                                                                         FILED
                                                                    Nov 22 2016, 8:36 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
Menes Ankh El                                              Gregory F. Zoeller
Greencastle, Indiana                                       Attorney General of Indiana
                                                           Ian McLean
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
     COURT OF APPEALS OF INDIANA
Wendell Brown a/k/a Menes                                  November 22, 2016
Ankh El,                                                   Court of Appeals Case No.
Appellant-Defendant,                                       49A05-1311-CR-550
                                                           Appeal from the Marion Superior
        v.                                                 Court
                                                           The Honorable Sheila A. Carlisle,
State of Indiana,                                          Judge
Appellee-Plaintiff.                                        Trial Court Cause No.
                                                           49G03-1204-FC-25485



Riley, Judge.




Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016                  Page 1 of 30
                                       STATEMENT OF THE CASE

[1]   Appellant-Defendant, Wendell Brown, now known as Menes Ankh-El1 (Ankh-

      El), appeals his conviction for burglary, a Class C felony, Ind. Code § 35-43-2-1

      (2011); forgery, a Class C felony, I.C. § 35-43-5-2(b) (2011); and driving while

      suspended, a Class A misdemeanor, I.C. § 9-24-19-2 (2012).


[2]   We affirm.


                                                         ISSUES

[3]   Ankh-El raises five issues on appeal, which we restate as follows:

      (1) Whether the trial court had subject matter jurisdiction over this case;

      (2) Whether the trial court denied Ankh-El the right to counsel in violation of

      the Sixth Amendment to the United States Constitution;

      (3) Whether the State presented sufficient evidence to support Ankh-El’s

      conviction for burglary, forgery, and driving while suspended beyond a

      reasonable doubt;

      (4) Whether the charging Information was defective; and

      (5) Whether the trial court committed fundamental error by exhibiting

      prejudice.




      1
        Ankh-El’s briefs and other filings indicate that his surname is “Ankh El”; however, we will use the
      hyphenated spelling as it is written on Ankh-El’s identification card, which is depicted in State’s Exhibit 13.


      Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016                           Page 2 of 30
                            FACTS AND PROCEDURAL HISTORY

[4]   In January of 2012, Bank of America acquired a foreclosed home located at

      2401 West 39th Street, Indianapolis, Marion County, Indiana (the Property),

      through a sheriff’s sale. Because Bank of America utilized Bank of New York

      Mellon to service its mortgage rights, Bank of New York Mellon is also listed

      on the Sheriff’s Deed. The Sheriff’s Deed was stamped by the Marion County

      Assessor on February 10, 2012, and filed with the Marion County Recorder on

      February 13, 2012.


[5]   Shortly after procuring the Property, Bank of America engaged Integrated Asset

      Services “to manage, market, and sell the [P]roperty.” (Tr. p. 148). Integrated

      Asset Services assigned the Property listing to one of its real estate brokers,

      Mark Forcum (Forcum). It was Forcum’s responsibility to prepare, market, and

      sell the Property. Under ideal circumstances, the Property would have

      been valued between $700,000 and $800,000; however, given its condition

      following the foreclosure, Forcum agreed to list the Property for $325,000.

      Pursuant to his obligations, in addition to showing the Property to prospective

      buyers, Forcum paid the utility bills; he ensured that the lawn was mowed and

      the Property was otherwise maintained; and he conducted weekly inspections,

      during which he verified that the house was secure.


[6]   On April 16, 2012, Forcum drove past the Property and noticed that a red flag

      was hanging from the gate at the end of the driveway. The next day, he

      returned to the Property to conduct his weekly inspection. Upon arrival, he

      observed a lawn mower and mowing trailer in the driveway and initially

      Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 3 of 30
      assumed that the regular mowing crew was working on the yard. However, he

      grew concerned when he noticed that two men were standing on a second-floor

      balcony because the mowing crew would have no reason to enter the residence.

      When Forcum exited his vehicle, one of the men on the balcony—Ankh-El—

      inquired into Forcum’s presence. Forcum explained that he is a real estate

      broker, and, in response, Ankh-El identified himself as the new owner of the

      Property. Knowing this could not be the case given his exclusive listing rights,

      Forcum returned to his vehicle and drove away from the Property while calling

      the Indianapolis Metropolitan Police Department (IMPD).


[7]   Forcum waited at the end of the long driveway until IMPD officers arrived.

      Forcum apprised the officers of his concern that there was an individual

      squatting on the Property, and he provided the officers with his credentials and

      a copy of the listing agreement which identified him as the agent responsible for

      selling the Property. Thereafter, the officers proceeded down the driveway and

      observed Ankh-El and another male standing outside. The officers identified

      themselves and explained the nature of their visit. Ankh-El informed the

      officers that he had recently purchased the property for $250,000, and he acted

      perplexed as to why there would be any indication that the Property was still

      listed for sale. When asked for proof of his ownership, Ankh-El stated that he

      had such documentation at another location, so he locked the doors to the

      house and drove away from the Property while the officers and Forcum waited

      for him to return. During Ankh-El’s absence, one of the officers contacted the

      Marion County Assessor’s Office, which reported that the current owner of


      Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 4 of 30
      record for the Property was Bank of New York Mellon. A short while later,

      Ankh-El drove up to the Property on a black Yamaha motorcycle. Ankh-El

      provided the officers with an identification card with his name and photograph,

      which identified him as a “Moorish National” and listed his birthplace as

      Marion County, Indiana. (State’s Exh. 13). Ankh-El admitted that he had

      created the identification card himself and explained some of the history of the

      Moorish people; specifically, he “talked about [how] the laws of [the] land [do

      not] apply to Moorish Nationals.” (Tr. p. 216).


