MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D), this                        Jul 14 2016, 8:37 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.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce E. Fein                                             Gregory F. Zoeller
W. Bruce DelValle                                         Attorney General of Indiana
Fein & DelValle PLLC
                                                          Michael G. Worden
Washington, District of Columbia
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana
Susan D. Rayl
Smith Rayl Law Office, LLC
Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Edward A. Young,                                          July 14, 2016

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          29A02-1508-CR-1240
        v.                                                Appeal from the Hamilton Superior
                                                          Court.
                                                          The Honorable Daniel J. Pfleging,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 29D02-1310-FC-8987




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016       Page 1 of 20
                                            Statement of the Case
[1]   Edward A. Young appeals his convictions by a jury of forgery, a Class C
                  1                                            2                                     3
      felony; insurance fraud, a Class D felony; and theft, a Class D felony. We

      affirm.


                                                      Issues
[2]   Young raises six issues, which we consolidate and restate as:

                 I.       Whether the prosecution engaged in misconduct during
                          voir dire that amounted to fundamental error.
                 II.      Whether the trial court erred in admitting an exhibit.
                 III.     Whether the trial court erred in its jury instructions.
                 IV.      Whether the evidence is sufficient to sustain Young’s
                                       4
                          convictions.

                                   Facts and Procedural History
                          5
[3]   Irene Gentry is an independent insurance agent and, during the period of time

      relevant to this case, was licensed to sell life, accident, and health insurance. In

      2007 or 2008, Gentry’s son introduced her to Edward A. Young. Gentry and

      Young became friends and attended prayer meetings together. She was aware




      1
          Ind. Code § 35-43-5-2 (2006).

      2
          Ind. Code § 35-43-5-4.5 (2005).

      3
          Ind. Code § 35-43-4-2 (2009).

      4
          Young has filed a Motion for Oral Argument. We deny the motion by separate order.
      5
       Gentry was known as Irene Schwartz during the period of time relevant to this case. She married while this
      case was pending and changed her last name to Gentry.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016           Page 2 of 20
      that he was also an independent insurance agent and occasionally referred

      customers to him.


[4]   Young’s family owned Liberty Insurance Agency, LLC. His wife and son were

      listed as Liberty Insurance’s officers on documents filed with the Indiana

      Secretary of State. In 2010, an employee of Liberty Insurance helped Gentry

      apply for life insurance for herself. She filled out an application containing

      information including her address, social security number, and date of birth. By

      2012, Young and his wife had surrendered their licenses to sell insurance in

      Indiana, but Liberty Insurance continued to operate.


[5]   In early 2012, Fidelity Life Association, a life insurance company, received a

      “General Agent Application” that purported to have been signed by Irene

      Gentry on February 29, 2012. State’s Ex. 1. It contained her correct phone

      number, social security number, and state-issued insurance license numbers, but

      an incorrect fax number, email address, and federal tax ID number. In fact,

      Gentry neither prepared nor signed the application and did not authorize

      anyone to prepare it or sign it on her behalf.


[6]   The applicant asked Fidelity Life to appoint Gentry to sell Fidelity Life’s

      policies. The applicant further asked Fidelity Life to pay Gentry’s commissions

      to Liberty Insurance. The application had several attachments, including an

      authorization for electronic fund transfers of commissions to Liberty

      Insurance’s bank account. In another attachment, Gentry was incorrectly

      identified as the Vice-President of Liberty Insurance. The application also


      Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 3 of 20
      included a federal W-9 form, entitled “Request for Taxpayer Identification

      Number and Certification.” State’s Ex. 1. The W-9 form was purportedly

      signed by Gentry on behalf of Liberty Insurance. On the W-9 form, an address

      was listed for Liberty Insurance that was, in reality, Young’s home address.


