Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose                                Apr 22 2014, 9:08 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

DARREN BEDWELL                                    GREGORY F. ZOELLER
Marion County Public Defender                     Attorney General of Indiana

                                                  KARL M. SCHARNBERG
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

COREY BATES,                                      )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )      No. 49A04-1309-CR-435
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Kurt Eisgruber, Judge
                            Cause No. 49G01-1211-FC-79373


                                        April 22, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Corey Bates appeals his conviction for Class C felony forgery. We affirm.

                                           Issue

       Bates raises one issue, which we restate as whether the trial court erred by denying

his proposed jury instruction regarding mistake of fact.

                                          Facts

       On November 15, 2012, Jacob Humphrey was working as a bank teller at the

Stock Yards Bank in Carmel when Bates attempted to cash a check made out to himself

in the amount of $2,398.03 from Brittany Construction, Inc. Humphrey asked Bates for

two forms of identification, which Bates provided. Humphrey noticed that the check

“looked a little bit off” and decided to call the issuer of the check. Tr. p. 32. When

Humphrey picked up the phone, Bates asked what he was doing. Humphrey informed

Bates that he was calling Brittany Construction, and Bates said that he “would just take

the check and cash it elsewhere.” Id. Bates took his identifications and the check and

walked away from the bank. Humphrey called his supervisor, Suzanne Bearden, at the

bank’s Binford Avenue location to inform her of the situation.

       At 2:15 p.m., Bates entered the Binford Avenue Branch of Stock Yards Bank and

attempted to cash the check. Bearden noticed that the account did not match other

Brittany Construction checks and that the account number was incorrect. Bearden made

a copy of Bates’ identification and informed Bates that she would not be able to cash the

check because it was fraudulent. Bates then took his identification and left the bank.



                                             2
       The State charged Bates with Class C felony forgery and being an habitual

offender. At his jury trial, Bates proposed the following jury instruction:

              It is an issue whether the Defendant mistakenly committed
              the acts charged.

              It is a defense that the Defendant was reasonably mistaken
              about a matter of fact if the mistake prevented the Defendant
              from committing the act charged with specific intent to
              defraud.

              The State has the burden of proving beyond a reasonable
              doubt that the Defendant was not reasonably mistaken.

App. p. 84. Bates did not testify. The trial court found no evidence to support giving the

instruction and rejected it. The jury found Bates guilty as charged. Bates now appeals.

                                           Analysis

       Bates argues that the trial court erred by denying his proposed jury instruction on

mistake of fact. Instructing a jury is left to the sound discretion of the trial court, and we

review its decision only for an abuse of discretion. Washington v. State, 997 N.E.2d 342,

345 (Ind. 2013). We undertake a three-part analysis in determining whether a trial court

has abused its discretion. Id. First, we determine whether the tendered instruction is a

correct statement of the law. Id. Second, we examine the record to determine whether

there was evidence to support the tendered instruction. Id. at 345-46. Finally, we

determine whether the substance of the tendered instruction was covered by another

instruction or instructions. Id. at 346.

       Neither Bates nor the State make any argument regarding whether the tendered

instruction is a correct statement of the law or whether the substance of the instruction


                                              3
was covered by another instruction. Bates argues only that the trial court erred by

determining that no evidence supported giving the instruction.

      Indiana Code Section 35-41-3-7 provides: “It is a defense that the person who

engaged in the prohibited conduct was reasonably mistaken about a matter of fact, if the

mistake negates the culpability required for commission of the offense.” When the State

has made a prima facie case of guilt, the burden is on the defendant to establish an

evidentiary predicate of his mistaken belief of fact. Chavers v. State, 991 N.E.2d 148,

151 (Ind. Ct. App. 2013), trans. denied. “Upon invoking mistake of fact as a defense, the

burden shifts to the defendant to satisfy three elements: ‘(1) that the mistake be honest

and reasonable; (2) that the mistake be about a matter of fact; and (3) that the mistake

negate the culpability required to commit the crime.’” Id. (quoting Potter v. State, 684

N.E.2d 1127, 1135 (Ind. 1997)). “In reviewing whether the evidence was such as to

require a mistake of fact instruction, we consider whether the evidence relevant to that

defense could, if believed by the jury, have created a reasonable doubt in the jury’s mind

that the accused had acted with the requisite mental state.” Lechner v. State, 715 N.E.2d

1285, 1286 (Ind. Ct. App. 1999), trans. denied.

      Here, the jury was presented with evidence that Bates attempted to cash the check

twice on the same day. On the first occasion, the teller noticed something wrong with the

check and told Bates that he was going to call the issuer of the check. Immediately,

Bates took his identifications and the check and said that he would cash it elsewhere.

Bates then took the check to another branch of the same bank, and another teller also

noticed that the check was fraudulent. The teller took the check, and Bates immediately

                                            4
took his identification and left the bank. The owner of Brittany Construction testified

that he did not know Bates and that Bates had never been an employee or subcontractor

of his company. In support of his argument, Bates points out that the check looked

legitimate and that he identified himself at the banks. However, the mistake of fact must

be “honest and reasonable.” Chavers, 991 N.E.2d at 151. Given Bates’s behavior at the

banks and the fact that Bates had no relationship with Brittany Construction, there was no

evidence presented of an honest and reasonable mistake. The trial court did not err by

denying Bates’s tendered jury instruction on mistake of fact.

                                       Conclusion

      The trial court did not err by denying Bates’ tendered jury instruction. We affirm.

      Affirmed.

BAKER, J., and CRONE, J., concur.




                                            5