[8]   In addition, Ankh-El tendered a document to the officers entitled

      “FREEHOLD IN DEED.” (State’s Exh. 1). According to Ankh-El, this deed,

      which he had also created himself, evidenced his ownership rights in the

      Property. The homemade deed, stated, in part:

              I, Menes Ankh-El, being in propria persona, sui juris, am a Free
              Moorish American National of Al Moroc (America) North,
              Central, South America and Adjoining Islands anciently referred
              to as Amexem, and I am part and parcel to the Land of my
              ancient Foremothers, and Fathers (Moabites/Moroccans) by
              birthright and inheritance as an aboriginal, indigenous and de
              jure natural citizen of the Continental United States of America
              Republic. Therefore, by the power and authority vested in me by
              right of birth and right of soil, retaining all substantive
              unalienable rights and immunities in the Organic United States
              of America Republic Constitution, I, Menes Ankh-El, am
              claiming FREEHOLD IN DEED of the abandoned and
              unoccupied [Property].


      (State’s Exh. 1). Immediately preceding his signature, the Freehold in Deed

      contained a declaration that “I, Menes Ankh-El, am NOT a citizen governed
      Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 5 of 30
       under Naturalization or Immigration, NOT a 14th Amendment ‘Person’ or

       ‘U.S. Citizen’, NOT subject to statutory, colorable law jurisdiction of the United

       States in the corporate monopoly of the federal, State, local, and

       municipal governments(s) [sic].” (State’s Exh. 1). Ankh-El filed his Freehold in

       Deed with the Marion County Recorder on March 28, 2012.


[9]    Based on Ankh-El’s self-created documents, the officers determined that he was

       unlawfully occupying the Property and placed him under arrest. A subsequent

       inspection of the Property revealed that Ankh-El, after gaining access to the

       house, had changed all of the locks and had mounted multiple “No

       Trespassing” signs. (State’s Exh. 6). He had also moved a number of his

       personal belongings, including a set of bolt cutters, into a third floor bedroom,

       and his laptop was plugged into an outlet. At the jail, Ankh-El was

       fingerprinted, and his fingerprints matched the criminal record of Wendell

       Brown.2 A review of Wendell Brown’s record from the Bureau of Motor

       Vehicles (BMV) revealed that his driver’s license was suspended.


[10]   On August 30, 2012, the State filed an amended Information, charging Ankh-El

       (i.e., Wendell Brown) with Count I, burglary, a Class C felony, I.C. § 35-43-2-1

       (2011); Count II, forgery, a Class C felony, I.C. § 35-43-5-2(b) (2011); Count

       III, theft, a Class D felony, I.C. § 35-43-4-2(a) (2011); Count IV, trespass, a




       2
         There is no indication in the record as to whether Ankh-El ever legally changed his name from Wendell
       Brown. Prior to trial, Ankh-El conceded that he was “formerly known as Wendell Brown,” but he disagreed
       with any indication that the name Ankh-El is an also known as moniker because his name is “[j]ust Menes
       Ankh-El.” (Tr. pp. 4-5).


       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016                  Page 6 of 30
       Class A misdemeanor, I.C. § 35-43-2-2(a)(4) (2011); and Count V, driving while

       suspended, a Class A misdemeanor, I.C. § 9-24-19-2 (2012).


[11]   After the charges were filed, Ankh-El elected to represent himself and began

       filing a multitude of motions. Several of his motions sought dismissal based on

       the claim that the trial court lacked both personal and subject matter

       jurisdiction. Specifically, Ankh-El asserted that the trial court lacked authority

       under the United States Constitution to hear the case, and he further insisted

       that he is neither a citizen of the United States or Indiana, nor a party to a

       contract with the State of Indiana. Essentially, he insisted that as a “Private

       Moorish American National Man,” he is not subject to the power of the courts

       or the laws of this state. (Appellant’s App. p. 28). Ankh-El also sought

       dismissal due to lack of evidence, arguing, in part, that he was rightfully entitled

       to claim the Property under the doctrine of adverse possession. Additionally,

       Ankh-El claimed that the trial court violated his right to assistance of counsel

       and the Vienna Convention by refusing to allow his “Consuls” to address the

       trial court on his behalf. (Appellant’s App. p. 27). He also accused the trial

       court of committing perjury, and he alleged that the trial court had exhibited

       extreme prejudice by failing to rule on motions and by preventing the State

       from responding to his motions. In a few motions, Ankh-El alleged that he was

       entitled to a default judgment because the trial court and the State had failed to

       respond to his various motions regarding the trial court’s lack of jurisdiction, as

       well as other accusations by Ankh-El against the State and trial court, including

       treason, fraud and “[b]arratry.” (Appellant’s App. p. 30). Furthermore, Ankh-


       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 7 of 30
       El challenged the validity of the charging Information, positing that the

       Information does not clearly identify the owner of the Property and that it

       includes other vague references. Ankh-El additionally argued that the

       Information failed to properly identify him because he has “a Nationality which

       is Moorish American [and] for the [I]nformation to designate [him] as a black

       male and as WENDELL BROWN© [sic] is denationalization and violation of

       the 13th Amendment prohibitions of slavery and involuntary servitude.”

       (Appellant’s App. p. 42). While the trial court denied several of these motions,

       the record is unclear as to whether it actually issued rulings as to the rest.


[12]   On July 24, 2013, the trial court conducted a jury trial. At the close of the

       evidence, the jury returned a guilty verdict on all Counts. On August 2, 2013,

       the trial court held a sentencing hearing. The trial court merged Count III, theft

       as a Class D felony, and Count IV, trespass as a Class A misdemeanor, into

       Count I and entered a judgment of conviction on Count I, burglary as a Class C

       felony; Count II, forgery as a Class C felony; and Count V, driving while

       suspended as a Class A misdemeanor. For Count I and Count II, the trial court

       imposed concurrent sentences of four years, with two years executed through

       Community Corrections and two years suspended with one year of probation

       for each Count. As to Count V, the trial court ordered Ankh-El to serve a one-

       year term in Community Corrections, concurrent with his sentence for Counts I

       and II.


