      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                      Mar 02 2015, 10:50 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Bernice A. N. Corley                                     Gregory F. Zoeller
      Appellate Panel Attorney — Marion                        Attorney General of Indiana
      County Public Defender Agency
      Indianapolis, Indiana                                    Lyubov Gore
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Stephen Wilbert,                                         March 2, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1408-CR-533
              v.                                               Appeal from the Marion Superior
                                                               Court
                                                               The Honorable Grant W. Hawkins,
      State of Indiana,                                        Judge
      Appellee-Plaintiff                                       The Honorable Christina Klineman,
                                                               Commissioner
                                                               Case No. 49G05-1312-FC-78965




      Bradford, Judge.



                                            Case Summary
[1]   On the evening of December 11, 2013, Appellant-Defendant Stephen Wilbert

      was arrested after he and a group of three others used $1300.00 in counterfeit
      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015      Page 1 of 22
      United States currency to pay for purchases from an Indianapolis-area Target

      store. Wilbert was subsequently charged with and found guilty of Class C

      felony forgery and Class D felony theft. Wilbert challenges the sufficiency of

      the evidence to sustain his convictions on appeal. He also contends that his

      convictions violate the constitutional prohibitions against double jeopardy.

      Concluding that the evidence is sufficient to sustain Wilbert’s convictions and

      that his convictions for Class C felony forgery and Class D felony theft do not

      violate constitutional prohibitions against double jeopardy, we affirm.



                            Facts and Procedural History
[2]   At approximately 7:00 p.m. on December 11, 2013, Wilbert went to an

      Indianapolis-area Target store with D’Andre Driver, Antwain Batemon, and

      Ryan Mahone. Driver and Batemon first entered the store with Wilbert and

      Mahone entering a few minutes later. Upon entering the store, Driver and

      Batemon went to the electronics section. Driver and Batemon quickly selected

      high-dollar items such as “Beats by Dre” headphones, a television, an Xbox

      360, and expensive Lego merchandise. Tr. p. 29.


[3]   On December 11, 2013, David Casiano was employed by Target as a senior

      assets-protection specialist. Casiano had worked for Target for approximately

      six years, focusing on instances of theft and fraud. During the course of his

      employment on that evening, Casiano observed Driver and Batemon on the

      store’s surveillance video. Casiano’s attention was drawn to Driver and

      Batemon because of how quickly they were selecting high dollar items from the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 2 of 22
      “front end cap” of the electronic section, which was unlocked to allow guests

      easier access to the merchandise. Tr. p. 29. After approximately ten minutes,

      Driver and Batemon proceeded toward the checkout lane. At this time,

      Casiano went to the sales floor to observe the transaction from a distance of

      approximately twenty to thirty feet away while two uniformed security officers

      continued to watch the transaction on the surveillance video.


[4]   Driver and Batemon went through a register that was staffed by Jane Carver.

      The value of the merchandise selected by Driver and Batemon totaled $932.99.

      Batemon handed Driver cash which Driver combined with cash from his

      pocket. Driver then presented the money to Carver as payment. Although

      Casiano was unable to see the denomination of the currency given to Carver by

      Driver, Casiano observed that Carver placed the bills in the “farthest right till,”

      where the higher-value bills are stored. Tr. p. 85. After paying for the

      merchandise, Driver and Batemon left the store.


[5]   Seconds later, Casiano walked over to Carver’s register. Casiano proceeded to

      check the bills that Driver and Batemon had given to Carver, including nine

      $100.00 bills. Casiano knew “right then and there … that there was a

      problem.” Tr. p. 34. Casiano, who had extensive experience identifying

      counterfeit currency, had encountered large numbers of counterfeit bills at the

      store every month. Casiano noted that some of the $100.00 bills appeared to

      have identical serial numbers. He also noted that each of the $100.00 bills had

      an unusual chemical smell and an identical mark on Benjamin Franklin’s face

      which did not appear on genuine $100.00 bills. Target’s policy was to file a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 3 of 22
      report with the Indianapolis Metropolitan Police Department (“IMPD”) if a

      transaction involving counterfeit currency totaled over $200.00. Casiano took

      all nine $100.00 bills and printed off a receipt of the transaction. He then

      notified IMPD. While on the telephone with IMPD, Casiano observed that

      Driver and Batemon were still in the store parking lot.