[7]   Fidelity Life accepted the application and authorized Gentry to sell its

      insurance policies as an independent agent. Subsequently, Liberty Insurance

      sold multiple life insurance policies under Gentry’s name. Fidelity Life paid

      commissions to Liberty Insurance’s employees, including Young, his son, and

      his daughter-in-law. The commissions were advance payments, based on a

      projection of the premiums the policyholders are expected to pay. When

      policyholders fail to pay premiums, Fidelity Life considers the commissions to

      be debts owed to Fidelity Life by the agent. In this case, policyholders failed to

      pay the premiums for several Fidelity Life policies sold by Liberty Insurance’s

      employees. Fidelity Life deemed Gentry, the person who allegedly signed the

      application, to be ultimately responsible for the debts.


[8]   Meanwhile, in December 2012, Gentry applied to Oxford Life to sell their

      insurance policies. She had not previously been an agent of that company.

      Oxford Life informed her she was already their appointed agent through

      Liberty Insurance and owed them money for advance commissions on

      premiums that were not paid. The company further informed Gentry that, due

      to her unpaid debt, it had listed her on Vector. Vector is a list of insurance

      agents who owe debts to insurance companies. The list is shared among

      insurance companies, and if an agent is placed on the list, “that pretty much

      Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 4 of 20
       paralyzes you.” Tr. p. 222. As Gentry explained, insurance companies will not

       appoint agents who are on the list, and “you can’t do business.” Id.


[9]    After obtaining additional information from Oxford Life, Gentry contacted

       Young. When Gentry told Young that Oxford Life had placed her on Vector

       due to Liberty Insurance’s actions, he promised to resolve the situation

       “today.” Id. at 225. He acknowledged writing policies in her name without her

       consent or permission. Id. at 255. She asked where the unearned commissions

       had gone, and he said “they went to the ministry.” Id. at 226. Later, in an

       email to Gentry, Young acknowledged incurring a “$4,600 debt for for [sic] you

       without your consent or knowledge.” State’s Ex. 4.


[10]   An investigator employed by Oxford Life contacted Young, who acknowledged

       in a recorded phone conversation that he entered into an agreement with

       Oxford Life using Gentry’s name “without her consent or even her

       knowledge.” State’s Ex. 9. He further admitted Gentry did not sign the

       application, and he promised to personally repay the $4,600 debt. Oxford Life

       eventually removed its complaint against Gentry from Vector. In January

       2013, Young told Gentry he had “acknowledged my sin before the Lord and

       you and finally Oxford.” State’s Ex. 5.


[11]   Meanwhile, Gentry received a statement from Fidelity Life claiming she was

       their appointed agent and owed them $10,000 in connection with commissions

       paid to Liberty Insurance. In February 2013, Gentry emailed Young to notify

       him Fidelity Life believed she owed them money and had listed her on Vector.


       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 5 of 20
       She accused him of writing policies in her name. She further told him, “I

       haven’t been able to work for almost 3 month[s].” State’s Ex. 6.


[12]   Gentry informed Fidelity Life she was not responsible for the debt, and the

       company assigned an investigator. In an email to the investigator, Young

       admitted, “without [Gentry’s] approval or consent I created a debt for her with

       Fidelity Life.” State’s Ex. 11. He admitted that he had been “wrong.” Id.

       Young agreed with the investigator’s assessment that he had prepared Fidelity

       Life insurance policies in Gentry’s name and had personally received advance

       commissions from Fidelity Life.


[13]   The matter subsequently came to the attention of the Indiana State Police and

       the Indiana Department of Insurance. The State charged Young with forgery

       (in relation to the false application submitted to Fidelity Life), insurance fraud

       (in relation to the false commission reports submitted to Fidelity Life), and theft

       (taking unearned funds from Fidelity Life). Prior to trial, Young filed a motion

       in limine to exclude any evidence related to Oxford Life. The trial court denied

       the motion. During trial, after the State’s presentation of evidence Young

       moved for a directed verdict as to the charge of insurance fraud. The court

       denied the motion, and the trial continued. A jury determined Young was

       guilty as charged. The court imposed a sentence, and this appeal followed.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 6 of 20
                                    Discussion and Decision
               I. Prosecutorial Misconduct and Fundamental Error
[14]   Young argues the prosecutor made unfairly prejudicial remarks during voir dire

       proceedings. He concedes he did not object to any of those remarks, so he

       further argues the remarks amounted to fundamental error. In response, the

       State asserts the prosecutor did not engage in misconduct.