[13]   On November 1, 2013, Ankh-El filed his Notice of Appeal. On May 12, 2014,

       this court dismissed Ankh-El’s appeal with prejudice because it was not timely

       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 8 of 30
       filed. On June 2, 2014, Ankh-El filed a petition for rehearing, which we denied

       on June 23, 2014. On August 26, 2014, Ankh-El filed a Demand for

       Acceptance of Belated Petition to Transfer, which the Indiana Supreme Court

       granted on September 12, 2014. On May 26, 2015, the supreme court granted

       Ankh-El’s petition to transfer. In its order, the supreme court noted that Ankh-

       El had filed a response with our court to show cause why his appeal should not

       have been dismissed due to an untimely Notice of Appeal, but the response was

       incorrectly filed under a different appeal initiated by Ankh-El and, therefore,

       was likely not reviewed. Moreover, Ankh-El submitted an order from the trial

       court that extended the time for filing his Notice of Appeal to November 2,

       2013, likely in accordance with Indiana Trial Rule 72(E); thus, his November 1,

       2013 Notice of Appeal was actually timely. Accordingly, the supreme court

       vacated our dismissal of Ankh-El’s appeal and our denial of his petition for

       rehearing and remanded the case to our court for further proceedings.

       Additional facts will be provided as necessary.


                                      DISCUSSION AND DECISION

                                                       I. Jurisdiction

[14]   Ankh-El first claims that his conviction must be vacated because the trial court

       lacked subject matter jurisdiction.3 “Subject-matter jurisdiction is ‘the power to



       3
         We note that Ankh-El has waived any contention that the trial court lacked personal jurisdiction because,
       although raised in his pre-trial motions, he has failed to raise the issue on appeal. See Ind. Appellate Rule
       46(A)(8)(a). Regardless, it is clear that the trial court did have personal jurisdiction over Ankh-El because his
       crimes occurred in Marion County, Indiana. See Taylor-Bey v. State, 53 N.E.3d 1230, 1232 (Ind. Ct. App.
       2016).

       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016                           Page 9 of 30
       hear and determine cases of the general class to which any particular

       proceeding belongs.’” Taylor-Bey, 53 N.E.3d at 1231 (quoting K.S. v. State, 849

       N.E.2d 538, 540 (Ind. 2006)). “An Indiana court obtains subject-matter

       jurisdiction through the Indiana Constitution or a statute.” Id. Pursuant to

       Indiana statute, all standard and non-standard superior courts have “original

       and concurrent jurisdiction in all civil cases and in all criminal cases.” I.C. §§

       33-29-1-1.5(1); -1.5-2(1). In this case, Ankh-El’s crimes were alleged to have

       occurred in Marion County, Indiana, and the State filed charges in the Marion

       Superior Court.

[15]   According to Ankh-El, the United States Constitution confers authority to hear

       a case in which a state is named as a party solely to the United States Supreme

       Court. Because the present case was “brought in the name of STATE OF

       INDIANA (i.e. STATE OF INDIANA v. WENDELL BROWN),” Ankh-El

       insists that the Indiana Code’s bestowal of “original and concurrent

       jurisdiction” upon Marion County courts is “repugnant to the U.S. Constitution

       (1787/1791).” (Appellant’s Br. p. 12) (Italics added). Additionally, Ankh-El

       contends that “[a]s an Aboriginal Moorish American National and descendant

       of Africans (Moroccans) born in America, [he is] not and cannot be a state or

       U.S. citizen” and is therefore not subject to the authority of Indiana courts.

       (Appellant’s Br. p. 12). In fact, Ankh-El argues that he is “a member of the

       ‘sovereignty’” and is “not bound by general words in statutes.” (Appellant’s Br.

       p. 15). Instead, “[a]s a sentient being,” he claims that he is “governed by

       common law and [has] the natural right to do anything which [his] inclinations


       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 10 of 30
       may suggest, if it be not evil in itself, and in no way impairs the rights of

       others.” (Appellant’s Br. p. 14). We find no merit in Ankh-El’s rambling

       contentions.


[16]   The State aptly points out that “[i]t is well established that states are separate

       sovereigns with respect to the federal government ‘because each State’s power

       to prosecute is derived from its own ‘inherent sovereignty,’ not from the Federal

       Government.’” Jackson v. State, 563 N.E.2d 1310, 1311 (Ind. Ct. App. 1990).

       Thus, the power vested in Indiana’s superior courts by Indiana statute does not

       run afoul of the United States Constitution. As support for his assertion that he

       is impervious to the jurisdiction of Indiana’s courts based on his lack of

       citizenship, Ankh-El relies primarily on Dred Scott v. Sandford, 60 U.S. 393, 406,

       427 (1856), superseded by constitutional amendment, U.S. CONST. amend XIV,

       wherein the United States Supreme Court determined that the plaintiff, a

       descendant of African slaves, could not be considered a United States citizen

       such that the court lacked the jurisdiction to resolve his civil case. However, we

       find Ankh-El’s reliance on the Dred Scott case entirely misplaced and

       unpersuasive in light of the fact that the Fourteenth Amendment overturned

       Dred Scott in 1868.


[17]   The Fourteenth Amendment to the United States Constitution provides that

       “[a]ll persons born or naturalized in the United States, and subject to the

       jurisdiction thereof, are citizens of the United States and of the State wherein

       they reside.” U.S. CONST. art. XIV § 1. Here, there is no dispute that Ankh-El

       was born in Marion County, Indiana, and he was residing there at the time he

       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 11 of 30
       committed the present offenses, which were also committed in Marion County.

       Moreover, Ankh-El’s citizenship is irrelevant to the determination of whether a

       trial court has authority, by constitution or statute, to hear a certain type of

       case. See Taylor-Bey, 53 N.E.3d at 1232. Rather, by the explicit authority of

       Indiana statute, the Marion Superior Court was vested with subject matter

       jurisdiction over Ankh-El’s criminal case. See I.C. §§ 33-29-1-1.5(1); -1.5-2(1).