[6]   Three minutes after Driver and Batemon left the store, and while Casiano was

      on the telephone with IMPD, Wilbert and Mahone, who had also shopped for a

      period of approximately ten minutes, approached Carver’s checkout lane with a

      cart full of merchandise. The merchandise was similar in nature to the

      merchandise selected by Driver and Batemon. After Carver scanned the items,

      but before either man tendered payment, Mahone left the store. Wilbert

      followed Mahone outside without paying, leaving the cart and merchandise at

      the register. Wilbert went to the vehicle where Driver, Batemon, and Mahone

      were waiting, unlocked the vehicle, and took something from Mahone. Wilbert

      then re-entered the Target store and went back to Carver’s checkout lane to pay

      for his merchandise.


[7]   Casiano, who had followed the men outside, re-entered the store and observed

      the transaction between Wilbert and Carver from a distance of approximately

      thirty feet. Casiano observed Wilbert remove money from his wallet and hand

      it to Carver, who again placed the bills in the right-most till. Wilbert then

      exited the store with the merchandise. As soon as Wilbert exited the store,

      Casiano approached Carver’s register. He removed four new $100.00 bills that

      had not been in the register before Wilbert completed his transaction. The

      Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 4 of 22
       $100.00 bills bore the same flaws as the nine $100.00 bills Casiano had removed

       from the register after Driver and Batemon’s transaction. No other cash

       transactions had occurred at Carver’s register between the time Driver and

       Batemon completed their transaction and Wilbert completed his transaction.


[8]    IMPD Officer Curt Collins, who had responded to Casiano’s report of forgery

       and theft, stopped Wilbert before he rejoined Driver, Batemon, and Mahone.

       Officer Collins spoke to Casiano, who showed him the thirteen $100.00 bills

       that he had retrieved from Carver’s register. Officer Collins detained the four

       men and contacted the United States Secret Service (“Secret Service”) to report

       the recovery of the counterfeit currency.


[9]    Secret Service Special Agent Darren Brock had been investigating incidents

       involving these particular flawed, counterfeit $100.00 bills since they started

       appearing in Indianapolis in November of 2013. In light of his experience with

       these particular counterfeit bills, Special Agent Brock responded to the reported

       recovery of counterfeit currency. Special Agent Brock determined that the bills

       in question were counterfeit because they all had the identical small flaw on the

       portrait of Benjamin Franklin’s face, the paper texture was “a little bit off,” and

       there was no color shifting ink present on any of the bills. Tr. p. 142.


[10]   Special Agent Brock questioned the four men individually inside the store’s

       loss-prevention office. After the interviews were complete, Officer Collins

       arrested all four of the men. During a search incident to their arrests, Officer

       Collins recovered two additional counterfeit $100.00 bills that were in


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 5 of 22
       Batemon’s possession, one additional counterfeit $100.00 bill that was in

       Driver’s possession, and one additional counterfeit $100.00 bill that was in

       Wilbert’s possession. These counterfeit $100.00 bills bore identical flaws to

       those used by the men in completing their earlier Target transactions.


[11]   On December 16, 2013, Appellee-Plaintiff the State of Indiana (the “State”)

       charged Wilbert with Class C felony forgery, Class D felony theft, and Class D

       felony counterfeiting. Wilbert subsequently waived his right to a jury trial. The

       trial court conducted a bench trial on May 29, 2014.


