MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       Nov 25 2015, 7:21 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 L. Campbell                                     Gregory F. Zoeller
Fort Wayne, Indiana                                     Attorney General of Indiana

                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Daniel L. Preston,                                      November 25, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1505-CR-400
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        02D05-1309-FB-154



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-400 | November 25, 2015      Page 1 of 5
[1]   Daniel L. Preston challenges the sufficiency of evidence supporting his

      convictions of Class B felony robbery 1 and Class C felony forgery. 2 We affirm.


                                     Facts and Procedural History
[2]   Katherine Larrabee was the opening manager of an Express store. On July 3,

      2013, Larrabee and Nicole Wagner, an associate, left the store to take the

      store’s deposit to the bank. Preston approached Larrabee’s car, held a gun to

      her neck, and took the deposit money and Larrabee’s purse containing her

      personal credit cards. Juan Nieves witnessed two men in a Mercury Marquis in

      the area prior to the robbery and saw the vehicle speed away afterward.

      Wagner and Nieves described the men to the police and each picked Preston

      out of separate photo arrays.


[3]   Later that day, Larrabee’s credit card was used at King City Fashion. Youssouf

      Dogro, an employee, knew Preston as a regular customer and questioned his

      use of a credit card not in his name. Preston claimed the card belonged to his

      girlfriend. Dogro requested Preston’s identification and recorded Preston’s date

      of birth and driver’s license number on the receipt. A surveillance camera

      captured Preston using the credit card.


[4]   The State charged Preston with Class B felony robbery, Class C felony forgery,

      and Class D felony receiving stolen property. The jury found him guilty on all



      1
          Ind. Code § 35-42-5-1 (1984).
      2
          Ind. Code § 35-42-5-2 (2006).


      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-400 | November 25, 2015   Page 2 of 5
      three counts, but the court vacated the receiving stolen property count. Preston

      was sentenced to twelve years for robbery and four years for forgery, to run

      consecutively.


                                     Discussion and Decision
[5]   There was sufficient evidence to sustain Preston’s convictions. When reviewing

      sufficiency of evidence to support a conviction, we consider only the probative

      evidence and reasonable inferences supporting the fact-finder’s decision. Drane

      v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and not

      ours, to assess witness credibility and weigh the evidence to determine whether

      it is sufficient to support a conviction. Id. To preserve this structure, when we

      are confronted with conflicting evidence, we consider it most favorably to the

      ruling. Id. We affirm a conviction unless no reasonable fact-finder could find

      the elements of the crime proven beyond a reasonable doubt. Id. It is therefore

      not necessary that the evidence overcome every reasonable hypothesis of

      innocence; rather, the evidence is sufficient if an inference reasonably may be

      drawn from it to support the decision. Id. at 147.


                                                   Robbery

[6]   Class B felony robbery is committed when a person “knowingly or intentionally

      takes property from another person . . . by using or threatening the use of force

      on any person . . . while armed with a deadly weapon . . . .” Ind. Code § 35-42-

      5-1.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-400 | November 25, 2015   Page 3 of 5
[7]   Larrabee identified Preston, in a photo array, as the person who robbed her.

      Nieves identified Preston in a photo array as one of the men involved in the

      robbery. See, e.g., Bryant v. State, 278 N.E.2d 576, 576 (Ind. 1972) (eye witness

      identification is sufficient to support conviction). There was evidence Preston

      used Larrabee’s credit card, which he could not have had if it had not been

      stolen. See, e.g., Gibson v. State, 533 N.E.2d 187, 188 (Ind. Ct. App. 1989)

      (“mere unexplained, exclusive possession of recently stolen property will

      sustain a conviction” and “possession remains unexplained when the trier of

      facts rejects the explanation [given]”). Preston’s arguments to the contrary 3 are

      invitations for us to reweigh the evidence, which we cannot do. See Drane, 867

      N.E.2d at 146 (appellate court will not reweigh evidence on appeal).


                                                       Forgery

[8]   To prove Preston committed Class C felony forgery, the State was required to

      prove that he, “with intent to defraud, ma[de], utter[ed], or possesse[d] a

      written instrument in such a manner that it purports to have been made: (1) by

      another person; (2) at another time; (3) with different provisions; or (4) by

      authority of one who did not give authority.” Ind. Code § 35-42-5-2. A credit

      card is a written instrument. Ind. Code § 35-43-5-1(d). “Without question, an

      individual who, with intent to defraud, signs a credit card sales receipt ‘in such

      a manner that it purports to have been made . . . by another person’ commits




      3
       Preston testified he was home with his mother at the time of the robbery and a friend of his brother gave
      him the credit card to use.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-400 | November 25, 2015           Page 4 of 5
       forgery.” Borjas v. State, 946 N.E.2d 1230, 1232 (Ind. Ct. App. 2011) (quoting

       Ind. Code § 35-42-5-2), trans. denied.


[9]    Preston’s use of Larrabee’s credit card was captured on video surveillance

       equipment, and he was identified by Dogro. Preston testified he used the credit

       card and he doesn’t “use [his] last name when [he] use[s], like, my mom (sic)

       card or somebody else’s, ‘cause they always – when they see it, they be like,

       ‘Can I see I.D.’ or something.” (Tr. at 261.) His act of signing a name other

       than his own when using a card for which he had no authority constitutes

       forgery. See Ind. Code 35-42-5-2(a)(1)(D) (forgery occurs when one “makes . . .

       a written instrument in such a manner that it purports to have been made by

       authority of one who did not give authority”); see also Green v. State, 945 N.E.2d

       205, 208 (Ind. Ct. App. 2011) (signing a credit card receipt in such a manner

       that it appears to have been signed by someone else is forgery). Preston’s

       arguments to the contrary are invitations for us to reweigh the evidence, which

       we cannot do. See Drane, 867 N.E.2d at 146 (appellate court will not reweigh

       evidence on appeal).


                                                Conclusion
[10]   The evidence was sufficient to support Preston’s convictions; therefore, we

       affirm.


[11]   Affirmed.


       Crone, J., and Bradford, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-400 | November 25, 2015   Page 5 of 5
