Wendell Brown v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 29, 2017
• Docket: 49A04-1507-CR-928
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jun 29 2017, 8:52 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Wendell Brown Curtis T. Hill, Jr. Greencastle, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Wendell Brown, June 29, 2017

Appellant-Defendant, Court of Appeals Case No. 49A04-1507-CR-928 v. Appeal from the Marion Superior Court. The Honorable Lisa F. Borges, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 49G04-1502-F5-3976

Barteau, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 1 of 13 Statement of the Case [1] Wendell Brown appeals his conviction of attempted fraud on a financial 1 institution, a Level 5 felony. We affirm.

Issues [2] Brown presents four issues for our review, which we restate as:

I. Whether the trial court had jurisdiction. II. Whether the charging information was defective. III. Whether the evidence was sufficient to support Brown’s conviction. IV. Whether the trial court committed fundamental error.

Facts and Procedural History [3] In December 2014, Brown purchased a car from a car dealership in Marion

County with a cashier’s check. Shortly thereafter, a bank employee informed

the car dealership that Brown’s check was not valid. Based upon this incident,

the State charged Brown with attempted fraud on a financial institution, a Level

5 felony; two counts of forgery, both Level 6 felonies; and auto theft, a Level 6

felony.

[4] A bench trial was held on May 26, 2015, and Brown was found guilty as

charged. At sentencing, the trial court entered judgment of conviction only on

1 Ind. Code §§ 35-43-5-8 (2014); 35-41-5-1 (2014).

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 2 of 13 the offense of attempted fraud on a financial institution, sentenced Brown to

five years, and ordered the sentence to run consecutively to his sentences in

other causes. Brown now appeals.

Discussion and Decision I. Jurisdiction [5] Brown first contends that the trial court lacked jurisdiction. Indiana courts

must possess two kinds of jurisdiction to adjudicate a case: subject matter and

personal. Taylor-Bey v. State, 53 N.E.3d 1230, 1231 (Ind. Ct. App. 2016).

Subject matter jurisdiction is the power of a court to hear and determine cases

of the general class to which a particular proceeding belongs. Id. Personal

jurisdiction is the power of a court to bring a person into its adjudicative process

and render a valid judgment over that person, and it requires effective service of

process over the parties. Johnson v. State, 957 N.E.2d 660, 662 (Ind. Ct. App.

2011).

[6] As to subject matter jurisdiction, Indiana courts obtain this jurisdiction through

the Indiana Constitution or a statute. Taylor-Bey, 53 N.E.3d at 1231. Indiana

Code section 33-29-1.5-2(1) (2011) provides that all superior courts of this state

have original jurisdiction in all criminal cases. In addition, criminal

proceedings are, generally, to be tried in the county where the offense was

committed. See Ind. Code § 35-32-2-1(a) (2005). The offenses involved in this

case occurred in Marion County, and Brown was charged and tried in superior

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 3 of 13 court in Marion County. Accordingly, the trial court had subject matter

jurisdiction over Brown’s case.

[7] With regard to personal jurisdiction, Brown argues that the trial court did not

have jurisdiction over him solely on the ground that he is an “Aboriginal and

Indigenous Moorish American National” and thus neither a citizen of the

United States nor of the State of Indiana. Appellant’s Br. p. 11. However, the

Fourteenth Amendment provides that “[a]ll persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside.” U.S. CONST. art. XIV, § 1.

Moreover, personal jurisdiction does not require the defendant to be a United

States citizen. Taylor-Bey, 53 N.E.3d at 1232 (determining that county superior

court had personal jurisdiction over defendant despite his contention that he

was not United States citizen but was Moorish American National). The trial

court had personal jurisdiction over Brown.

II. Charging Information [8] Brown next asserts, essentially, that the trial court erred in denying his motion

to dismiss the charging information. In support of this claim, Brown argues

that the information was defective because it did not state to whom he

presented the check and that, as a result, he “had to guess who the check was

supposed to have been presented to.” Appellant’s Br. p. 14.

