                                                                                FILED
                                                                           Jul 01 2016, 8:37 am

                                                                                CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Jill M. Acklin                                             Gregory F. Zoeller
      McGrath, LLC                                               Attorney General of Indiana
      Carmel, Indiana                                            Justin F. Roebel
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Adrian Anthony,                                            July 1, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1510-CR-1557
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Mark D. Stoner,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 49G06-1311-FA-075931



      Bradford, Judge.



                                            Case Summary
[1]   In 2013, Appellant-Defendant Adrian Anthony, along with three other men,

      committed a violent burglary at an Indianapolis home belonging to R.N. and

      his wife, B.N. During the burglary, the men brutally attacked and threatened to

      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1557 | July 1, 2016                      Page 1 of 7
      kill the homeowners, ransacked the house, sexually assaulted B.N., and took

      the couple’s debit cards. At one point, one of the men took R.N.’s debit card to

      a nearby ATM and attempted to withdraw money using a personal

      identification number (“PIN”) which R.N. had given him. However, the PIN

      did not work and the man was unable to withdraw any money. Upon his

      return, Anthony threatened to kill R.N. for providing an incorrect PIN and

      R.N. offered to go to the ATM and get the money himself. Anthony then took

      R.N. to the ATM at gunpoint. R.N. was unable to withdraw money using his

      debit card because his account had been locked due to too many unsuccessful

      attempts. Ultimately, Anthony returned to the ATM with B.N. and was able to

      withdraw $500 using B.N.’s debit card.


[2]   A jury found Anthony guilty of thirty-five counts relating to the burglary which

      included fourteen counts of forgery (one for each attempt to withdraw money

      using the victims’ debit cards). Anthony received six years for each forgery

      conviction to be served concurrently and an aggregate sentence of eighty-eight

      years executed in the Department of Correction (“DOC”). On appeal,

      Anthony argues that there is insufficient evidence to support his convictions for

      forgery because the debit cards used were not forged instruments. Concluding

      otherwise, we affirm.



                             Facts and Procedural History
[3]   In the early morning hours of October 24, 2013, Anthony and three

      accomplices––Michael Pugh, Taiwan Lundy, and Trae Spells––broke into a

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      Northside-Indianapolis home belonging to R.N. and his wife, B.N. One of the

      men entered the bedroom and held R.N. and B.N. at gunpoint while the

      remaining group members ransacked the house taking anything of value

      including jewelry, purses, watches, electronics, and televisions. The individual

      holding the couple at gunpoint asked them where they kept their cash. When

      the couple responded that they did not keep money in the house, the individual

      fired the gun over their heads and continued to question them about where they

      kept their money until R.N. stated that their money was in the bank. R.N. then

      gave the men a PIN to use with his debit card.


[4]   The couple remained at gunpoint while one member of the group took B.N.’s

      2006 Jeep Commander to a nearby ATM and attempted to withdraw money

      from R.N.’s account without success. Eventually, the man returned and

      accused R.N. of lying about his PIN. The men threatened to kill the couple and

      R.N. offered to go to the ATM with the men to retrieve money, suggesting that

      the PIN may have been entered incorrectly. The group then violently assaulted

      R.N. before ultimately deciding to take R.N. to the ATM.


[5]   While being held at gunpoint, R.N. drove Anthony to the ATM and attempted

      to withdraw money himself. However, R.N. was unable to complete a

      transaction with the same ATM card because his account had been locked due

      to the number of unsuccessful prior attempts. Anthony then stated, “You lied

      to me again. You guys are dead.” Tr. p. 79. R.N. told Anthony that his wife

      had a separate account with a different ATM card and the two then returned to

      the house to retrieve it.

      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1557 | July 1, 2016   Page 3 of 7
[6]   After locating B.N.’s debit card, Anthony forced B.N. to drive him back to the

      ATM. Once at the ATM, B.N. attempted to withdraw $800 but the amount

      was denied because there is a maximum of $500 which may be withdrawn in a

      given period of time. B.N. then successfully withdrew $500 and gave it to

      Anthony. B.N. then attempted to make additional withdrawals but was

      unsuccessful. All told, there were thirteen attempted ATM transactions with

      only one being successful. The first five unsuccessful transactions occurred

      around 6:18 a.m., the second five unsuccessful transactions occurred around

      7:37 a.m., and the final three transactions, including the sole successful

      withdrawal, occurred around 8:01 a.m.