[12]   During trial, Special Agent Brock testified that, as of the date of trial, the Secret

       Service had recovered “somewhere in the neighborhood of $300,000[.00]”

       worth of counterfeit $100.00 bills bearing the same flaws as the counterfeit

       $100.00 bills in question. Tr. p. 149. Special Agent Brock also testified that

       “[t]here is a lot of information on [the Secret Service] public website that can

       help someone determine what is counterfeit and what is not.” Tr. p. 146.

       Special Agent Brock further testified about how individuals can profit from

       using counterfeit currency and certain tendencies or patterns individuals using

       counterfeit currency commonly exhibit. In addition, the trial court took notice

       that the counterfeit $100.00 bills in question had a different texture than

       genuine $100.00 bills and lacked a watermark and safety strip.


[13]   Following the conclusion of the State’s presentation of evidence, Wilbert

       moved for judgment on the evidence. The trial court denied Wilbert’s motion.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 6 of 22
       After the conclusion of the presentation of the evidence, the trial court found

       Wilbert guilty as charged.


[14]   The trial court subsequently conducted a sentencing hearing, during which it

       merged Wilbert’s Class D felony counterfeiting conviction into Wilbert’s Class

       C felony forgery conviction. With respect to the Class C felony forgery

       conviction, the trial court sentenced Wilbert to 1095 days with seven days

       executed, 1088 days suspended, and two years on probation. With respect to

       the Class D felony theft conviction, the trial court sentenced Wilbert to 365

       days, all suspended and two years on probation. The trial court ordered that

       the sentences be served concurrent with one another, and granted Wilbert seven

       days of credit time. This appeal follows.



                                 Discussion and Decision
                               I. Sufficiency of the Evidence
[15]   Wilbert contends that the evidence is insufficient to sustain his convictions for

       Class C felony forgery and Class D felony theft.


                                       A. Standard of Review
[16]           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

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 7 of 22
                conviction unless no reasonable fact-finder could find the elements of
                the crime proven beyond a reasonable doubt. It is therefore not
                necessary that the evidence overcome every reasonable hypothesis of
                innocence. The evidence is sufficient if an inference may reasonably
                be drawn from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

       2002).


                                                 B. Forgery
[17]   In charging Wilbert with Class C felony forgery, the State alleged that Wilbert:

                on or about December 11, 2013, did, with intent to defraud, utter to
                Jane Carver a written instrument, that is: United States $100.00
                treasury bills, in such a manner that said instrument purported to have
                been made by the authority of the United States Department of
                Treasury [(“Department of Treasury”)], who did not give authority[.]


       Appellant’s App. p. 21. The offense of forgery is governed by Indiana Code 35-

       43-5-2, which, on the date in question, read as follows: “(b) A person who, with

       intent to defraud, makes, utters, or possesses a written instrument in such a

       manner that it purports to have been made: (1) by another person; (2) at another

       time; (3) with different provisions; or (4) by authority of one who did not give

       authority; commits forgery, a Class C felony.” Thus, in order to prove that

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 8 of 22
       Wilbert committed Class C felony forgery, the State had to prove that: on or

       about December 11, 2013, Wilbert, acting with the intent to defraud, uttered to

       Carver, United States currency, i.e., $100.00 bills, which Wilbert purported to

       have been made by the authority of the Department of Treasury, which did not

       give such authority.


[18]   Wilbert does not dispute that the counterfeit $100.00 bills were not made by or

       authorized to be made by the Department of Treasury. Rather, in challenging

       the sufficiency of the evidence to sustain his forgery conviction, Wilbert argues

       that the State failed to prove that he “uttered” the written instrument in

       question, i.e., the counterfeit currency or, alternatively, that he did so with the

       intent to defraud. The State, for its part, argues that the evidence is sufficient to

       prove that Wilbert uttered the counterfeit currency to Carver and that he did so

       with the intent to defraud.