[15]   When a claim of prosecutorial misconduct has been procedurally defaulted for

       failure to properly raise the claim in the trial court, the defendant must establish

       not only the grounds for prosecutorial misconduct but also that the misconduct

       amounted to fundamental error. Ryan v. State, 9 N.E.3d 663, 667-68 (Ind.

       2014). In reviewing a claim of prosecutorial misconduct, we must determine

       whether (1) the prosecutor engaged in misconduct and, if so, (2) whether the

       misconduct, under all of the circumstances, placed the defendant in a position

       of grave peril to which he or she should not have been subjected. Booher v.

       State, 773 N.E.2d 814, 817 (Ind. 2002). The gravity of the peril turns on the

       probable persuasive effect of the misconduct on the jury’s decision, not on the

       degree of impropriety of the conduct. Carter v. State, 956 N.E.2d 167, 169 (Ind.

       Ct. App. 2011), trans. denied.


[16]   The fundamental error exception to the requirement for a contemporaneous

       objection is extremely narrow. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2012).

       To be fundamental error, misconduct must have made a fair trial impossible or

       been a clearly blatant violation of basic and elementary principles of due

       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 7 of 20
       process that presents an undeniable and substantial potential for harm. Deaton

       v. State, 999 N.E.2d 452, 454 (Ind. Ct. App. 2013), trans. denied. The

       fundamental error exception is available only in egregious circumstances.

       Brown, 929 N.E.2d at 207.


[17]   The purpose of voir dire is to determine whether potential jurors can render a

       fair and impartial verdict in accordance with the law and the evidence. Carter v.

       State, 932 N.E.2d 1284, 1288 (Ind. Ct. App. 2010). Voir dire panelists may be

       asked questions to identify bias but not to condition them to be responsive to

       the questioner’s position. Deaton, 999 N.E.2d at 455. Proper examination may

       include questions designed to disclose the panelists’ attitudes about the type of

       offense charged. Steelman v. State, 602 N.E.2d 152, 158 (Ind. Ct. App. 1992).

       Similarly, the parties may attempt to uncover panelists’ preconceived ideas

       about a defense the defendant intends to use. Id. As part of this process, the

       parties may pose hypothetical questions, provided they do not suggest

       prejudicial evidence not adduced at trial. Id.


[18]   Young claims the prosecutor erred by discussing the elements of the charged

       offenses with the voir dire panel and by presenting hypotheticals. The

       prosecutor began his voir dire questioning by noting the trial court “read out the

       crimes that the Defendant is charged with,” Tr. p. 55, and asking the panelists

       to explain their understandings of the offenses. These questions appropriately

       allowed the prosecutor to discover the panelists’ perspectives on the offenses

       and to potentially detect any biases. See Steelman, 602 N.E.2d at 158 (no

       prosecutorial misconduct in asking jurors about the offense of dealing drugs

       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 8 of 20
       within 1,000 feet of school property). Similarly, the hypotheticals the

       prosecutor mentioned during his discussion of the offenses were presented in

       the context of asking jurors for their understanding of what acts might violate

       the governing statutes.


[19]   Young further challenges as misconduct the prosecutor’s questioning of

       potential jurors using the following hypothetical:

               Juror No. 10, I’m going to give you a scenario. All right. You
               are a - you’re a law enforcement officer. You’re in your patrol
               car driving down the road, and you observe a vehicle speeding.
               So, you turn on your lights, pull them over. When you
               approach, you see that there’s four people in the vehicle. As you
               have the - the driver rolls down their window, and as you
               approach to explain to the driver why you pulled them over, you
               observe contraband in the back seat between the two back seat
               passengers. Specifically, we’ll say a bag of crack cocaine. How
               do you figure out whose – whose contraband drugs that is?
[20]   Tr. pp. 70-71. The prosecutor added an additional circumstance to the

       hypothetical, specifically that one of the back seat passengers claimed

       ownership of the cocaine.


