Pursuant to Ind. Appellate Rule 65(D),
                                                                            Sep 12 2013, 6:03 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

STANLEY F. WRUBLE III                             GREGORY F. ZOELLER
South Bend, Indiana                               Attorney General of Indiana

                                                  RICHARD C. WEBSTER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

WILLIE AMBROS NORMAN,                             )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )        No. 71A03-1301-CR-13
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable Jane Woodward Miller, Judge
                              Cause No. 71D01-1207-FD-694



                                      September 12, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


SULLIVAN, Senior Judge
       After a bench trial, Willie Ambros Norman was convicted of Class D felony

attempt to acquire possession of a legend drug by fraud, deceit, misrepresentation, or

subterfuge. He now appeals, contending that the evidence is insufficient to sustain his

conviction and that the trial court’s reference to his prior criminal history constitutes

fundamental error. We affirm.

       On July 28, 2012, Mary Dennis, a pharmacist at the Kmart store in Mishawaka,

received a call from a woman who claimed to be from Dr. Jose Lim’s office and said she

was calling in a prescription for 120 tablets of extra strength Vicodin for Willie Norman.

       Because of the quantity of Vicodin requested, Dennis called Dr. Lim’s office to

verify the prescription. Nurse Megan Binder answered. Binder told Dennis that she had

not called in the prescription and that she was the only person at the office with the

authority to call in prescriptions that day. Upon searching for Norman in the office’s

electronic system, Binder discovered he was not even a patient there. Moreover, the

office’s narcotics policy was that a patient had to be seen by a doctor and be given a

written prescription—the office did not call in narcotics prescriptions.

       A little later, Norman called the pharmacy and asked Dennis whether a

prescription had been called in for him. Dennis told him it had been called in but would

not be ready until early afternoon.

       Norman arrived at the pharmacy in the afternoon, asked to pick up the

prescription, and provided identification. While entering his identification number in the

computer, Dennis called loss prevention officer David Manning, whom she had

previously notified of the situation. Norman waited in the pharmacy area while Dennis

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finished filling the prescription. He then left, however, saying he did not have enough

money to pay for it.

        Meanwhile, Manning went outside, saw a woman in a black car idling in front of

the store, and noted the license plate number. He then called the Mishawaka Police

Department. When Officer Ronald Treely arrived a few minutes later, the black car sped

off. Around that time, Manning received a call from Dennis that Norman had left

without the prescription.

        When Norman walked out of the store, Officer Treely called him over and asked

about the prescription. Norman looked nervous and stammered that the prescription was

for his mother. He then changed his story and said that it was for his back pain and that

he had been in a car accident.       Norman said he did not know who called in the

prescription, but “Lacy” told him to pick it up and had taken him to the store.

        The State charged Norman with Class D felony attempt to acquire possession of a

legend drug by fraud, deceit, misrepresentation, or subterfuge. Norman waived his right

to a jury trial.

        On the day of the bench trial, defense counsel informed the trial court that Norman

had been taking medication while in jail but noted that it did not appear to affect his

understanding of the proceedings. While the court asked Norman about his medication

and his understanding of the proceedings, the following colloquy occurred:

        THE COURT: Okay. And you know that you signed a waiver of a jury
             trial?
        THE DEFENDANT: Yes, ma’am.
        THE COURT: And that’s what you want to do is have me make the
             decision, rather than . . . have a jury here?

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       THE DEFENDANT: Yes, ma’am.
       THE COURT: Okay. And, Mr. Norman, I’ve known you before, right?
            I’ve sentenced you before?
       THE DEFENDANT: Yes, ma’am.
       THE COURT: So you’re not -- I always like this. It’s not your first time at
            the rodeo, right?
       THE DEFENDANT: Yes, ma’am.

Tr. pp. 9-10.

       Dennis, Binder, Manning, and Officer Treely testified for the State. Norman

testified in his own defense. The court found Norman guilty as charged and later

sentenced him to eighteen months.

       Norman raises three issues on appeal, which we consolidate and restate as: (1)

whether the evidence is sufficient to sustain his conviction, and (2) whether the trial

court’s reference to his prior criminal history constitutes fundamental error.

                         I. SUFFICIENCY OF THE EVIDENCE

       In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence

or assess the credibility of the witnesses. Treadway v. State, 924 N.E.2d 621, 639 (Ind.

2010). Rather, we look to the evidence and reasonable inferences drawn therefrom that

support the judgment. Id. We affirm the conviction if there is probative evidence from

which a reasonable fact-finder could have found the defendant guilty beyond a reasonable

doubt. Id.

       To convict Norman as charged here, the State had to prove beyond a reasonable

doubt that he attempted to obtain the Vicodin prescription by fraud, deceit,

misrepresentation, or subterfuge. See Ind. Code § 16-42-19-16(1)(A) (1999). “A person

attempts to commit a crime when, acting with the culpability required for commission of

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the crime, he engages in conduct that constitutes a substantial step toward commission of

the crime.” Ind. Code § 35-41-5-1(a) (1977).1

        The facts most favorable to the judgment show that Norman called to confirm a

fraudulent Vicodin prescription after it had been called in to the Kmart pharmacy. He

then went to the pharmacy and asked for the prescription. Norman waited for it to be

filled but then left, saying he did not have enough money. When confronted outside the

store, he nervously stammered that the prescription was for his mother but then said it

was for him.

