MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                Jun 29 2017, 8:52 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                   CLERK
                                                                 Indiana Supreme Court
purpose of establishing the defense of res judicata,                Court of Appeals
                                                                      and Tax Court
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Wendell Brown                                             Curtis T. Hill, Jr.
Greencastle, Indiana                                      Attorney General of Indiana
                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Wendell Brown,                                           June 29, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1507-CR-928
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Lisa F. Borges,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         49G04-1502-F5-3976




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017      Page 1 of 13
                                          Statement of the Case
[1]   Wendell Brown appeals his conviction of attempted fraud on a financial
                                               1
      institution, a Level 5 felony. We affirm.


                                                         Issues
[2]   Brown presents four issues for our review, which we restate as:

                 I.       Whether the trial court had jurisdiction.
                 II.      Whether the charging information was defective.
                 III.     Whether the evidence was sufficient to support Brown’s
                          conviction.
                 IV.      Whether the trial court committed fundamental error.

                                   Facts and Procedural History
[3]   In December 2014, Brown purchased a car from a car dealership in Marion

      County with a cashier’s check. Shortly thereafter, a bank employee informed

      the car dealership that Brown’s check was not valid. Based upon this incident,

      the State charged Brown with attempted fraud on a financial institution, a Level

      5 felony; two counts of forgery, both Level 6 felonies; and auto theft, a Level 6

      felony.


[4]   A bench trial was held on May 26, 2015, and Brown was found guilty as

      charged. At sentencing, the trial court entered judgment of conviction only on




      1
          Ind. Code §§ 35-43-5-8 (2014); 35-41-5-1 (2014).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 2 of 13
      the offense of attempted fraud on a financial institution, sentenced Brown to

      five years, and ordered the sentence to run consecutively to his sentences in

      other causes. Brown now appeals.


                                   Discussion and Decision
                                              I. Jurisdiction
[5]   Brown first contends that the trial court lacked jurisdiction. Indiana courts

      must possess two kinds of jurisdiction to adjudicate a case: subject matter and

      personal. Taylor-Bey v. State, 53 N.E.3d 1230, 1231 (Ind. Ct. App. 2016).

      Subject matter jurisdiction is the power of a court to hear and determine cases

      of the general class to which a particular proceeding belongs. Id. Personal

      jurisdiction is the power of a court to bring a person into its adjudicative process

      and render a valid judgment over that person, and it requires effective service of

      process over the parties. Johnson v. State, 957 N.E.2d 660, 662 (Ind. Ct. App.

      2011).


[6]   As to subject matter jurisdiction, Indiana courts obtain this jurisdiction through

      the Indiana Constitution or a statute. Taylor-Bey, 53 N.E.3d at 1231. Indiana

      Code section 33-29-1.5-2(1) (2011) provides that all superior courts of this state

      have original jurisdiction in all criminal cases. In addition, criminal

      proceedings are, generally, to be tried in the county where the offense was

      committed. See Ind. Code § 35-32-2-1(a) (2005). The offenses involved in this

      case occurred in Marion County, and Brown was charged and tried in superior




      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 3 of 13
      court in Marion County. Accordingly, the trial court had subject matter

      jurisdiction over Brown’s case.


[7]   With regard to personal jurisdiction, Brown argues that the trial court did not

      have jurisdiction over him solely on the ground that he is an “Aboriginal and

      Indigenous Moorish American National” and thus neither a citizen of the

      United States nor of the State of Indiana. Appellant’s Br. p. 11. However, the

      Fourteenth Amendment 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.

      Moreover, personal jurisdiction does not require the defendant to be a United

      States citizen. Taylor-Bey, 53 N.E.3d at 1232 (determining that county superior

      court had personal jurisdiction over defendant despite his contention that he

      was not United States citizen but was Moorish American National). The trial

      court had personal jurisdiction over Brown.


                                     II. Charging Information
[8]   Brown next asserts, essentially, that the trial court erred in denying his motion

      to dismiss the charging information. In support of this claim, Brown argues

      that the information was defective because it did not state to whom he

      presented the check and that, as a result, he “had to guess who the check was

      supposed to have been presented to.” Appellant’s Br. p. 14.