[21]   The questions resulted in several panelists explaining how they would

       determine who owned the cocaine and how they would address the passenger’s

       statement. The hypothetical thus focused on core jury functions such as

       assigning responsibility for offenses and weighing witness credibility. Those

       functions were crucial in this case, where Young pursued a strategy of arguing

       someone else committed the offenses even though the record also indicated he

       made several incriminating statements. As a result, the hypothetical did not


       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 9 of 20
       amount to prosecutorial misconduct, much less fundamental error. See Carter,

       932 N.E.2d at 1289 (prosecutor’s hypothetical did not amount to misconduct

       because it allowed the prosecutor to test the voir dire panelists’ willingness to

       follow court instructions).


[22]   Young cites Foster v. State, 436 N.E.2d 783 (Ind. 1982), but that case is

       distinguishable. In Foster, a prosecutor gave a lengthy statement during voir

       dire, including reading the charging information, quoting from the statutes that

       governed the offenses, and discussing the possible penalties Foster faced if

       found guilty. Young claims our Supreme Court condemned the prosecutor’s

       discussion of the criminal statutes and further claims the case establishes that a

       prosecutor should not review the elements of an offense with prospective jurors.


[23]   We disagree with Young’s reading of Foster. In our view, the Court’s

       disapproval was focused on the prosecutor’s explanation to the panelists of the

       penalties Foster faced. The Court stated, “Since the jury no longer serves any

       function with respect to determination of the sentence, it is not to be advised of

       the possible penalties.” Id. at 786. The Court further explained, “Despite

       Defendant’s timely and continuing objection, the trial court took no steps to

       prevent the Prosecutor from improperly instructing the jury about matters that

       the law entrusts to the trial court. The trial court’s inaction allowed the State to

       cultivate bias about penalties in its favor in the voir dire when it could not

       cultivate that same bias in tendered instructions.” Id. at 788.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 10 of 20
[24]   In the current case, the prosecutor did not discuss Young’s possible sentence.

       For that reason, Foster is inapplicable, and the prosecutor did not commit

       misconduct during voir dire.


                                    II. Admission of Evidence
[25]   Young claims the trial court should not have admitted State’s Exhibit 9, a

       recording of a phone conversation between Young and an investigator for

       Oxford Life. The State argues the trial court did not err because the exhibit was

       admissible and the trial court cured any problems by giving a limiting

       instruction to the jury.


[26]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court and is reviewed only for an abuse of discretion. Dunlap v. State,

       761 N.E.2d 837, 841 (Ind. 2002). An abuse of discretion occurs when the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances. Guffey v. State, 42 N.E.3d 152, 158 (Ind. Ct. App. 2015), trans.

       denied.


[27]   Young claims the admission of Exhibit 9 violated Indiana Evidence Rule

       404(b), which provides:

                 (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
                 not admissible to prove a person’s character in order to show that
                 on a particular occasion the person acted in accordance with the
                 character.
                 (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
                 admissible for another purpose, such as proving motive,


       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 11 of 20
               opportunity, intent, preparation, plan, knowledge, identity,
               absence of mistake, or lack of accident.

[28]   When considering whether to admit evidence under Rule 404(b), a trial court

       must determine whether the evidence of other crimes, wrongs, or acts is

       relevant to a matter other than the defendant’s propensity to commit the

       charged act. Luke v. State, 51 N.E.3d 401, 416 (Ind. Ct. App. 2016), trans.

       denied. In addition, the court must balance the probative value of the evidence

       against its prejudicial effect pursuant to Indiana Evidence Rule 403. Id. The

       trial court has wide latitude in weighing the probative value of evidence against

       the possible prejudicial effect of its admission. Id.