                                               II. Right to Counsel

[18]   Ankh-El next claims that he was denied the right to counsel in violation of the

       Sixth Amendment to the United States Constitution. “In all criminal

       prosecutions, the accused shall enjoy the right . . . to have the Assistance of

       Counsel for his defence.” U.S. CONST. amend VI. The right to counsel “is

       essential to the fairness of a criminal proceeding.” Drake v. State, 895 N.E.2d

       389, 392 (Ind. Ct. App. 2008). In this case, Ankh-El asserts that the trial court

       denied his request to be represented by his “Consuls from the Moorish

       American Nation” due to the fact that “they did not have a license to practice

       law[] and that they were not members of the B.A.R. [sic].” (Appellant’s Br. p.

       16).


[19]   We note that the record is devoid of any proceedings regarding Ankh-El’s

       request to be represented by Moorish Consuls and the trial court’s denial

       thereof. At some point, Ankh-El elected to proceed pro se, and the trial court

       appointed standby counsel to assist him with procedural matters during the

       trial. As the State points out, Ankh-El has waived his argument for appeal by



       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 12 of 30
       failing to cite to the record. See App. R. 46(A)(8)(a). Nevertheless, we elect to

       address Ankh-El’s claim.4


[20]   Our courts have held that “[t]he Sixth Amendment right to counsel

       encompasses a right to counsel of one’s choice.” Latta v. State, 743 N.E.2d

       1121, 1127 (Ind. 2001) (citing Powell v. Alabama, 287 U.S. 45, 53 (1932)). “The

       right to counsel of choice has been described as an ‘essential component’ of the

       Sixth Amendment right to counsel, and ‘a defendant should be afforded a fair

       opportunity to secure counsel of his own choice.’” Barham v. State, 641 N.E.2d

       79, 82 (Ind. Ct. App. 1994) (citation omitted) (quoting Powell, 287 U.S. at 53).

       “A conviction attained when a court unreasonably or arbitrarily interferes with

       an accused[’s] right to retain counsel of choice . . . cannot stand, irrespective of

       whether the defendant has been prejudiced.” Id. (alterations in original)

       (internal quotation marks omitted).


[21]   Here, Ankh-El asserts that the trial court denied his request to retain “Consuls

       from the Moorish American Nation” because they did not have licenses to

       practice law in Indiana. (Appellant’s Br. p. 16). Ankh-El now argues that this

       denial of his choice of counsel amounted to a violation of due process. In

       particular, he asserts that “[t]he practice of law cannot be licensed by any




       4
         During the pendency of this appeal, Ankh-El filed several motions requesting that our court order the trial
       court to provide him with transcripts of the pre-trial proceedings. We directed the trial court to send Ankh-El
       a free copy of the clerk’s record and transcript, and on January 8, 2016, the trial court filed its Notice of
       Compliance. Thereafter, Ankh-El filed additional motions indicating that he had not yet received pre-trial
       transcripts, which our court denied based on the trial court’s Notice of Compliance.


       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016                       Page 13 of 30
       state/STATE.” (Appellant’s Br. p. 16). Instead, without proper citation to

       authority, Ankh-El insists that a licensed attorney may be certified by the

       supreme court solely to “represent wards of the court, infants and persons of

       unsound mind, whom they owe no allegiance should a conflict arise between

       their client and the interest of the courts. Nowhere can there be found a

       competent attorney that is able to execute the proper remedy without

       embarrassing the court.” (Appellant’s Br. pp. 16-17) (citation omitted).


[22]   In addition, relying on Gideon v. Wainright, 372 U.S. 335 (1963), Ankh-El

       argues that “[l]itigants may be assisted by unlicensed laymen during judicial

       proceedings.” (Appellant’s Br. p. 16). We, however, find nothing in Gideon to

       support such an assertion. Rather, the Gideon Court established that the Sixth

       Amendment right to counsel is a fundamental right that is essential to a fair

       trial, and, as such, it is applicable to the states through the Fourteenth

       Amendment. Gideon, 372 U.S. at 342-43. Moreover, contrary to Ankh-El’s

       claim, the State of Indiana absolutely governs the practice of law. In fact, the

       Indiana Supreme Court “has exclusive jurisdiction to . . . admit attorneys to

       practice law in all courts of the state.” I.C. § 33-24-1-2(b)(1); see IND. CONST.

       art. 7, § 4 (granting the supreme court original jurisdiction over, in part, the

       admission to the practice of law and the unauthorized practice of law).

       Accordingly, the supreme court has promulgated an extensive list of rules

       governing the admission and discipline of attorneys, such as the requirement

       that “[n]o person shall be licensed to practice law in this state who has not




       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 14 of 30
       taken and passed a Bar examination.” Ind. Admission & Discipline Rule 17, §

       1.


[23]   The Indiana Supreme Court’s “authority to set standards for and supervise the

       practice of law emanates from the need to protect the public from those who are

       not properly licensed or otherwise qualified to act as attorneys.” State ex rel. Ind.

       State Bar Ass’n v. Northouse, 848 N.E.2d 668, 671 (Ind. 2006). As our supreme

       court has stated, “[t]he practice of law without a license is not a ‘victimless

       crime’ because the legal interests of people assisted by those who are not

       qualified to act as attorneys can be irreparably damaged.” State ex rel. Ind. State

       Bar Ass’n v. Diaz, 838 N.E.2d 433, 443 (Ind. 2005). As such,


               [a] person who:
               (1) professes to be a practicing attorney;
               (2) conducts the trial of a case in a court in Indiana; or
               (3) engages in the business of a practicing lawyer;
               without first having been admitted as an attorney by the supreme
               court commits a Class B misdemeanor.