[7]   After returning to the house, Anthony and the other men tied up R.N. and

      B.N., loaded the stolen items into B.N.’s vehicle, and savagely beat the couple

      over the head with a DVD player before leaving the house. After they were

      sure that the group had left, the couple freed themselves and called 911.


[8]   The State charged Anthony with one count of Class A felony burglary, one

      count of Class A felony conspiracy to commit burglary, four counts of Class B

      felony robbery, eleven counts of Class B felony criminal confinement, two

      counts of Class C felony intimidation, thirteen counts of Class C felony forgery,

      one count of Class C felony conspiracy to commit forgery, one count of Class C

      felony sexual battery, one count of Class A felony criminal deviate conduct,

      three counts of Class C felony battery, and two counts of Class B felony

      carjacking. The jury found Anthony guilty on thirty-five counts, not guilty on

      one count of Class C felony battery, and was unable to reach a verdict regarding

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       sexual battery, criminal deviate conduct, and two counts of criminal

       confinement. Anthony received six years for each forgery conviction to be

       served concurrently and an aggregate sentence of eighty-eight years executed in

       the DOC.



                                   Discussion and Decision
[9]    On appeal, Anthony argues that there is insufficient evidence to sustain his

       convictions for forgery.

               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.


       Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (citations and quotations

       omitted). However, questions concerning the interpretation of a statute are

       legal issues which we review de novo. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct.

       App. 2008).


[10]   Anthony argues that using the victims’ ATM cards did not qualify as “uttering”

       a written instrument for purposes of the forgery statute. Indiana code section

       35-43-5-2 (2014) provides that “A person who, with intent to defraud, makes,
       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1557 | July 1, 2016         Page 5 of 7
       utters, or possesses a written instrument in such a manner that it purports to

       have been made: (1) by another person…; or (4) by authority of one who did

       not give authority; commits forgery, a Class C felony.” The charging

       information alleged that Anthony and Spells “with the intent to defraud,

       utter[ed] to Chase Bank a written instrument, that is: a debit card...in such a

       manner that said instrument purported to have been made by the authority of

       [R.N. or B.N.], who did not give authority.” Appellant’s App. pp. 51-53. The

       jury was instructed that “utter,” as defined by Indiana code section 35-31.5-2-

       345, means “to issue, authenticate, transfer, publish, deliver, sell, transmit,

       present, or use.”


[11]   At first glance, it appears that Anthony’s behavior qualifies as forgery under the

       express language of the statute. Anthony uttered (i.e., presented or used)

       written instruments––the victims’ debit cards––in a manner such that it

       appeared that the victims were authorizing withdrawals. Anthony argues that

       the victims’ debit cards were not forged and so he did not use a forged

       instrument. However, it is not an essential element of forgery that the

       instrument used necessarily be forged or inauthentic. Rather, impersonating

       another so as to use an authentic written instrument belonging to them without

       authorization is sufficient to prove forgery. Borjas v. State, 946 N.E.2d 1230,

       1233 (Ind. Ct. App. 2011), trans. denied; see also Green v. State, 945 N.E.2d 205

       (Ind. Ct. App. 2011)).


[12]   In Borjas, this court held that an individual who attempts to use a credit card

       belonging to another person, and authenticates that card with a signature

       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1557 | July 1, 2016     Page 6 of 7
       purporting to be the other person, can be convicted of forgery. Id. (“we hold

       that the State presented sufficient evidence that Borjas uttered a written

       instrument when she signed Hornbeak’s name to authenticate the purchases she

       made using Hornbeak’s credit card.”). The parties disagree on whether entering

       a PIN is analogous to signing another person’s name to authenticate a credit

       card. We find no meaningful distinction.


[13]   Using a debit card to withdraw money from an ATM is essentially the same as

       writing oneself a check to cash at the bank. If an individual steals a victim’s

       checkbook, forges the victim’s signature, and attempts to cash a check, then the

       individual is clearly guilty of forgery. The same logic applies to an ATM

       transaction. Like a signature, a personal identification number is a means by

       which the bank can attempt to verify a person’s identity and assure that they are

       authorized to access the account. By using the victims’ PINs, Anthony was

       attempting to defraud the bank by purporting to be the victims. We agree with

       the State that distinguishing ATM transactions as Anthony suggests would

       allow defendants to avoid criminal liability due to advances in technology.


[14]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




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