                                                                     FILED
                                                                Feb 22 2017, 6:52 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
David M. Payne                                             Curtis T. Hill, Jr.
Ryan & Payne                                               Attorney General of Indiana
Marion, Indiana                                            Matthew B. Mackenzie
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Bryce A. Swihart,                                          February 22, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           27A02-1605-CR-1219
        v.                                                 Appeal from the Grant Superior
                                                           Court
State of Indiana,                                          The Honorable Dana Kenworthy,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           27D02-1504-F6-118



Bailey, Judge.




Court of Appeals of Indiana | Opinion 27A02-1605-CR-1219 | February 22, 2017             Page 1 of 9
                                           Case Summary
[1]   Bryce A. Swihart (“Swihart”) was convicted by a jury of two counts of Forgery,

      as Level 6 felonies.1 He now appeals.


[2]   We affirm.



                                                     Issues
[3]   Swihart raises two issues for our review:

                   I.     Whether there was sufficient evidence to sustain the
                          convictions for Forgery; and


                  II.     Whether the trial court erred in determining Swihart’s jail
                          credit time.


                                Facts and Procedural History
[4]   On the evening of January 13, 2015, Heather Underwood (“Underwood”) was

      working as a store manager at Friendly Market on 2nd Street in Marion.

      Friendly Market, among other things, provided check cashing services. Swihart

      entered Friendly Market and presented Underwood a computer-printed check

      for $2,248.33, purporting to have been drawn on an account belonging to Elite




      1
          Ind. Code § 35-43-5-2(d)(4).


      Court of Appeals of Indiana | Opinion 27A02-1605-CR-1219 | February 22, 2017      Page 2 of 9
      Motor Sales (“Elite Motors”) in Marion, and bearing the signature of one Scott

      Miller. (Ex. 1.)


[5]   Because of the value of the check and Friendly Market’s verification

      procedures, Underwood took a photograph of the check and Swihart’s

      identification card, which stated his place of residence as Peru, Indiana, and

      contacted her supervisor to determine whether the check could be honored. An

      attempt was made to contact Elite Motors to verify the check, but the attempt

      failed because it was outside of Elite Motors’ regular hours. Underwood told

      Swihart that he could try to return the following day during regular business

      hours.


[6]   Swihart returned to Friendly Market during the day on January 14, 2015.

      Underwood said that several facets of the transaction raised “red flags” for her:

      the check was drawn on a local bank and could have been cashed there without

      paying her business’s higher fees; Swihart’s identification stated that he was

      from Peru, Indiana, but he was trying to cash the check in another town; the

      large amount of the check; Swihart’s agitation; and a conversation Swihart had

      with another customer that prompted Swihart to leave and go to a different

      store.


[7]   Based on the conversation Underwood overheard, she called to another

      Friendly Market store on 10th Street in Marion to warn that store’s manager,

      Ashokbhai Patel (“Patel”), that Swihart might try to cash the check there.

      Swihart eventually arrived at the 10th Street Friendly Market and presented the


      Court of Appeals of Indiana | Opinion 27A02-1605-CR-1219 | February 22, 2017   Page 3 of 9
       check to Patel for payment. Swihart claimed it was a payroll check, whereas on

       the prior day he had told Underwood it was a check he received after selling

       Elite Motors a vehicle. The large amount of the check also raised Patel’s

       suspicions, and he declined to honor the check.


[8]    Eventually, employees of Friendly Market successfully contacted Elite Motors’

       owner, Alan Sample (“Sample”), who denied ever having written a check to

       Swihart. Sample in turn contacted police.


[9]    On January 15, 2015, Marion Police Department Officer Mark Kilgore

       (“Officer Kilgore”) was dispatched to the Friendly Market on 2 nd Street to take

       a report. Kilgore spoke with both Sample and Underwood, obtained a copy of

       the check and Swihart’s identification card, and opened an investigation.


[10]   On April 1, 2015, the State charged Swihart with two counts of Forgery.

       Swihart was served with the arrest warrant on May 21, 2015, and was also

       arrested on a number of charges in other Indiana counties.


[11]   A jury trial was conducted on April 5, 2016, at the conclusion of which the jury

       found Swihart guilty as charged. The trial court entered judgment of conviction

       against Swihart and ordered a pre-sentence investigation.


[12]   A sentencing hearing was conducted on May 9, 2016. The trial court sentenced

       Swihart to 2 ½ years imprisonment for each count of Forgery, with the

       sentences run concurrent with one another but consecutively to a sentence




       Court of Appeals of Indiana | Opinion 27A02-1605-CR-1219 | February 22, 2017   Page 4 of 9
       imposed in an unrelated case in Madison County. The trial court granted

       Swihart jail credit time of 124 days against his sentence in this case.


[13]   This appeal ensued.



                                  Discussion and Decision
                                   Sufficiency of the Evidence
[14]   Swihart’s first contention on appeal is that there was insufficient evidence to

       support the jury’s verdicts. Our standard of review in such cases is well settled.

       We consider only the probative evidence and reasonable inferences supporting

       the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

       the credibility of witnesses or reweigh evidence. Id. We will affirm the

       conviction unless “no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726

       N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

       reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens

       v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).


[15]   Swihart was charged with two counts of Forgery, as Level 6 felonies. To obtain

       a conviction on each count, the State was required to prove beyond a

       reasonable doubt that Swihart twice, with intent to defraud, uttered a written

       instrument, check #5057, purportedly from Elite Motor Sales, made payable to

       him for the amount of $2,248.33, in such a manner that it purported to be made



       Court of Appeals of Indiana | Opinion 27A02-1605-CR-1219 | February 22, 2017   Page 5 of 9
       by the authority of one who did not give authority. See I.C. 35-43-5-2(d)(4);

       App’x Vol. 2 at 8.