[19]   As used in Indiana Code 35-43-5-2(b), the term “utter” is defined as “to issue,

       authenticate, transfer, publish, deliver, sell, transmit, present, or use.” The

       evidence demonstrates that at approximately 7:00 p.m. on December 11, 2013,

       Wilbert arrived at the Target store with Driver, Batemon, and Mahone.

       Approximately ten minutes after arriving at the store, Driver and Batemon went

       through a checkout lane staffed by Carver and purchased $932.99 worth of

       high-dollar merchandise using nine counterfeit $100.00 bills. Immediately after

       Driver and Batemon completed their transaction, Casiano removed the

       counterfeit bills from Carver’s register. Approximately three minutes after

       Driver and Batemon completed their transaction, Wilbert entered Carver’s

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 9 of 22
       checkout lane and purchased similar high dollar merchandise and a basketball.

       Casiano observed Wilbert hand Carver currency.


[20]   Although Casiano, who was standing approximately twenty to thirty feet away,

       was not able to see the exact denomination of the currency exchanged between

       Carver and Wilbert, security video demonstrates that Carver placed the

       currency in the farthest-right till, where higher-value bills are stored. Casiano

       immediately approached Carver’s register and removed four additional

       counterfeit $100.00 bills from the farthest-right till. Casiano testified that these

       bills had not been in the till when he removed the counterfeit bills tendered

       minutes earlier by Driver, and there had been no other cash transactions in

       Carver’s checkout lane in the intervening three minutes between the time that

       Driver and Wilbert went through the checkout lane.


[21]   Wilbert also argues that the State failed to prove that he “uttered” the

       counterfeit currency with the intent to defraud.

               Proof of intent to defraud requires a showing the defendant
               demonstrated “intent to deceive and thereby work a reliance and
               injury.” Wendling v. State, 465 N.E.2d 169, 170 (Ind. 1984) (emphasis
               added). Actual injury is not required; potential injury is enough. See
               Diallo v. State, 928 N.E.2d 250, 252 (Ind. Ct. App. 2010) (“[T]here
               must be a potential benefit to the maker or potential injury to the
               defrauded party”) (quoting Jacobs v. State, 640 N.E.2d 61, 65 (Ind. Ct.
               App. 1994) (emphasis added)).


       Bocanegra v. State, 969 N.E.2d 1026, 1028 (Ind. Ct. App. 2012) (emphases in

       original). “Intent to defraud may be proven by circumstantial evidence which

       will often include the general conduct of the defendant when presenting the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 10 of 22
       instrument for acceptance.” Miller v. State, 693 N.E.2d 602, 604 (Ind. Ct. App.

       1998) (citing Wendling, 465 N.E.2d at 170). “Because intent is a mental state,

       the fact-finder often must ‘resort to the reasonable inferences based upon an

       examination of the surrounding circumstances to determine’ whether—from the

       person’s conduct and the natural consequences therefrom—there is a showing

       or inference of the requisite criminal intent.” Diallo, 928 N.E.2d at 253 (quoting

       M.Q.M. v. State, 840 N.E.2d 441, 446 (Ind. Ct. App. 2006)). Further, although

       knowledge of the falsity of a written instrument is not a separate essential

       element of the crime of forgery, such knowledge may be relevant to show intent

       to defraud. Benefield v. State, 904 N.E.2d 239, 245 (Ind. Ct. App. 2009) (citing

       Wendling, 465 N.E.2d at 170), trans. denied.


[22]   Special Agent Brock testified that one way individuals profit from using

       counterfeit currency is to purchase something from a store, such as Target, with

       the counterfeit currency and then return the item to another store location.

       Special Agent Brock further testified that these individuals seem to exhibit

       certain tendencies or patterns when shopping with the counterfeit currency.