        Despite this clear evidence, Norman argues that a mistake of fact precludes his

conviction because he thought the prescription was legitimate. Indiana Code section 35-

41-3-7 (1977) 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.” For mistake of fact to be a valid

defense, three elements must be satisfied: (1) the mistake must be honest and reasonable;

(2) the mistake must be about a matter of fact; and (3) the mistake must negate the

culpability required to commit the crime. Nolan v. State, 863 N.E.2d 398, 404 (Ind. Ct.

App. 2007), trans. denied.

        To support his mistake of fact defense, Norman points to his own testimony.

Norman testified that he met “Lacy” at a downtown “drum circle.” Tr. p. 86. He thought

she was a nurse because “she was in a nurse’s outfit and everything.” Id. While they

1
  The charging information also cited the accomplice liability statute, thus including liability under the
theory that Norman knowingly or intentionally aided, induced, or caused another person to commit the
offense. See Ind. Code § 35-41-2-4 (1977).
                                                    5
smoked marijuana together, they talked about pills. Norman said he could buy pills “for

six, seven dollars in the street.” Id. at 87. “Lacy” said she could talk to a doctor and get

him a prescription. After the prescription was called in, she had Norman call to confirm

it. She then took him to Kmart, gave him money, and told him they would split the pills.

       When finding Norman guilty, the court stated that his testimony was not credible:

       I found this idea that you were smoking weed with someone who you
       believed to be a nurse, and this woman that you were smoking weed with
       was going to legitimately get you pills and then split them with you to be
       incredible. I found it to be incredible. I did not believe your testimony.

Id. at 102. We may not disturb this credibility determination on appeal. In any event, we

agree with the State that, under the facts presented by Norman, any belief that “Lacy”

was a nurse who could give him a valid Vicodin prescription was unreasonable.

       Norman also argues there is no evidence of fraud, deceit, misrepresentation, or

subterfuge and cites Schroer v. State, 159 Ind. App. 522, 307 N.E.2d 887 (1974). There,

an unidentified customer submitted a written prescription to a pharmacy and received a

call slip in return. The pharmacist believed the prescription was forged, confirmed this

fact by calling the office of the doctor whose name was on the prescription, and notified

the police. When the number on the call slip was announced, the defendant stepped to

the counter and presented the call slip. He was subsequently arrested.

       This Court noted it could be reasonably inferred that the defendant was acting in

concert with the customer who submitted the written prescription and that he knew the

prescription was forged. Thus, because the defendant represented he was entitled to the




                                             6
drug when he presented the call slip, the evidence was sufficient to sustain his conviction

for attempting to obtain a dangerous drug by misrepresentation or subterfuge. Id. at 889.

       Norman claims the presentation of the call slip in Schroer distinguishes it from the

instant case. He claims he never represented he was entitled to the Vicodin prescription

and says the fact that he called the pharmacy in advance shows he was unsure of whether

he was entitled to the drug.

       We disagree. Schroer is instructive. As in Schroer, it can be reasonably inferred

that Norman knew the Vicodin prescription was fraudulent and that he was acting in

concert with the woman who called it in. He represented he was entitled to the drug

when he both called the pharmacy to confirm it and asked for the prescription at the

pharmacy counter.

       We therefore conclude there is ample evidence to sustain Norman’s conviction.

            II. COURT’S REFERENCE TO PRIOR CRIMINAL HISTORY

       Norman next contends the trial court’s reference to his prior criminal history

constitutes fundamental error. The fundamental error exception is extremely narrow and

applies only when the error constitutes a blatant violation of basic principles, the harm or

potential for harm is substantial, and the resulting error denies the defendant fundamental

due process. Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010). The error claimed must

either make a fair trial impossible or constitute clearly blatant violations of basic and

elementary principles of due process. Id. This exception is available only in egregious

circumstances. Id.



                                             7
       Norman points to the court’s verification at the start of trial that the court had

sentenced him before and that the case was “not [his] first time at the rodeo.” Tr. p. 10.

Norman argues he was entitled to notice that the court was going to reference his prior

convictions and cites Indiana Evidence Rule 609, which allows evidence of certain

convictions for the purpose of attacking a witness’s credibility but prohibits evidence of

stale convictions unless the proponent gives the adverse party sufficient advance written

notice of intent to use such evidence so that the adverse party has a fair opportunity to

contest its use. Although Norman acknowledges the reference to his criminal history

came from the court and not the State, he argues he “was provided with no opportunity to

question the Trial Court on its reference to or reliance upon Mr. Norman’s past

convictions, if any.” Appellant’s Br. p. 10.

       First, Evidence Rule 609 simply does not apply here because the trial court’s

comments were not evidence, much less evidence put forth by the State. Second, the

comments were made only to verify that Norman understood he had previously waived

his right to a jury trial and was proceeding to a bench trial. Third, any claim that the

court used Norman’s prior criminal history to judge his credibility is pure speculation.

There is absolutely nothing in the record to support such a claim. Indeed, at the end of

the trial, the court thoughtfully summarized the evidence and explained why that

evidence led the court to find him guilty beyond a reasonable doubt. See Tr. pp. 100-02.

As to his credibility, the court plainly found his testimony unbelievable that a marijuana-

smoking nurse offered to get him a valid prescription for extra strength Vicodin and

wanted to split the pills with him. There is no error, fundamental or otherwise.

                                               8
     We therefore affirm the trial court’s judgment.

MATHIAS, J., and BRADFORD, J., concur.




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