                                                                                           Jun 26 2015, 8:08 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Joseph A. Sobek                                            Gregory F. Zoeller
      Reed Earhart Lennox & Barrett                              Attorney General of Indiana
      Warsaw, Indiana
                                                                 Christina D. Pace
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      James Lee Sparks,                                         June 26, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                43A03-1409-CR-316
              v.                                                Appeal from the Kosciusko Superior
                                                                Court

      State of Indiana,                                         The Honorable Duane G. Huffer,
                                                                Judge
      Appellee-Plaintiff
                                                                Trial Court Case No.
                                                                43D01-1102-FC-80




      Mathias, Judge.

[1]   James Lee Sparks (“Sparks”) was convicted in Kosciusko Superior Court of

      Class D felony contracting. Sparks appeals and argues that the evidence is

      insufficient to support his conviction.

[2]   We reverse.



      Court of Appeals of Indiana | Opinion 43A03-1409-CR-316 | June 26, 2015                     Page 1 of 6
                                     Facts and Procedural History

[3]   In 2009, the Warsaw Veterans of Foreign Wars Post 1126 in Warsaw, Indiana

      (“the VFW”) was struggling financially. In the summer of 2009, Sparks

      approached Quartermaster Larry Criswell (“Criswell”) with the idea of starting

      a gambling operation to assist the VFW with fundraising. After Sparks learned

      that the VFW did not have a gaming license, he explained how the VFW could

      obtain a gaming license and host poker nights to raise funds for its organization.

      Sparks told Criswell that he was a dealer in Fort Wayne and had encountered a

      significant number of people from the Warsaw area who travelled to Fort

      Wayne for gaming.

[4]   Licensing regulations required dealers to be members of the VFW. Sparks was

      eligible to become a member because his father was a veteran of the Air Force.

      Sparks became a member in July of 2009.


[5]   The VFW members voted to allow Sparks to conduct poker games for one year.

      Therefore, in October 2009, the VFW filed an “Application for Annual Charity

      Game Night” with the Indiana Gaming Commission. Sparks was listed as the

      “principal operator who has overall responsibility for the operation and control

      of this charity gaming event.” Ex. Vol., State’s Ex. 4. Deb Messer (“Messer”),

      who was responsible for filing the application, falsely listed Sparks as a two-year

      member of the VFW. Messer did so because an “operator” was required to be a

      member of the VFW for at least one year.




      Court of Appeals of Indiana | Opinion 43A03-1409-CR-316 | June 26, 2015   Page 2 of 6
[6]    The VFW began to hold poker nights four nights per week. Initially, only VFW

       members were dealers at the poker nights. However, Sparks later recruited non-

       member dealers because they were more skilled at dealing. Pursuant to

       licensing regulations, dealers could not be paid. Therefore, Sparks told Messer

       to list his non-member dealers as cleaners so they could be paid. Sparks also

       instructed Messer to list him as security, so he could be paid. Licensing

       regulations prohibit operators from being paid from money generated by legal

       gambling operations.


[7]    Sparks and the VFW agreed that he would receive fifty percent of the net profit.

       Sparks also expended his own funds to renovate the room used for poker nights.

       The VFW reimbursed Sparks by giving him an extra ten percent of the profit for

       a certain period of time.


[8]    In September 2010, the VFW applied for and received a renewal of their charity

       game night license. Messer falsely listed Sparks as a three-year member on that

       application. Sparks continued to be listed as the “principal operator” of the

       charity gaming event. Ex. Vol., State’s Ex. 5.


[9]    The Commander of the VFW refused to sign the application for the charity

       license after investigating the poker night operations. He resigned from his

       position in the fall of 2010. He also reported the VFW to the Indiana Gaming

       Commission for further investigation.


[10]   As a result of that investigation, Sparks was charged in Kosciusko Superior

       Court with Class C felony corrupt business influence, Class D felony

       Court of Appeals of Indiana | Opinion 43A03-1409-CR-316 | June 26, 2015     Page 3 of 6
       professional gambling, Class D felony theft, and Class D felony contracting.