       Specifically, Special Agent Brock explained that:

               when you’re going to take something back to a secondary store, it
               doesn’t really matter what that item is. There’s not going to be, not
               going to spend hours shopping as we normally would to find the best
               price or the best deal. People can simply go in and pick up large ticket
               items and buy them immediately without having to shop or, or waste
               time trying to make a decision because it doesn’t matter what those
               items are. You’re just going to take it back and receive currency.
               Secondly, we, we’ve found that when there are groups of people that
               tend to do this, they tend to use the same register in one of two

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 11 of 22
               scenarios. One, you have a complicit register clerk and the people that
               are using counterfeit will go to that one person that they know or have
               a relationship with or know will accept the currency and they’ll
               purchase things from that aisle. Or when one person is known,
               whether they’re complicit or not, that they will accept the money,
               other people will use that aisle as well because they know that person
               just looked at the counterfeit and didn’t determine it as counterfeit. So
               why take a chance on somebody else determining it’s counterfeit.


       Tr. p. 157.


[23]   Again, the evidence shows that, on the date in question, Wilbert acted in

       accordance with the behavior described by Special Agent Brock. Upon arriving

       at the Target store, Driver and Batemon quickly filled their cart with over

       $900.00 worth of high-dollar items. Driver and Batemon went through

       Carver’s checkout lane and used nine counterfeit $100.00 bills to pay for their

       purchases. Similarly, Wilbert and Mahone quickly filled their cart with

       approximately $400.00 worth of high-dollar electronics and a basketball.

       Approximately three minutes after Driver and Batemon had gone through

       Carver’s line and successfully used the counterfeit $100.00 bills, Mahone left the

       store and Wilbert went through Carver’s line at the checkout and used four

       counterfeit $100.00 bills to pay for his purchases.


[24]   The counterfeit bills that were tendered to Carver bore the same flaws as the

       counterfeit bills that were recovered from Batemon’s, Driver’s, and Wilbert’s

       persons following their arrests. Specifically, the counterfeit bills each had a

       defect on the left side of Benjamin Franklin’s which made them “very

       distinguishable.” Tr. p. 116. The counterfeit bills also lacked color shifting ink


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 12 of 22
       and had a chemical smell to them that was “a bit unusual.” Tr. p. 75. In

       addition, the paper texture of each of the counterfeit bills was “a little bit off.”

       Tr. p. 142. Batemon testified that Wilbert gave him the two counterfeit $100.00

       bills that were found in his possession following his arrest the night before the

       men went to Target together. Driver testified that he won the counterfeit

       $100.00 bills during a “dice” game that he played the night before with Wilbert,

       Juan Carlton, and other men. Tr. p. 197.


[25]   Special Agent Brock also testified that there is “a lot” of information available

       on the Secret Service’s public website that is intended to help someone

       determine what is counterfeit and what is not. Tr. p. 146. Considering the

       totality of the evidence, including (1) the noticeable differences between the

       counterfeit $100.00 bills and genuine $100.00 bills, (2) Special Agent Brock’s

       testimony regarding the tendencies of people attempting to shop with

       counterfeit currency and the availability of information available to the public

       regarding how to identify counterfeit bills, and (3) Wilbert’s actions, we

       conclude that the trial court could reasonably infer that Wilbert knew the

       $100.00 bills were counterfeit when he tendered the bills to Carver. Again,

       Wilbert’s inferred knowledge is relevant to the question of whether Wilbert

       acted with the intent to defraud. See Benefield, 904 N.E.2d at 245.


[26]   In light of the above-discussed evidence, we conclude that it was reasonable for

       the trial court to infer that Wilbert “uttered” the counterfeit bills to Carver. We

       also conclude that, in light of the totality of the circumstances, it was reasonable

       for the trial court to infer that Wilbert did so with the intent to defraud. As

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 13 of 22
       such, we conclude that the evidence is sufficient to sustain Wilbert’s forgery

       conviction. Wilbert’s claim to the contrary amounts to a request for this court

       to reweigh the evidence, which, again, we will not do. See Stewart, 768 N.E.2d

       at 435.