[29]   In this case, the jury heard Exhibit 9, a recording of a telephone conversation

       between Young and an investigator for Oxford Life. During the recording,

       Young admitted to the investigator that he entered into an agreement with

       Oxford Life using Gentry’s name “without her consent or even her

       knowledge.” State’s Ex. 9. He further stated, “I got her into this bit with your

       company, and it’s wrong.” Id. Young conceded he wrote Oxford Life policies

       for customers, using Gentry’s name, without her authorization. Finally, Young

       promised the investigator he would pay the balance owed to Oxford Life “with

       the resources I personally have.” Id.


[30]   The trial court admitted Exhibit 9 for the “limited purpose of finding

       preparation, plan, knowledge, identity, and absence of mistake.” Tr. p. 309.

       Evidence of prior wrongdoing admitted under the identity exception is

       generally evaluated based upon whether the prior wrongdoing establishes a

       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 12 of 20
       signature crime with a common modus operandi. Bishop v. State, 40 N.E.3d

       935, 952 (Ind. Ct. App. 2015), trans. denied. The rationale behind the identity

       exception is that if crimes are sufficiently similar and unique, it is highly

       probable that the same person committed all of them. Id. The prior

       wrongdoing must be significantly related to the charged crime in time, place,

       and circumstance. Id.


[31]   During trial, Young denied having filled out the fraudulent application for

       Fidelity Life using Gentry’s name or submitting requests for advance

       commissions for policies whose premiums were never paid. Exhibit 9

       demonstrated that Young had admitted to filling out an Oxford Life agent

       application in Gentry’s name, writing Oxford Life policies in her name, and

       accepting commission payments from Oxford Life directed to Gentry. His

       wrongdoing with respect to Oxford Life is substantially similar to the offenses

       at issue in this case, and the incidents happened within a year or less of each

       other. We conclude the trial court properly determined Exhibit 9 was relevant

       to demonstrate identity. See id. (evidence of prior shooting by defendant was

       relevant to establish identity in shooting case at issue).


[32]   As for the danger of unfair prejudice per Rule 403, the probative value of

       Exhibit 9 was very high given the similarities between Young’s conduct against

       Oxford Life and his actions involving Fidelity Life. Young argues he was

       unfairly prejudiced because he did not have a chance to cross-examine the

       Oxford Life investigator. This argument carries little weight because he could

       have taken her deposition prior to trial or sought to have her testify. Young

       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 13 of 20
       further asserts he was unfairly prejudiced because the prosecutor repeatedly

       cited to the Oxford Life incident in his closing argument. This assertion is also

       without merit. The prosecutor referred to the facts mentioned in Exhibit 9 but

       limited his discussion to modus operandi, noting that with respect to Oxford

       Life and Fidelity Life, “basically the same thing was done.” Tr. p. 429.


[33]   Finally, the trial court read a limiting instruction to the jury, as follows:

               Ladies and gentlemen of the jury, this telephone conversation is
               coming in, but you are to limit how you accept this evidence.
               This telephone conversation deals with Oxford Life Insurance.
               Oxford Life Insurance is not the victim in this case. As we know
               and as we’ve heard, Fidelity Life Association is the victim. You
               may consider this evidence of this phone conversation for the
               limited purposes of finding preparation, plan, knowledge,
               identity, or absence of mistake. Those are the only purposes that
               you can consider this conversation.
       Id. at 310. On appeal we presume the jury obeyed the court’s instructions. Isom

       v. State, 31 N.E.3d 469, 481 (Ind. 2015). As a result, any prejudice from the

       admission of Exhibit 9 did not substantially outweigh its probative value, and

       the trial court did not abuse its discretion.


[34]   Young also argues the admission of Exhibit 9 was erroneous because it

       amounted to a confession of wrongdoing without independent evidence of a

       corpus delecti. Young did not raise this argument in the trial court, so it is

       waived. See Elvers v. State, 22 N.E.3d 824, 832 (Ind. Ct. App. 2014) (failure to

       present issue to trial court results in procedural default of issue on appeal).