[16]   Swihart’s argument on appeal is an express request that this Court reweigh the

       evidence at trial. He directly attacks the credibility of witnesses, asks that we

       disregard the evidence that favors the verdict, and argues that we should instead

       rely upon the absence of a video recording from the Friendly Market stores. 2

       We will not do so.


[17]   The evidence that favors the verdict is as follows. Underwood testified that

       Swihart, whom she did not know prior to January 13, 2015, twice presented

       himself, a computer-printed check drawn on Elite Motors’ account, and his

       identification to the 2nd Street Friendly Market location, but that she did not

       honor the check. Patel testified that Swihart attempted to do the same thing at

       the 10th Street Friendly Market location, and that he, too, did not honor the

       check. Underwood and Patel both identified Swihart in open court as having

       presented himself at the stores they managed. Further, Sample testified that his

       business has never used computer-printed checks and never used the type of

       check paper that Swihart presented, that he had never met Swihart, and that he

       had never authorized payment to Swihart of any amount of money. A copy of




       2
        Concerning Underwood’s testimony that regular customers came to the store on January 13, 2015, Swihart
       argues, “How on earth can anyone remember numerous other customers who came to the store on that
       particular day without any incident or event to trigger recollection of the event. [sic] The most honest answer
       would have been, ‘I don’t recall who else came to the store on that particular day.’” (Appellant’s Br. at 14.)
       Swihart later characterizes the testimony as “at best, shaky.” (Appellant’s Br. at 15.)

       Court of Appeals of Indiana | Opinion 27A02-1605-CR-1219 | February 22, 2017                       Page 6 of 9
       Swihart’s identification card and the check were entered into evidence. This is

       more than sufficient evidence to sustain Swihart’s convictions, and we

       accordingly affirm the convictions.3


                                                  Credit Time
[18]   We turn to Swihart’s other contention on appeal, that the trial court erred when

       it did not permit credit for time served prior to trial in one county to be applied

       to his sentence in this case.


[19]   Our prior case law has held:


                When a defendant is incarcerated on multiple unrelated charges
                at the same time, a period of confinement may be the result of
                more than one offense. Diedrich v. State, 744 N.E.2d 1004, 1005
                (Ind. Ct. App. 2001). If a person is incarcerated awaiting trial on
                more than one charge and is sentenced to concurrent terms for
                the separate crimes, he is entitled to credit time applied against
                each separate term. Stephens v. State, 735 N.E.2d 278, 284 (Ind.
                Ct. App. 2000), trans. denied. However, “[w]here a defendant is
                convicted of multiple offenses and sentenced to consecutive
                terms, the jail credit is applied against the aggregate sentence.”
                Shane v. State, 716 N.E.2d 391, 400 (Ind. 1999).


       Hall v. State, 944 N.E.2d 538, 542 (Ind. Ct. App. 2011), trans. denied.




       3
         To the extent Swihart relies upon the best evidence rule, as set forth in our Rules of Evidence, we note that
       the long-established purpose of the rule is to ensure that the best version of a particular item of evidence is
       presented—not that one item of evidence should be disregarded as being less reliable or somehow not as good
       as another. Jackson v. State, 274 Ind. 297, 301, 411 N.E.2d 609, 612 (Ind. 1980). In suggesting that the
       conviction cannot be sustained with a video recording from store security cameras, Swihart advances the
       second, rejected interpretation of the rule. We accordingly do not address this facet of Swihart’s argument.

       Court of Appeals of Indiana | Opinion 27A02-1605-CR-1219 | February 22, 2017                       Page 7 of 9
[20]   Here, the trial court granted Swihart jail credit time of 124 days, representing

       the time he was held in jail prior to trial in this cause. Swihart had been

       incarcerated for a total of 353 days prior to his sentencing hearing in this case.

       However, the difference between the 353 days of total incarceration and the 124

       days of credit time awarded in this case was reflected in credit time counted

       against his sentence in another case in Madison County; that sentence was run

       consecutive to the sentence in this case. Swihart argues that “he was entitled to

       pretrial credit time from the time his warrant was served on the current charge,

       notwithstanding the fact that some of that credit time was applied on another charge

       from Madison County.” (Appellant’s Br. at 16; emphasis added.) That is,

       despite his sentences in this case having been run consecutive to the sentence in

       his case from Madison County, Swihart requests that we determine that the

       trial court erred when it did exactly as prior case law has held: ensured that

       “‘jail credit is applied against the aggregate sentence.’” Hall, 944 N.E.2d at 542

       (quoting Shane v. State, 716 N.E.2d 391, 400 (Ind. 1999)).


[21]   Swihart provides no rationale for this beyond suggesting we consult the overall

       statutory scheme for credit time, and acknowledges that his argument is

       contrary to precedent. Yet we are bound by the decisions of the Indiana

       Supreme Court, the decisions of which are binding upon us until either it or the

       General Assembly changes the law. Grabill Cabinet Co., Inc. v. Sullivan, 919

       N.E.2d 1162, 1167 (Ind. Ct. App. 2010). To the extent Swihart seeks a change

       in the law, it is to those institutions that he should address his request.




       Court of Appeals of Indiana | Opinion 27A02-1605-CR-1219 | February 22, 2017    Page 8 of 9
[22]   Having found no error, we accordingly affirm the trial court’s determination of

       jail credit time.



                                                Conclusion
[23]   There was sufficient evidence to support Swihart’s conviction. The trial court

       did not err in determining jail credit time.


[24]   Affirmed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 27A02-1605-CR-1219 | February 22, 2017   Page 9 of 9