                                                   C. Theft
[27]   In charging Wilbert with Class D felony theft, the State alleged that Wilbert “on

       or about December 11, 2013, did knowingly exert unauthorized control over

       the property, that is: electronic equipment and/or toys, of Target, with [the]

       intent to deprive Target of any part of the value or use of said property[.]”

       Appellant’s App. p. 21. The offense of theft is governed by Indiana Code 35-

       43-4-2, which, on the date in question, read as follows: “(a) A person who

       knowingly or intentionally exerts unauthorized control over property of another

       person, with intent to deprive the other person of any part of its value or use,

       commits theft, a Class D felony.” Thus, in order to prove that Wilbert

       committed Class D felony theft, the State had to prove that: on or about

       December 11, 2013, Wilbert knowingly or intentionally exerted unauthorized

       control over electronics and/or toys which belonged to Target with the intent to

       deprive Target of the value or use of said merchandise.


[28]   In challenging the sufficiency of the evidence to sustain his Class D felony theft

       conviction, Wilbert argues that because the evidence demonstrates that he paid

       for the items in question at the checkout and there is no evidence that he

       intended to “utter” counterfeit currency, he could not have possessed the

       requisite intent to exert unauthorized control over the merchandise.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 14 of 22
       Alternatively, Wilbert argues that Target, by Casiano, consented to his control

       over the merchandise because Casiano was suspicious that Wilbert might be

       using counterfeit currency to pay for the merchandise in question but

       nonetheless allowed Wilbert to complete his transaction. For its part, the State

       argues that the evidence demonstrates that Wilbert intended to “utter”

       counterfeit currency when purchasing the merchandise. The State also argues

       that Target did not consent to Wilbert’s control over the merchandise.


[29]   Again, for the reasons discussed above, based on the totality of the

       circumstances, it was reasonable for the trial court to infer that Wilbert knew

       the $100.00 bills in question were counterfeit when he tendered the counterfeit

       bills to Carver. It reasonably follows, therefore, that the trial court could

       reasonably infer that Wilbert knew that the counterfeit $100.00 bills could not

       be used as genuine payment for merchandise. The facts and reasonable

       inferences that flow therefrom are sufficient to sustain the trial court’s

       determination that Wilbert knowingly exerted unauthorized control over the

       merchandise in question.


[30]   In addition, Wilbert claims that Target consented to his taking the merchandise

       because Casiano did not act on his suspicions and stop Wilbert from

       completing his purchase using the counterfeit currency. In raising this claim,

       Wilbert relies on our opinion in Miller v. State, 693 N.E.2d 602 (Ind. Ct. App.

       1998). We note, however, that Wilbert’s reliance on Miller appears to be

       misplaced. In Miller, the defendant was convicted of forgery and theft after he

       entered into a cellular service agreement under a false name, Ralph Thompson,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 15 of 22
       Jr., and issued a $900.00 check, which was purported to be drawn on

       Thompson’s account, as a deposit. 693 N.E.2d at 604. In addition, before

       relinquishing the phones to the defendant, the cellular company ran a credit

       check on Thompson’s name. Id. at 604-05. The cellular company, however,

       never received the $900.00 because of insufficient funds in the Thompson

       checking account, which never held more than $49.00. Id. at 605. Given these

       facts, we concluded that the jury could have reasonably inferred that the

       defendant’s use of a false name in order to obtain the phones resulted in his

       control over them being unauthorized. Id. at 605. We further concluded that

       the evidence was sufficient for the jury to conclude beyond a reasonable doubt

       that the defendant had committed theft. Id.