[9] A trial court’s denial of a motion to dismiss is reviewed only for an abuse of

discretion. Study v. State, 24 N.E.3d 947, 950 (Ind. 2015), cert. denied, 136 S. Ct.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 4 of 13 412, 193 L. Ed. 2d 325 (2015). An abuse of discretion occurs when the decision

is clearly against the logic and effect of the facts and circumstances before the

court, or when the trial court has misinterpreted the law. Estrada v. State, 969

N.E.2d 1032, 1038 (Ind. Ct. App. 2012), trans. denied.

[10] Indiana Code section 35-34-1-2 (2013) sets forth the required contents of the

charging information, the overarching purpose of which is to give the defendant

particular notice of the crimes with which he is charged so that he can prepare

an appropriate defense. Woods v. State, 980 N.E.2d 439, 443 (Ind. Ct. App.

2012). Here, the charging information alleges that Brown attempted to commit

fraud on a financial institution by “presenting a cashier[’]s check that appeared

to be authorized by JP Morgan Chase Bank and was associated to a closed

account that belonged to Wendell Brown when Wendell Brown knew that said

account was closed and said check was not authorized by JP Morgan Chase

Bank.” Appellant’s App., Vol. II, p. 12. Additionally, the probable cause

affidavit provided further details that Brown issued an $8,000.00 cashier’s check

to Ray Skillman West car dealership as a down payment on an automobile. Id.

at 15.

[11] “It has long been the rule in Indiana that the State may meet its burden of

providing sufficient notice of the charges the defendant faces through the

combination of an information and a probable cause affidavit.” Tiplick v. State,

43 N.E.3d 1259, 1269 (Ind. 2015). Taken together, the information and the

affidavit in this case provide sufficient facts to allege attempted fraud on a

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 5 of 13 financial institution by Brown’s presentation of a check to Ray Skillman and to

apprise Brown that the State would argue that theory at trial.

III. Sufficiency of the Evidence [12] As a third allegation of error, Brown claims that the State’s evidence was

insufficient to support his conviction. When we review a challenge to the

sufficiency of the evidence, we neither reweigh the evidence nor judge the

credibility of the witnesses. Sandleben v. State, 29 N.E.3d 126, 131 (Ind. Ct.

App. 2015), trans. denied. Instead, we consider only the evidence most favorable

to the judgment and any reasonable inferences drawn therefrom. Id. If there is

substantial evidence of probative value from which a reasonable fact-finder

could have found the defendant guilty beyond a reasonable doubt, the judgment

will not be disturbed. Labarr v. State, 36 N.E.3d 501, 502 (Ind. Ct. App. 2015).

The result of the fact-finder carrying out its function of determining the weight

of the evidence and the credibility of the witnesses is that it is free to believe

whomever it wishes. Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008).

[13] Indiana Code section 35-43-5-8 provides:

(a) A person who knowingly executes, or attempts to execute, a scheme or artifice: (1) . . . . ; or (2) to obtain any of the money, funds, credits, assets, securities, or other property owned by or under the custody or control of a state or federally chartered or federally insured financial institution by means of false or fraudulent pretenses, representations, or promises;

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 6 of 13 commits [fraud on a financial institution] a Level 5 felony. Subsection (b)(4) of the statute defines “state or federally chartered or federally

insured financial institution” to include a bank or financial institution.

[14] The charging information alleged that Brown attempted to obtain United States

currency owned by, under the custody of, or under the control of, JP Morgan

Chase Bank, a state or federally chartered or federally insured financial

institution, by means of false or fraudulent pretenses, representations or

promises by presenting a cashier’s check that appeared to be authorized by JP

Morgan Chase Bank and was associated with a closed account that belonged to

Brown when Brown knew that the account was closed and that the check was

not authorized by JP Morgan Chase Bank. See Appellant’s App., Vol. II, p. 12.

[15] At trial, the State presented evidence that Brown had attempted to purchase a

car from the Ray Skillman dealership in Marion County, Indiana using a

cashier’s check for the down payment and was identified from a photo array by

both Jacob Morris, Ray Skillman salesman, and Christopher Muhney, Ray

Skillman finance manager. Muhney testified that a week after Brown

purchased the car, the dealership accounting office informed him that Brown’s

cashier’s check was returned as not valid.