       I.C. § 33-43-2-1. Accordingly, while Ankh-El had every right to privately retain

       a licensed lawyer of his choosing, he had no right to demand the assistance of

       representatives who are not legally permitted to practice law in Indiana. Thus,

       the trial court did not violate Ankh-El’s Sixth Amendment right to counsel.


                                           III. Sufficiency of Evidence

[24]   Ankh-El next challenges the probable cause supporting the charges against him.

       However, we agree with the State that this issue is more appropriately framed

       as whether the State presented sufficient evidence to support Ankh-El’s
       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 15 of 30
       conviction for burglary, forgery, and driving while suspended beyond a

       reasonable doubt. When reviewing a claim of insufficient evidence, our court

       will only consider the evidence that is most favorable to the verdict, along with

       any reasonable inferences derived from that evidence. Freshwater v. State, 853

       N.E.2d 941, 942 (Ind. 2006). We do not reweigh evidence or assess the

       credibility of witnesses. Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012). “If a

       reasonable finder of fact could determine from the evidence that the defendant

       was guilty beyond a reasonable doubt, then we will uphold the verdict.” Id.

       (quoting Freshwater, 853 N.E.2d at 942).5


                                                      A. Burglary

[25]   “A person who breaks and enters the building or structure of another person,

       with intent to commit a felony in it, commits burglary, a Class C felony.” I.C. §

       35-43-2-1 (2011). In this case, there is no dispute that Ankh-El broke into and

       entered the Property. Although Ankh-El posits that the Property was owned by

       Bank of New York Mellon, rather than Bank of America, he clearly concedes

       that the Property was owned by “another person” as required by Indiana Code

       section 35-43-2-1. See I.C. § 35-31.5-2-234 (defining “person” to include




       5
         Ankh-El devotes a significant portion of his argument focusing on whether Forcum had any contractual
       right to sell the Property, as well as on the actual ownership of the Property given the complex relationship
       between Bank of America and Bank of New York Mellon. We find that these issues are entirely irrelevant to
       whether Ankh-El committed the charged offenses. Similarly, Ankh-El’s assertion that Forcum lacked
       standing to file a complaint evidences a fundamental misunderstanding of the difference between civil law and
       criminal law. Here, the State—not Forcum—filed charges against Ankh-El, alleging that he violated
       Indiana’s criminal law. This is not a situation where Forcum filed a civil lawsuit against Ankh-El.


       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016                     Page 16 of 30
       corporations). On appeal, Ankh-El contends that there is no evidence that he

       possessed the intent to commit a felony therein.


[26]   “To establish the intent to commit a felony element of a burglary charge, the

       State must prove beyond a reasonable doubt the defendant’s intent to commit a

       felony specified in the charge.” Freshwater, 853 N.E.2d at 942. The “[i]ntent to

       commit a given felony may be inferred from the circumstances, but some fact in

       evidence must point to an intent to commit a specific felony.” Id. (alteration in

       original) (quoting Justice v. State, 530 N.E.2d 295, 297 (Ind. 1988)). Here, the

       Information alleged that Ankh-El broke into and entered the Property “with

       intent to commit the felony of theft therein; that is, with intent to knowingly

       exert unauthorized control over the property of [Forcum] and/or Bank of New

       America and/or Bank of New York, with intent to deprive [Forcum] and/or

       Bank of America and/or Bank of New York of any part of its value or use.”

       (Appellant’s App. p. 5).


[27]   Ankh-El asserts that there is no evidence that he intended to commit a felony

       because the evidence establishes that he “was actually living on the [P]roperty”

       and “that nothing was out of place.” (Appellant’s Br. pp. 21-22). He indicates

       that this case is analogous to Easton v. State, 228 N.E.2d 6, 9, 13 (Ind. 1967), in

       which our supreme court found insufficient evidence of felonious intent to

       sustain a burglary conviction where the defendant entered a woman’s

       apartment by breaking the lock and, upon the owner’s return, was discovered

       sitting on the couch watching television; the defendant offered to pay for the

       lock as he left and nothing was stolen. We, however, find that there is ample

       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 17 of 30
       evidence of Ankh-El’s intent to commit a felony. Unlike the defendant in

       Easton, who left the premises without disturbing anything inside the apartment,

       Ankh-El had no intention of vacating the Property. Rather, the evidence

       establishes that Ankh-El broke into the house with the intent to use the house as

       his personal residence, thereby depriving the Property’s rightful owner(s) of its

       value or use. See I.C. § 35-43-4-2(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,” which is

       a Class C felony if the fair market value of the property is at least $100,000.). In

       particular, Ankh-El informed Forcum and the IMPD officers that he was the

       owner of the Property, which he had recently purchased for $250,000. Ankh-El

       created a deed purporting to claim the Property as his own, and he filed this

       homemade document with the Marion County Recorder. He also hung a flag

       on the front gate, changed all of the locks, and posted multiple signs warning

       against trespassing. In addition, Ankh-El moved a number of his personal

       belongings into the residence and garage, including clothing, a lawnmower, and

       a laptop. Thus, it is apparent that Ankh-El intended to steal the Property from

       its owner(s).


[28]   Nevertheless, Ankh-El insists that his burglary conviction cannot stand because

       he was legally entitled to claim the Property under the doctrine of adverse

       possession. “‘[T]he doctrine of adverse possession entitles a person without

       title to obtain ownership to a parcel of land upon clear and convincing proof of

       control, intent, notice, and duration.’” Altevogt v. Brand, 963 N.E.2d 1146, 1151


       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 18 of 30
       (Ind. Ct. App. 2012) (quoting Fraley v. Minger, 829 N.E.2d 476, 485 (Ind.