[31]   Upon review, we agree with the State’s claim that the facts in the instant matter

       require the same result. Although Casiano may have been suspicious of

       Wilbert before Wilbert completed his transaction, Casiano did not know that

       Wilbert had used counterfeit currency as payment for the merchandise at issue

       until after Wilbert had completed his transaction. Casiano’s actions

       immediately after confirming that Wilbert had in fact tendered counterfeit

       currency as payment for his purchases—approaching Wilbert and notifying the

       police—indicates that Target did not consent to Wilbert taking control of the

       merchandise in question. Further, Casiano specifically testified that Target did

       not consent to Wilbert taking the merchandise in question from the store

       without first providing genuine payment. As such, we conclude that Target’s

       consent, to the extent given, was limited only to a situation where Wilbert paid


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 16 of 22
       for the merchandise with genuine currency and cannot reasonably be extended

       to include payment with counterfeit currency. Accordingly, we further

       conclude that the evidence is sufficient to sustain Wilbert’s Class D felony theft

       conviction. Wilbert’s claim to the contrary again amounts to a request for this

       court to reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at

       435.


                                        II. Double Jeopardy
[32]   Wilbert also contends that his convictions for both Class C felony forgery and

       Class D felony theft violate the constitutional prohibitions against double

       jeopardy.

               The Indiana Double Jeopardy Clause provides, “No person shall be
               put in jeopardy twice for the same offense.” Ind. Const. art. I, § 14.
               We analyze alleged violations of this clause pursuant to our Supreme
               Court’s opinion in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In
               Richardson, our Supreme Court 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.” 717 N.E.2d 32, 49 (Ind. 1999)
               (emphasis in original).


       Bunch v. State, 937 N.E.2d 839, 845 (Ind. Ct. App. 2010).


                                       A. Statutory Elements
[33]   Two or more offenses are the same offense in violation of Article I, Section 14

       of the Indiana Constitution if the essential statutory elements of one of the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 17 of 22
       challenged offenses also establishes the essential statutory elements of another

       challenged offense. See Bunch, 937 N.E.2d at 845 (citing Richardson, 717 N.E.2d

       at 49). We have previously concluded that the essential statutory elements of

       the crimes of forgery and theft do not create a double jeopardy issue. See

       Williams v. State, 892 N.E.2d 666, 669 (Ind. Ct. App. 2008) (citing Benberry v.

       State, 742 N.E.2d 532, 537 (Ind. Ct. App. 2001)), trans. denied. Wilbert does not

       provide any authority stating otherwise or present an argument as to why the

       essential statutory elements of forgery and theft should be found to create a

       double jeopardy issue. In light of our prior conclusions in Williams and

       Benberry, we conclude that Wilbert’s conviction for each of these crimes does

       not violate the statutory elements test set forth in Richardson.


                                          B. Actual Evidence
[34]   Under the “actual evidence” test, a defendant must demonstrate a reasonable

       possibility that the evidentiary facts used by the fact-finder to establish the

       essential elements of one offense may also have been used to establish all of the

       essential elements of a second challenged offense. Bunch, 937 N.E.2d at 845

       (citing Richardson, 717 N.E.2d at 53). Application of this test requires the court

       to identify the essential elements of each of the challenged crimes and to

       evaluate the evidence from the fact-finder’s perspective. Id. at 845-46. The

       term “reasonable possibility” “turns on a practical assessment of whether the

       jury may have latched on to exactly the same facts for both convictions.” Id. at

       846.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 18 of 22
               The language expressing the actual evidence test explicitly requires
               evaluation of whether the evidentiary facts used to establish the
               essential elements of one offense may also have been used to establish
               the essential elements of a second challenged offense. The test is not
               merely 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. In other
               words, under the Richardson actual evidence test, the Indiana Double
               Jeopardy Clause is not violated when the evidentiary facts establishing
               the essential elements of one offense also establish only one or even
               several, but not all, of the essential elements of a second offense.


       Spivey v. State, 761 N.E.2d 831, 832-33 (Ind. 2002) (emphases in original).


