendant’s
convictions. Id.
[16] Here, unlike Ground, the State presented other evidence apart from the
challenged employment records contained in State’s Exhibit 1—i.e., testimonies
from Detective Bugler and Perez-Mendoza. At trial, Detective Bugler testified
that when he interviewed Perez-Mendoza, she stated that she was born in
Mexico and when she moved to the United States, she “didn’t have the right
paperwork to gain employment.” (Tr. p. 151). Detective Bugler added that
Perez-Mendoza advised him that in 2012, she was unemployed and that a lady,
who identified herself as Lisa Whitaker, approached her and helped her obtain
identification documents. Perez-Mendoza also reiterated that by using Lisa
Whitaker’s ID, she was able find a paying job. Perez-Mendoza added that
while working at Electronic Recyclers, she “pretended to be Lisa Whitaker.”
(Tr. p. 205).
[17] “The improper admission of evidence is harmless error when the reviewing
court is satisfied that the conviction is supported by substantial independent
evidence of guilt so that there is no substantial likelihood that the challenged
evidence contributed to the conviction.” Meadows v. State, 785 N.E.2d 1112,
1121 (Ind. Ct. App. 2003), trans. denied. Because the fact-finder in the instant
case was presented with other evidence showing that Perez-Mendoza, using
Dumais’ stolen identification documents, posed as Lisa Whitaker to obtain
employment at Electronic Recyclers, any error in the admission of the State’s
Exhibit 1 was harmless.
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 12 of 16 II. Double Jeopardy
[18] Finally, Perez-Mendoza argues that her four convictions of identity deception
are barred by constitutional protections against double jeopardy clause of the
Indiana Constitution, article 1, § 14. She contends all but one of the
convictions must be vacated. The State counters that Perez-Mendoza was not
subjected to double jeopardy because the trial court merged Counts II, III, and
IV to Count I, and did not impose any sentences on Counts II through IV. We
disagree.
[19] The Indiana Constitution provides that “[n]o person shall be put in jeopardy
twice for the same offense.” IND. CONST. art. 1, § 14. “Indiana’s Double
Jeopardy Clause . . . prevent[s] the State from being able to proceed against a
person twice for the same criminal transgression.” Hopkins v. State, 759 N.E.2d
633, 639 (Ind. 2001) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.
1999)). The Indiana Supreme Court has held that “two or more offenses are the
‘same offense’ in violation of Article I, 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.” Richardson,
717 N.E.2d at 49.
[20] “An offense is the same as another under the actual evidence test when there is
a reasonable possibility that the evidence used by the fact-finder to establish the
essential elements of one offense may have been used to establish the essential
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 13 of 16 elements of a second challenged offense.” Id. The Indiana Supreme Court
clarified this test in Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002), where the
court held that the test is not whether the evidentiary facts used to establish one
of the essential elements of one offense may also have been used to establish
one of the essential elements of a second challenged offense; rather, the test is
whether the evidentiary facts establishing the essential elements of one offense
also establish all of the elements of a second offense. If the evidentiary facts
establishing one offense establish only one or several, but not all, of the essential
elements of the second offense, there is no double jeopardy violation. Id.
[21] In this case, the State’s evidence established that in 2012, Perez-Mendoza, using
Dumais’ Social Security card and identification card, applied for a job through
a staffing agency in Plainfield, Indiana and was assigned to work with
Electronic Recyclers. From May of 2012 until January of 2015, Perez-
Mendoza received paychecks under Lisa Whitaker’s name. The charging
Information shows that the State charged Perez-Mendoza with four Counts of
identity deception for each year she worked at Electronic Recyclers using
Dumais’ identity. Here, after the jury trial, Perez-Mendoza was found guilty as
charged. At the close of the sentencing hearing, the trial court stated as follows:
[Perez-Mendoza], you have been found guilty by a jury of your peers of three [C]ounts of identity deception as [] [C]lass D felon[ies] and one [C]ount as a [L]evel 6 felony. The maximum penalty for a D felony is three years, the minimum is six months. The maximum for a L[evel] 6 [felony] is two and a half years and the minimum is six months . . . . I’m going to, again we’ve already entered judgment, but I’m going to merge all four of those [C]ounts into a [C]lass D felony . . . I’m going to sentence you on each. . . on [C]ount one, I’m going to sentence you to one year [in] Hendricks County Jail[;]
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 14 of 16 [C]ount two, one year [in] Hendricks County Jail [;] [C]ount three, one year [in] Hendricks County Jail[;] [C]ount four, one year [in] Hendricks County Jail. Again all those are merged, give you credit for fifty eight actual 20 days plus fifty eight, suspend the reminder of the time on to probation.
(Tr. Vol. II, pp. 52-53). The trial court’s written Judgement of Conviction and
Sentencing Order mirrored the oral sentencing statement. Specifically, the
order shows a judgement of conviction for all four Counts of identity deception;
but, in the sentencing section, the trial court merges Counts II, III, and IV to
Count I, and Perez-Mendoza is only sentenced with respect to Count I.
However, the Abstract of Judgement reflects something different. In part one,
the trial court lists the “DISPOSITION” for Count I as “Finding of Guilty,”
and Counts II through IV as “Conviction Merged.” (Appellant’s App. Vol. II,
p. 174). Then, below, the court enters a single sentence of 116 days executed
and 249 days suspended to probation.
[22] Here, we find that the trial court’s act of merging, without also vacating Perez-
Mendoza’s Counts II, III, and IV convictions, is not sufficient to cure a double
jeopardy violation. In Green v. State, 856 N.E.2d 703, 704 (Ind. 2006), our
Supreme Court held that “a merged offense for which a defendant is found
guilty, but on which there is neither a judgment nor a sentence, is
‘unproblematic’ as far as double jeopardy is concerned.” The facts before us are
distinguishable from Green because the trial court entered judgment on all
Counts of identity deception. The act of merging the previously entered
judgments at the sentencing hearing did not cure the double jeopardy violation.
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 15 of 16 [23] As noted, a double jeopardy violation occurs when judgments of conviction are
entered and cannot be remedied by the “practical effect” of concurrent
sentences or by merger after conviction has been entered. Morrison v. State, 824
N.E.2d 734, 741-42 (Ind. Ct. App. 2005), trans. denied. The trial court’s oral
and written sentencing order reflect judgments of conviction on all four Counts
of identity deception against Perez-Mendoza, yet it chose to “merge” the
sentences rather than vacating her convictions for Counts II though IV.
Accordingly, we remand this cause to the trial court with an order to vacate
Perez-Mendoza’s Counts II, III, and IV convictions for identity deception. In
addition, we also order the amendment of the trial court’s Judgment of
Conviction and Sentencing Order to reflect conviction of only Count I and to
send the amended documents to the Department of Correction.
CONCLUSION [24] In sum, we conclude that the trial court committed a harmless error in
admitting State’s Exhibit 1. Nonetheless, because Perez-Mendoza’s convictions
with respect to Counts II, III, and IV constitute double jeopardy, we remand to
the trial court with an order to vacate those three convictions.
[25] Affirmed in part, reversed in part, and remanded with instructions.
[26] Crone, J. and Altice, J. concur.
Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017 Page 16 of 16