       Young further claims the admission of Exhibit 9 amounted to fundamental

       error. The corpus delecti rule, which states a crime may not be proven based

       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 14 of 20
       solely on a confession, “does not apply to evidence of other crimes permitted by

       Evidence Rule 404(b).” Wilkes v. State, 917 N.E.2d 675, 684 (Ind. 2010). As a

       result, there was no error, let alone fundamental error.


                                         III. Jury Instructions
[35]   Young argues the trial court erred in giving Preliminary Instruction 10 and

       Final Instruction 23, both of which instructed the jury that under the

       Constitution of Indiana, they had the right to determine “both the law and

       facts.” Appellant’s App. pp. 195, 251. Young claims these instructions violated

       Article I, section 10, clause 1 of the Constitution of the United States of

       America, commonly known as the ex post facto clause, because the jury could

       have “created” a new crime and determined Young was guilty. Appellant’s Br.

       p. 39. The State responds that Young has failed to preserve any challenge to

       these instructions because he invited any error.


[36]   We need not address the question of invited error because the transcript

       demonstrates Young unquestionably failed to object to the instructions. Failure

       to object in the trial court waives appellate review of a claimed error. Kingery v.

       State, 659 N.E.2d 490, 494 (Ind. 1996).


[37]   Young mentions in passing that a challenge to jury instructions may be

       reviewed on appeal despite waiver if the error amounts to fundamental error.

       Young offers no analysis or citation to authority to demonstrate that the

       challenged instructions were so unduly prejudicial as to make a fair trial

       impossible. As a result, this claim is also waived. See Absher v. State, 866

       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 15 of 20
       N.E.2d 350, 355 (Ind. Cr. App. 2007) (claim of fundamental error waived if the

       appellant fails to present cogent argument or citation to authority).


                                IV. Sufficiency of the Evidence
[38]   Young asserts there is insufficient evidence to support each of his three

       convictions. He challenges his conviction for insurance fraud in the context of

       the denial of his motion for directed verdict. We will review his insurance fraud

       claim as a challenge to the sufficiency of the evidence because if the evidence is

       sufficient to sustain a conviction on appeal, then the denial of a motion for

       directed verdict cannot be error. Hollowell v. State, 707 N.E.2d 1014, 1019 (Ind.

       Ct. App. 1999). The State claims there is ample evidence to support the

       convictions.


[39]   On a challenge to the sufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of the witnesses. Anderson v. State, 37 N.E.3d

       972, 973 (Ind. Ct. App. 2015), trans. denied. Instead, we respect the jury’s

       exclusive province to weigh conflicting evidence. Id. As a result, we consider

       only the evidence most favorable to the verdict. Id. We will affirm the

       conviction if there is probative evidence from which a reasonable jury could

       have found the defendant guilty beyond a reasonable doubt. Scott v. State, 867

       N.E.2d 690, 694 (Ind. Ct. App. 2007), trans. denied. It is not necessary that the

       evidence overcome every reasonable hypothesis of innocence. Dumes v. State,

       23 N.E.3d 798, 802 (Ind. Ct. App. 2014).




       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 16 of 20
                                                    1. Forgery

[40]   In order to convict Young of forgery as a Class C felony, the State was required

       to prove beyond a reasonable doubt that: (1) Young (2) with the intent to

       defraud (3) made or uttered (4) a written instrument (5) in such a manner that it

       purported to have been made (6) by another person. Ind. Code § 35-43-5-2.


[41]   Young claims he did not make or utter the false application that was submitted

       to Fidelity Life in Gentry’s name requesting her appointment as an independent

       agent. The evidence most favorable to the judgment reveals Young had access

       to Gentry’s personal information because she had applied for life insurance

       through Liberty Insurance. In addition, Young had previously obtained general

       agent status with Oxford Life using Gentry’s name, which is relevant to show

       the identity of the person who forged the application with Fidelity Life.

       Finally, Young admitted to a Fidelity Life investigator that he had “created a

       debt” for Gentry “without her approval or consent.” State’s Ex. 11. This is

       sufficient evidence from which the jury could have reasonably determined

       Young forged the application.