[16] William Smith, fraud investigator with JP Morgan Chase Bank, also testified

on behalf of the State. Referring to State’s Exhibit 3, a copy of Brown’s

cashier’s check, Smith explained that although it appears to be a cashier’s check

issued by JP Morgan Chase Bank, it is not because the account number on the

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 7 of 13 check is a personal account number. He further testified that JP Morgan Chase

Bank’s cashier’s checks are drawn on funds from a separate internal account so

personal account numbers are not on the check. Additionally, Smith explained

that JP Morgan Chase Bank maintains images of the cashier’s checks it issues,

and, if the check is not found in the system, it generally indicates the check is

counterfeit. He testified that he had examined the records of JP Morgan Chase

Bank and had not found this check in its system. Finally, Smith testified that

JP Morgan Chase Bank’s records indicate that the personal account number on

the check was an account belonging to Brown that was opened in December

2006 and closed in May 2007. The State also presented evidence of Brown’s

knowledge that this account was closed. This evidence is sufficient to show that

Brown committed attempted fraud on a financial institution by attempting to

cause JP Morgan Chase Bank to transfer $8,000.00 to the Ray Skillman car

dealership on the basis of his counterfeit cashier’s check.

IV. Fundamental Error [17] Finally, Brown alleges that the trial court made several fundamental errors.

The fundamental error doctrine is extremely narrow and applies only when the

error amounts to a blatant violation of basic principles, the harm or potential for

harm is substantial, and the resulting error denies the defendant fundamental

due process. Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010), trans.

denied.

[18] First, Brown contends that the trial court judge “refused to acknowledge [his]

jurisdictional challenge or make the [State] prove the court’s jurisdiction was Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 8 of 13 proper” and “refused to take judicial notice of the court’s lack of jurisdiction.”

Appellant’s Br. pp. 17, 18.

[19] As discussed and determined in Issue I, supra, the trial court had jurisdiction

over Brown and his criminal case. In Issue II, supra, we determined the State

presented sufficient evidence at trial, which included proof that the crime

occurred in Marion County, Indiana. In addition, the court did acknowledge

and rule on Brown’s jurisdictional challenges at the hearing on Brown’s motion

to dismiss, see Tr., Vol. I, p. 87, and at the final pre-trial conference:

COURT: Okay. But it does say here that you’re alleging that you want me to take judicial notice that I don’t have jurisdiction. BROWN: Basically take judicial notice of constitutional law and United States code as well as stare decisis that says that this Court doesn’t have judicial — I mean, I’m sorry, jurisdiction. COURT: Okay. I will take judicial notice of the United States Constitution and US code and stare decisis as I find it applies but I will not take judicial notice of your assertion that I don’t have jurisdiction cause I believe I do, all right — I know we disagree on that but I do believe for that — I have jurisdiction and your record is clear, okay? BROWN: Well, I — I know that one case cited in that judicial notice states that the State must prove jurisdiction. COURT: Yes, they have to do that but not until trial. BROWN: Well — COURT: They’ve alleged jurisdiction already. Now they have to prove it at trial. Id. at 102. Accordingly, Brown’s claim of fundamental error on this issue fails.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 9 of 13 [20] Next, Brown argues the trial court committed fundamental error by admitting

State’s Exhibit 3, a copy of the cashier’s check, because it “was not the same

document provided in the initial discovery” in that it “shows signs of

tampering.” Appellant’s Br. p. 19. A review of State’s Exhibit 3 and the

document to which Brown directs us reveals no disparity between the two

copies of the check. See Exhibits Vol. p. 8; Appellant’s App., Vol. II, p. 26.

Brown has failed to show any error, much less fundamental error.

[21] Brown’s final claim of fundamental error is that the trial judge was not

impartial. Trial before an impartial judge is an essential element of due process.