       The theft charge was dismissed shortly before the jury trial, which was held on

       July 15 and 16, 2014. Sparks was found not guilty of corrupt business influence

       and professional gambling,1 but the jury returned a guilty verdict for Class D

       felony contracting. The trial court ordered Sparks to serve an executed one and

       one-half year sentence at the Kosciusko County Jail. Sparks now appeals.

                                           Discussion and Decision

[11]   When the sufficiency of evidence is challenged, we neither reweigh the

       evidence nor judge the credibility of witnesses. Chappell v. State, 966 N.E.2d

       124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126

       (Ind. 2005)), trans. denied. Rather, we recognize the exclusive province of the

       trier of fact to weigh any conflicting evidence, and we consider only the

       probative evidence supporting the conviction and the reasonable inferences to

       be drawn therefrom. Id. If substantial evidence of probative value exists from

       which a reasonable trier of fact could have drawn the conclusion that the

       defendant was guilty of the crime charged beyond a reasonable doubt, then the

       verdict will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind.

       Ct. App. 2008).


[12]   On the date Sparks committed the offense, Class D felony contracting was

       defined as “an individual, . . . that recklessly, knowingly, or intentionally enters

       into a contract or other agreement with a qualified organization in violation of

       1
        Prior to trial, the State amended the charging information and added a count of Class D felony failure to
       appear. Sparks was found not guilty of that charge.

       Court of Appeals of Indiana | Opinion 43A03-1409-CR-316 | June 26, 2015                           Page 4 of 6
       IC 4-32.2-5-2.” Indiana Code section 4-32.2-5-2 provides in pertinent part: “A

       qualified organization may not contract or otherwise enter into an agreement

       with an individual . . . to conduct an allowable event for the benefit of the

       organization. A qualified organization shall use only operators and workers

       meeting the requirements of this chapter to manage and conduct an allowable

       event.”

[13]   To convict Sparks of Class D felony contracting, the State was required to

       prove that Sparks entered into an agreement with a “qualified organization.”

       See I.C. § 4-32.2-8-4(b). However, the State failed to prove to the jury that the

       VFW is a “qualified organization.”

[14]   Indiana Code section 4-32.2-2-24 provides in pertinent part:

               (a) “Qualified organization” refers to any of the following:
               (1) A bona fide religious, educational, senior citizens, veterans,
               or civic organization operating in Indiana that:
                        (A) operates without profit to the organization's members;
                        (B) is exempt from taxation under Section 501 of the Internal
                        Revenue Code; and
                        (C) satisfies at least one (1) of the following requirements:
                                 (i) The organization has been continuously in
                                 existence in Indiana for at least three (3) years.
                                 (ii) The organization is affiliated with a parent
                                 organization that has been in existence in Indiana
                                 for at least three (3) years.
                                 (iii) The organization has reorganized and is
                                 continuing its mission under a new name on file
                                 with the Indiana secretary of state and with a new

       Court of Appeals of Indiana | Opinion 43A03-1409-CR-316 | June 26, 2015          Page 5 of 6
                                  tax identification number after having satisfied the
                                  requirements set forth in either item (i) or (ii).

       (Emphasis added).

[15]   Our review of the record indicates that the State arguably presented evidence

       that the VFW is a “bona fide veterans organization.” However, the State was

       also required to present evidence to prove that the VFW operates without profit

       to its members and that it is exempt from taxation under Section 501 of the

       Internal Revenue Code. The record is silent on these two elements, and proof of

       both was required for conviction.2 Therefore, the State failed to prove that

       Sparks entered into an agreement with a qualified organization. For these

       reasons, we conclude that the State failed to present sufficient evidence to prove

       that Sparks committed Class D felony contracting.


[16]   Reversed.

       May, J., and Robb, J., concur.




       2
         In its brief, the State argues that it proved that the VFW was a qualified organization by citing to the
       Secretary of State’s website and to 501(c) of the Internal Revenue Code, but neither of these items was
       admitted into evidence and tendered to the jury. Moreover, the State did not request that the trial court take
       judicial notice that the VFW is a qualified organization or place the issue in front of the jury through an
       appropriate instruction. Therefore, the State failed to prove all of the required elements of the VFW’s status
       under the statute.

       Court of Appeals of Indiana | Opinion 43A03-1409-CR-316 | June 26, 2015                             Page 6 of 6