[42]   Next, Young asserts there is no evidence he had the requisite intent to defraud.

       An intent to defraud involves an intent to deceive and thereby work a reliance

       and an injury. Diallo v. State, 928 N.E.2d 250, 252 (Ind. Ct. App. 2010). There

       must be a potential benefit to the forger or potential injury to the defrauded

       party. Id. at 253.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 17 of 20
[43]   The record establishes that Young, who had surrendered his insurance agent

       license to the Indiana Department of Insurance, began an agency relationship

       with Fidelity Life in Gentry’s name, and he knew he did not have her “approval

       or consent.” State’s Ex. 11. Gentry had a valid insurance agent license. The

       jury could reasonably extrapolate from this evidence that Young intended to

       fool Fidelity Life into believing it had established a relationship with Gentry,

       with the plan of receiving commissions from Fidelity Life for selling its policies.

       This is ample evidence of intent to defraud. Young’s arguments to the contrary

       are merely requests to reweigh the evidence, which our standard of review

       forbids.


                                              2. Insurance Fraud

[44]   In order to convict Young of insurance fraud as a Class C felony, the State was

       required to prove beyond a reasonable doubt that: (1) Young (2) knowingly

       and with intent to defraud (3) caused a statement containing false, incomplete

       or misleading information (4) to be presented to an insurer (5) and caused

       economic loss in an amount exceeding $2,500. Ind. Code § 35-43-5-4.5.


[45]   Young claims the State failed to prove he caused any economic loss. The trial

       court instructed the jury that it was required to find that Gentry sustained the

       loss. Young conceded he had “created a debt” in Gentry’s name. State’s Ex.

       11. As a result, Fidelity Life placed Gentry on Vector, an insurance industry

       blacklist “that pretty much paralyzes you.” Tr. p. 222. If you are put on the

       list, “you can’t do business.” Id. At one point, Gentry told Young she “hadn’t

       been able to work for almost 3 month[s].” State’s Ex. 6. A jury could
       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 18 of 20
       reasonably infer from this evidence that Gentry had experienced lost income

       and other costs greater than $2,500 as a result of Young filing false claims with

       Fidelity Life.


[46]   Next, Young argues the State failed to present sufficient evidence of any intent

       to defraud. He admitted to Fidelity Life’s investigator that he wrote policies

       submitted to Fidelity Life in Gentry’s name, and advance commissions were

       “effectively, paid to [him].” State’s Ex. 11. Further, Young admitted that what

       he did was “wrong doing” for which he needed to make restitution. Id. The

       jury could have reasonably concluded from this evidence Young’s goal was to

       deceive Fidelity Life into paying undeserved, inappropriate advance

       commissions to him. As a result, there is sufficient evidence of his intent to

       defraud, and Young’s conviction for insurance fraud stands.


                                                     3. Theft

[47]   In order to convict Young of theft as a Class D felony, the State was required to

       prove beyond a reasonable doubt that: (1) Young (2) knowingly or

       intentionally (3) exerted unauthorized control (4) over the property of another

       person (5) with intent to deprive the other person of any part of its value or use.

       Ind. Code § 35-43-4-2.


[48]   Young argues there is insufficient evidence that he, rather than Liberty

       Insurance, took unearned money from Fidelity Life. The record reflects that

       Young admitted to writing Fidelity Life insurance policies in Gentry’s name.

       Further, Fidelity Life’s records demonstrate that advance payments on


       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 19 of 20
       commissions were paid to Edward A. Young. This is ample evidence from

       which the jury could have reasonably determined beyond a reasonable doubt

       that Young exerted unauthorized control over Fidelity Life’s commission

       payments by writing insurance policies for which the premiums were not paid.

       As a result, there is sufficient evidence to sustain Young’s theft conviction.


                                                Conclusion
[49]   For the foregoing reasons, we affirm the judgment of the trial court.


[50]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1240 | July 14, 2016   Page 20 of 20