       2005)). In particular, the claimant: “must exercise a degree of use and control

       over the parcel that is normal and customary considering the characteristics of

       the land”; “must demonstrate intent to claim full ownership of the tract superior

       to the rights of all others, particularly the legal owner”; must undertake actions

       “sufficient to give actual or constructive notice to the legal owner of the

       claimant’s intent and exclusive control”; and “must satisfy each of these

       elements continuously” for a period of ten years. Id. at 1152 (citing Fraley, 829

       N.E.2d at). Furthermore, a claimant may not establish title by adverse

       possession unless he or she “pays and discharges all taxes and special

       assessments that the adverse possessor or claimant reasonably believes in good

       faith to be due on the land or real estate during the period the adverse possessor

       or claimant claims to have possessed the land or real estate adversely.” I.C. §

       32-21-7-1.


[29]   Ankh-El contends that he began occupying the Property on February 15, 2012.

       He also posits that his “possession of the [P]roperty was open and notorious, as

       [his] flag was flown from the gate which [he] had locked; [he] had changed all

       of the l[o]cks to all doors and [he] was maintaining the [P]roperty openly

       (repairs, landscaping).” (Appellant’s Br. p. 19). Accordingly, Ankh-El now

       argues that his rights were superior to those of Forcum or the banks because his

       “physical control of the [P]roperty was sufficient to form basis for title.”

       (Appellant’s Br. p. 20). We find no merit in Ankh-El’s claim.




       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 19 of 30
[30]   Failure to establish even one of the adverse possession elements by clear and

       convincing evidence defeats the claim. Altevogt, 963 N.E.2d at 1152. Ankh-El

       asserts that he took possession of the Property on February 15, 2012; however,

       Forcum testified that he had been conducting weekly inspections of the

       Property, and prior to the week of April 17, 2012, the house was empty and

       secure. Regardless, even accepting Ankh-El’s date of February 15, 2012, his

       adverse occupancy of the Property barely exceeded two months before he was

       arrested and charged with burglary and trespass. As he failed to satisfy the

       elements of adverse possession for a continuous ten-year period, Ankh-El has

       no claim to the title of the Property. Therefore, we conclude that the State

       presented sufficient evidence to support Ankh-El’s conviction for burglary as a

       Class C felony.


                                                     B. Forgery

[31]   “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 . . . with

       different provisions[] or . . . by authority of one who did not give authority[]

       commits forgery, a Class C felony.” I.C. § 35-43-5-2(b)(3)-(4) (2011). “An

       intent to defraud involves an intent to deceive and thereby work a reliance and

       an injury.” Diallo v. State, 928 N.E.2d 250, 252 (Ind. Ct. App. 2010). Thus,

       “[t]here must be a potential benefit to the maker or potential injury to the

       defrauded party.” Id. at 253. As “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


       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 20 of 30
       and the natural consequences therefrom—there is a showing or inference of the

       requisite criminal intent.” Id.


[32]   In this case, the State alleged that Ankh-El, with an intent to defraud, made a

       Freehold in Deed and uttered the same to the IMPD officers “in such a manner

       that it purported to have been made with different provisions and/or purported

       to have been made by the authority of [Forcum] and/or Bank of America

       and/or Bank of New York, who did not give such authority.” (Appellant’s

       App. p. 6). On appeal, Ankh-El contends that he filed the Freehold in Deed to

       notify the owner that he was “taking possession of the property by right” but

       that it “does not purport to be a grant of property.” (Appellant’s Br. p. 20). He

       asserts that his document cannot constitute a forgery because it does not “list

       the record owner or someone else as a grantor of the [P]roperty.” (Appellant’s

       Br. p. 20). Again, we are unpersuaded by Ankh-El’s argument.


[33]   Ankh-El created and provided the IMPD officers with a fictitious deed, which

       purported to give him ownership rights to the Property. In conjunction with

       tendering his Freehold in Deed to the officers, Ankh-El claimed that he had

       recently purchased the Property for $250,000; thus, he relied on the deed as

       proof of his lawful ownership in order to deceive the officers. See Malcomson v.

       State, 391 N.E.2d 633, 637 (Ind. Ct. App. 1979). We find that this satisfies the

       forgery statute and therefore affirm his conviction.




       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 21 of 30
                                          C. Driving While Suspended


[34]           A person who:
               (1) knows that the person’s driving privilege, license, or permit is
               suspended or revoked; and
               (2) operates a motor vehicle upon a highway less than ten (10)
               years after the date on which judgment was entered against the
               person for a prior unrelated [violation for driving while
               suspended];
               commits a Class A misdemeanor.


       I.C. § 9-24-19-2 (2012).


[35]   In challenging the sufficiency of the evidence to support his conviction for

       driving while suspended, Ankh-El does not contest that his driver’s license was

       suspended at the time the IMPD officers observed him driving his Yamaha

       motorcycle; nor does he argue that the State failed to establish that he had a

       prior violation for driving while suspended within the preceding ten years.

       Instead, Ankh-El simply insists that because he “was not operating a vehicle in

       a commercial capacity, [he is] not required to have a driver’s license.”

       (Appellant’s Br. p. 22). He also claims that the State has no authority to deny

       him the right to travel. Ankh-El further asserts, without citing to any authority,

       that in order to support a conviction for driving while suspended, the officers

       were required to make a valid traffic stop. We disagree.


[36]   The driving while suspended statute does not require that an officer discover

       that a driver’s license is suspended in the course of a valid traffic stop. It is

       sufficient that the IMPD officers observed Ankh-El operating his motorcycle,


       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 22 of 30
         and BMV records later confirmed that Ankh-El’s driver’s license was suspended

         at the time and had been suspended within the last ten years. Moreover, while

         this court has previously acknowledged that “a fundamental right to travel”

         exists, “neither this court, nor our supreme court, nor the United States

         Supreme Court has ever held that there exists a fundamental right to drive a

         motor vehicle.” Terpstra v. State, 529 N.E.2d 839, 847 (Ind. Ct. App. 1988).