Everling v. State, 929 N.E.2d 1281, 1287 (Ind. 2010). In assessing a trial judge’s

partiality, we examine the judge’s actions and demeanor balanced with the

latitude needed to run the courtroom and maintain discipline and control. Id. at

1288. The conduct to which Brown points as showing the court’s partiality can

be categorized as questioning a witness, clarification of questions and

procedure, admission of evidence, and moving forward with the trial.

[22] The first instance, although described by Brown as the judge giving a legal

conclusion on the evidence, is actually the judge re-stating Brown’s question to

a witness. In a bench trial, the judge is afforded the discretion to ask questions

of a witness to aid in the fact-finding process provided that it is done in an

impartial manner and the defendant is not prejudiced. Jones v. State, 847

N.E.2d 190, 198 (Ind. Ct. App. 2006), trans. denied. Here, the judge was

attempting to assist Brown, who was representing himself, by clarifying his

question to the witness. We discern no bias on the part of the judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 10 of 13 [23] Brown also points to several instances where the trial judge clarified questions

and procedure, which Brown characterizes as the judge “giv[ing] testimony on

her conclusion” and “interrupt[ing] questioning with no reason.” Appellant’s

Br. p. 20. Review of the transcript reveals the judge refined Brown’s question to

a witness to assist him in receiving the information he was seeking and

explained to Brown the State’s burden of proof, the meaning of a witness’s

testimony, and legal terminology and process. Despite the rule that the

defendant who chooses to exercise his right to proceed pro se must accept the

burden and hazards incidental to that position, see Tapia v. State, 753 N.E.2d

581, 587 (Ind. 2001), the trial judge here made attempts to help Brown

understand the procedure in order to facilitate the fact-finding process and keep

the trial moving to conclusion. We therefore find no basis for Brown’s

contention that the judge failed to act impartially.

[24] Further, Brown asserts that the court’s admission of 404(b) evidence constitutes

an act of bias. Brown objected at trial to the use of the transcript of his opening

statement in another criminal case where he admitted to writing checks on the

same account that he used in this case and that it was a closed account.

Brown’s objection was that he had not been provided a copy of the transcript.

The State responded that it filed its notice of intent to introduce 404(b) evidence

and that its “recollection . . . [was that] it was stated [Brown] had to provide his

own copy.” Tr., Vol. I, p. 178. At a pre-trial conference on April 1, 2015, at

which Brown was present and in which he participated, the State explained to

the court that it had paid for and obtained the transcript from the court reporter

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 11 of 13 and asked if that could be released to Brown. The court responded that the

State is not allowed to release the transcript and that the court reporter would

need to provide Brown with a copy. Brown posed no questions to the court in

this regard, and he does not assert that he requested the transcript from the

court reporter. Thus, we find this situation to be an example not of judge bias

but of one of the many pitfalls of self-representation.

[25] Finally, Brown claims the trial court refused his line of questioning and

interrupted his closing argument. Review of the transcript of the incidents cited

by Brown discloses that the judge instructed Brown to “get [his] line of

questioning to something relevant,” to stop questioning a witness about a

document that she did not prepare and upon which the court had already ruled,

and to move on to other more persuasive points in his final argument because

the court was not persuaded by the argument he was currently making. Id. at

183. “‘Even where the court’s remarks display a degree of impatience, if in the

context of a particular trial they do not impart an appearance of partiality, they

may be permissible to promote an orderly progression of events at trial.’”

Everling, 929 N.E.2d at 1288 (quoting Timberlake v. State, 690 N.E.2d 243, 256

(Ind. 1997)). Again, Brown was representing himself, and, on these occasions

noted by Brown, the judge was merely attempting to move the trial forward in

an efficient manner. Brown has failed to demonstrate that the trial judge failed

to act impartially.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 12 of 13 Conclusion [26] For the reasons stated, we conclude that the trial court had both personal and

subject matter jurisdiction in this case, that the charging information was not

defective, that the evidence was sufficient to support Brown’s conviction, and

that the trial court did not commit fundamental error.

[27] Affirmed.

Robb, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017 Page 13 of 13