[35]   Again, in order to prove that Wilbert committed Class C felony forgery, the

       State presented evidence demonstrating that Wilbert, with the intent to defraud,

       uttered four counterfeit $100.00 bills to Carver. Specifically, the State presented

       evidence demonstrating the following: approximately three minutes after

       Driver and Batemon had gone through Carver’s checkout lane and used nine

       counterfeit $100.00 bills to purchase certain high-dollar items, Wilbert went

       through Carver’s checkout lane and used four counterfeit bills to purchase

       similar high-dollar items. All of the men had quickly selected the merchandise

       in question without first studying the merchandise and had acted in accordance

       with known tendencies of individuals who were attempting to “purchase”

       merchandise with counterfeit currency. In addition, the counterfeit $100.00

       bills uttered by Wilbert, Driver, and Batemon bore the same flaws as the

       counterfeit bills recovered from their persons following their arrests. These

       flaws included a “very distinguishable” defect on Benjamin Franklin’s chin, tr.

       p. 116, the lack of color shifting ink, a chemical smell that was “a bit unusual,”

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 19 of 22
       tr. p. 75, and a texture to the paper that was “a little bit off.” Tr. p. 142. We

       concluded above that this evidence was sufficient to prove that Wilbert, acting

       with the intent to defraud, uttered the counterfeit currency to Carver.


[36]   In order to prove that Wilbert committed Class D felony theft, the State

       presented evidence demonstrating that Wilbert knowingly exerted unauthorized

       control over merchandise belonging to Target with the intent to deprive Target

       of the merchandise’s use or value. Specifically, the State presented evidence

       that demonstrated that Wilbert knew the counterfeit $100.00 bills could not be

       used as genuine payment for the merchandise in question but nevertheless

       “paid” for the merchandise with the counterfeit $100.00 bills and removed the

       merchandise in question from the Target store. The State also presented

       evidence that Target had not consented to Wilbert taking the merchandise in

       question from the store without first providing genuine payment.


[37]   In addition, we believe that Wilbert’s reliance on our opinion in Williams is

       misplaced because the facts and circumstances presented in the instant matter

       are easily distinguishable from those presented in Williams. In Williams, the

       defendant was charged with and convicted of forgery and attempted theft after

       she presented a stolen and fraudulent check to the bank for deposit into her

       account. 892 N.E.2d at 667-68. Both the charged forgery and attempted theft

       counts alleged culpability and sought punishment for defendant’s attempt to

       take $1050.00 from the bank by passing a fraudulent check. Id. at 668. The

       State’s exclusive evidence for both charged offenses was the fact that defendant

       had the fraudulent check and attempted to deposit it into her account. Id. at

       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 20 of 22
       669. As such, we concluded that there was “more than ‘a reasonable

       possibility’ that the evidentiary facts used by the State to establish all of the

       essential elements of one offense were also used to establish all of the essential

       elements of the other offense[.]” Id.


[38]   Here, unlike in Williams, we cannot say that there is “more than a reasonable

       possibility” that the same facts were used to prove all of the essential elements

       of both of the charged offenses. Specifically, the facts establishing the essential

       elements of the forgery charge, i.e., Wilbert’s utterance of the counterfeit

       $100.00 bills with the intent to defraud, did not establish all of the essential

       elements of his theft charge. An essential element of the theft charge, i.e., the

       exertion of unauthorized control over another, was not complete until Wilbert

       removed the merchandise in question from the Target store without first

       providing valid payment. The State relied on different evidence to prove this

       essential element than it did to prove any of the essential elements of forgery.


[39]   Upon review, we conclude that the State presented distinct evidence to prove

       each of the charged offenses. Furthermore, even to the extent that the State

       relied on the same evidence to establish some of the essential elements of the

       charged offenses, the State did not rely on the same evidence to establish all of

       the essential elements of each of the charged offenses. As such, we conclude

       that Wilbert has failed to demonstrate that there is a reasonable possibility that

       the trial court latched on to exactly the same facts for each of the challenged

       convictions. See Spivey, 761 N.E.2d at 832-33.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 21 of 22
[40]   The judgment of the trial court is affirmed.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-533 | March 2, 2015   Page 22 of 22