         Rather, our General Assembly “has a duty to enact legislation providing for the

         general welfare and safety of the people of this state.” Id. at 846. The statutes

         governing driving privileges “promote highway safety[,]” which “is a

         compelling state interest.” Id. “The statute concerning driver’s licenses ensures

         a driver’s ability to maneuver a motor vehicle on public roads in Indiana, thus

         promoting public safety.” Id. Accordingly, the General Assembly had the

         authority to enact laws requiring valid driver’s licenses as a condition to

         operating a motor vehicle on public roads, and if Ankh-El sought to avail

         himself of the privilege of operating a vehicle in this state, he was obligated to

         comply with Indiana law. Id. at 847. There is sufficient evidence to support

         Ankh-El’s conviction for driving while suspended as a Class A misdemeanor.

                                              IV. Charging Information

[37]   Ankh-El next claims that his conviction must be reversed because the charging

         Information was fatally defective. Indiana law provides that “all prosecutions

         of crimes shall be instituted by the filing of an information or indictment by the

         prosecuting attorney, in a court with jurisdiction over the crime charged.” I.C.

         § 35-34-1-1(b). Indiana Code section 35-34-1-2 enumerates the criteria for the


         Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 23 of 30
       content of an information. “The proper method to challenge deficiencies in a

       charging information is to file a motion to dismiss the information, no later

       than twenty days before the omnibus date.” Miller v. State, 634 N.E.2d 57, 60

       (Ind. Ct. App. 1994) (citing I.C. § 35-34-1-4(b)(1)). In this case, on June 21,

       2013, Ankh-El filed a “Demand for Dismissal” in which he alleged that the

       Information was defective due to lack of subject matter jurisdiction, failure to

       state charged offenses with sufficient certainty, and failure to identify the

       defendant with certainty. (Appellant’s App. p. 41).6


[38]   On appeal, Ankh-El contends that the Information “failed to give an allegation

       of jurisdiction,” which “makes the complaint [sic] facially void.” (Appellant’s

       Br. p. 23). Pursuant to Indiana Code section 35-34-1-2(a)(7), a charging

       information is required to state “the place of the offense with sufficient

       particularity to show that the offense was committed within the jurisdiction of

       the court where the charge is to be filed.” In this case, the Information

       specifically stated that Ankh-El committed the crimes alleged therein “in

       Marion County, Indiana.” (Appellant’s App. p. 5). Therefore, we find no

       defect in the Information on this basis.


[39]   Ankh-El also contends that the Information failed to adequately name him as

       the defendant. Indiana Code section 35-34-1-2(a)(9) stipulates that an




       6
         As the Chronological Case Summary (CCS) does not specify the omnibus date, we are unable to discern
       whether Ankh-El’s dismissal motion was timely filed (although challenges to subject matter jurisdiction may
       be made at any time pursuant to Indiana Code section 35-34-1-4(b)). Additionally, Ankh-El’s motion to
       dismiss is not reflected in the CCS, and it is unclear whether the trial court ever formally ruled on the motion.


       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016                         Page 24 of 30
       information must state “the name of every defendant, if known, and if not

       known, by designating the defendant by any name or description by which he

       can be identified with reasonable certainty.” Here, the Information identified

       “WENDELL BROWN” as the defendant. (Appellant’s App. pp. 5-7).

       However, according to Ankh-El:

               I provided lawful identification, My Moorish American
               Nationality Card, to an officer of STATE OF INDIANA [(i.e., a
               notary public),] who acknowledged that I Am Menes Ankh El
               and I signed the “FREEHOLD IN DEED” in front of her. The
               “FREEHOLD IN DEED”, so acknowledged, is entitled to be
               received in evidence in the courts of STATE OF INDIANA
               without further authentication that I Am Menes Ankh El.
               STATE OF INDIANA’S and the court’s attempt to make Me be
               the BLACK MALE, WENDELL BROWN is contrary to the
               evidence provided by STATE OF INDIANA. Therefore, I am
               not WENDELL BROWN and cannot be reasonably identified as
               such and the STATE OF INDIANA failed to prove such, and
               thus leaving the court wanting for personal jurisdiction.


       (Appellant’s Br. p. 24) (citation omitted).


[40]   Ankh-El argued in a pre-trial motion for dismissal that the Information’s

       reference to him as Wendell Brown, rather than Ankh-El, constitutes

       “denationalization and violation of the 13th Amendment prohibitions of slavery

       and involuntary servitude[,]” but he never contended that he and Wendell

       Brown are not the same person. (Appellant’s App. p. 42). As such, we find

       that Ankh-El is raising this argument for the first time on appeal and has

       therefore waived the issue. See King v. State, 799 N.E.2d 42, 47 (Ind. Ct. App.

       2003) (“[A] defendant is limited to the grounds advanced at trial and may not
       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 25 of 30
       raise a new ground for objection for the first time on appeal.”), trans. denied; cert.

       denied, 543 U.S. 817 (2004). Waiver notwithstanding, Ankh-El’s argument fails.

       The Information need only identify “the defendant by any name or description

       by which he can be identified with reasonable certainty.” I.C. § 35- 34-1-

       2(a)(9). Following Ankh-El’s arrest, his fingerprints established his identity as

       Wendell Brown. Moreover, Ankh-El acknowledged to the trial court that he

       was formerly known as Wendell Brown, and there is no indication that Ankh-El

       ever legally changed his name from Wendell Brown.

       Accordingly, we find that the Information adequately identified him as the

       defendant.


[41]   Ankh-El next challenges the adequacy of the description of his offenses in the

       Information. An information is required to set “forth the nature and elements of

       the offense charged in plain and concise language without unnecessary

       repetition.” I.C. § 35-34-1-2(a)(4). Similarly, Indiana Code section 35-34-1-2(d)

       further provides that the information “shall be a plain, concise, and definite

       written statement of the essential facts constituting the offense charged.” Ankh-

       El argues that the State’s repeated use of the phrase “and/or” in the burglary

       and forgery charges “substantially prejudiced [his] rights to due process, as

       proper defense preparation was hindered.” (Appellant’s Br. p. 25). In

       particular, Ankh-El challenges the language in the burglary Count that he broke

       and entered a building belonging to “Forcum and/or Bank of America and/or

       Bank of New York.” (Appellant’s App. p. 5). Likewise, for the forgery Count,

       Ankh-El points to language that he “ma[d]e and/or utter[ed] to Officer Brian


       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 26 of 30
       McCann and/or Officer Matthew Addington and/or Detective Brian

       Hoffmeister a written instrument . . . in such a manner that it purported to have

       been made . . . by the authority of [Forcum] and/or Bank of America and/or

       Bank of New York.” (Appellant’s App. pp. 5-6). According to Ankh-El, “[t]he

       phrase ‘and/or’ is being used as a catch all which is improper and leaves the

       charges wanting for clarity.” (Appellant’s Br. p. 25). We disagree.


[42]   The purpose of an information is to advise a defendant of the crime with which

       he is charged so that he may prepare a defense. Miller, 634 N.E.2d at 61. Here,

       the Information adequately apprised Ankh-El that he was being charged with

       breaking and entering the Property and with forging a deed that purported to

       grant him ownership rights in the Property. There were complex contractual

       issues regarding the ownership of the Property between the banks, and Forcum

       acted as a representative of the banks, but the ultimate ownership of the

       Property among these three entities has no bearing on Ankh-El’s ability to

       defend against the claims that he committed burglary and forgery. Likewise, it

       is entirely irrelevant to which of the three IMPD officers Ankh-El tendered his

       Freehold in Deed as the Information makes it abundantly clear that Ankh-El

       purportedly used the Freehold in Deed in an attempt to convince the officers

       that he owned the Property. Thus, the Information is not defective for failure to

       set forth the charged offenses in plain and concise language.


                                              V. Fundamental Error

[43]   Finally, Ankh-El claims that the trial court exhibited prejudice which resulted

       in fundamental error. “The fundamental error doctrine permits a reviewing

       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 27 of 30
       court to consider the merits of an improperly raised error if the reviewing court

       finds that the error was so prejudicial to the rights of the appellant that he could

       not have had a fair trial.” Madden v. State, 656 N.E.2d 524, 526 (Ind. Ct. App.

       1995), trans. denied. “A fundamental error is a substantial, blatant violation of

       basic principles of due process rendering the trial unfair to the defendant.” State

       v. Eubanks, 729 N.E.2d 201, 206 (Ind. Ct. App. 2000), trans. denied. The

       fundamental error doctrine is a narrow exception to the general rule that an

       objection must be raised to preserve an error for appeal; thus, it is applied only

       where “the harm or potential for harm [can]not be denied.” Id. (alteration in

       original) (quoting Canaan v. State, 683 N.E.2d 227, 235-36 n.6 (Ind. 1997)).


[44]   Our review of the record reveals that prior to trial, Ankh-El filed a plethora of

       motions, most of which failed to present sound, comprehensible legal

       arguments. According to Ankh-El, the trial court committed fundamental error

       by failing “to give any of [his] motions or affidavits proper consideration and

       there were no hearings held on any of the motions and affidavits which

       pertained to the jurisdiction or the subject-matter of the action.” (Appellant’s

       Br. p. 26). We first note that the CCS does not include any information about

       matters that occurred prior to trial, so we are unable to discern how Ankh-El’s

       motions were actually handled. Indiana Trial Rule 53.1(A) provides:

               In the event a court fails for thirty (30) days to set a motion for
               hearing or fails to rule on a motion within thirty (30) days after it
               was heard or thirty (30) days after it was filed, if no hearing is
               required, upon application by an interested party, the submission
               of the cause may be withdrawn from the trial judge and


       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 28 of 30
               transferred to the [Indiana] Supreme Court for the appointment
               of a special judge.


       There is no indication here that Ankh-El availed himself of this procedure upon

       the trial court’s failure to rule on his various motions. Moreover, on appeal,

       Ankh-El has failed to set forth a cogent argument regarding how the trial

       court’s denial, or deemed denial, of his motions deprived him of a fair trial. See

       Ind. App. R. 46(A)(8)(a). Accordingly, Ankh-El has failed to satisfy his burden

       to demonstrate that the trial court committed fundamental error on this basis.


[45]   Ankh-El also contends that the trial court committed fundamental error by

       “refus[ing] to allow [him] to present [his] defense, which was based on the

       doctrine of [a]dverse [p]ossession.” (Appellant’s Br. p. 26). We find that this

       contention lacks any support in the record. During Ankh-El’s cross-

       examination of Forcum at trial, Ankh-El asked Forcum whether he had “ever

       heard of adverse possession” or was “aware of Indiana statutes on adverse

       possession.” (Tr. pp. 186-87). The State objected on grounds of relevance, and

       the court sustained the State’s objection. Thereafter, during his case-in-chief,

       Ankh-El presented no evidence in support of a defense theory of adverse

       possession, and he did not request that the jury be instructed on adverse

       possession. Thus, he cannot argue now that the trial court prevented him from

       presenting such a defense. Furthermore, even if the trial court had denied

       Ankh-El the opportunity to present an adverse possession defense, it would not

       have had any impact on the outcome of the case. As already discussed at

       length, Ankh-El’s adverse possession claim is entirely meritless in light of the

       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 29 of 30
       fact that he did not meet the requisite duration for adverse possession. Thus,

       there is no error, let alone fundamental error.


                                                CONCLUSION

[46]   Based on the foregoing, we conclude that the trial court had subject matter

       jurisdiction over this case; the trial court did not violate Ankh-El’s Sixth

       Amendment right to counsel; the State presented sufficient evidence to support

       Ankh-El’s conviction for burglary, forgery, and driving while suspended beyond

       a reasonable doubt; the charging Information was not defective; and the trial

       court did not commit fundamental error.


[47]   Affirmed.

[48]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Opinion 49A05-1311-CR-550 | November 22, 2016   Page 30 of 30