[9]   A trial court’s denial of a motion to dismiss is reviewed only for an abuse of

      discretion. Study v. State, 24 N.E.3d 947, 950 (Ind. 2015), cert. denied, 136 S. Ct.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 4 of 13
       412, 193 L. Ed. 2d 325 (2015). An abuse of discretion occurs when the decision

       is clearly against the logic and effect of the facts and circumstances before the

       court, or when the trial court has misinterpreted the law. Estrada v. State, 969

       N.E.2d 1032, 1038 (Ind. Ct. App. 2012), trans. denied.


[10]   Indiana Code section 35-34-1-2 (2013) sets forth the required contents of the

       charging information, the overarching purpose of which is to give the defendant

       particular notice of the crimes with which he is charged so that he can prepare

       an appropriate defense. Woods v. State, 980 N.E.2d 439, 443 (Ind. Ct. App.

       2012). Here, the charging information alleges that Brown attempted to commit

       fraud on a financial institution by “presenting a cashier[’]s check that appeared

       to be authorized by JP Morgan Chase Bank and was associated to a closed

       account that belonged to Wendell Brown when Wendell Brown knew that said

       account was closed and said check was not authorized by JP Morgan Chase

       Bank.” Appellant’s App., Vol. II, p. 12. Additionally, the probable cause

       affidavit provided further details that Brown issued an $8,000.00 cashier’s check

       to Ray Skillman West car dealership as a down payment on an automobile. Id.

       at 15.


[11]   “It has long been the rule in Indiana that the State may meet its burden of

       providing sufficient notice of the charges the defendant faces through the

       combination of an information and a probable cause affidavit.” Tiplick v. State,

       43 N.E.3d 1259, 1269 (Ind. 2015). Taken together, the information and the

       affidavit in this case provide sufficient facts to allege attempted fraud on a



       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 5 of 13
       financial institution by Brown’s presentation of a check to Ray Skillman and to

       apprise Brown that the State would argue that theory at trial.


                                   III. Sufficiency of the Evidence
[12]   As a third allegation of error, Brown claims that the State’s evidence was

       insufficient to support his conviction. When we review a challenge to the

       sufficiency of the evidence, we neither reweigh the evidence nor judge the

       credibility of the witnesses. Sandleben v. State, 29 N.E.3d 126, 131 (Ind. Ct.

       App. 2015), trans. denied. Instead, we consider only the evidence most favorable

       to the judgment and any reasonable inferences drawn therefrom. Id. If there is

       substantial evidence of probative value from which a reasonable fact-finder

       could have found the defendant guilty beyond a reasonable doubt, the judgment

       will not be disturbed. Labarr v. State, 36 N.E.3d 501, 502 (Ind. Ct. App. 2015).

       The result of the fact-finder carrying out its function of determining the weight

       of the evidence and the credibility of the witnesses is that it is free to believe

       whomever it wishes. Klaff v. State, 884 N.E.2d 272, 274 (Ind. Ct. App. 2008).


[13]   Indiana Code section 35-43-5-8 provides:


               (a) A person who knowingly executes, or attempts to execute, a
               scheme or artifice:
                (1) . . . . ; or
                (2) to obtain any of the money, funds, credits, assets, securities,
               or other property owned by or under the custody or control of a
               state or federally chartered or federally insured financial
               institution by means of false or fraudulent pretenses,
               representations, or promises;

       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 6 of 13
               commits [fraud on a financial institution] a Level 5 felony.
       Subsection (b)(4) of the statute defines “state or federally chartered or federally

       insured financial institution” to include a bank or financial institution.


[14]   The charging information alleged that Brown attempted to obtain United States

       currency owned by, under the custody of, or under the control of, JP Morgan

       Chase Bank, a state or federally chartered or federally insured financial

       institution, by means of false or fraudulent pretenses, representations or

       promises by presenting a cashier’s check that appeared to be authorized by JP

       Morgan Chase Bank and was associated with a closed account that belonged to

       Brown when Brown knew that the account was closed and that the check was

       not authorized by JP Morgan Chase Bank. See Appellant’s App., Vol. II, p. 12.


[15]   At trial, the State presented evidence that Brown had attempted to purchase a

       car from the Ray Skillman dealership in Marion County, Indiana using a

       cashier’s check for the down payment and was identified from a photo array by

       both Jacob Morris, Ray Skillman salesman, and Christopher Muhney, Ray

       Skillman finance manager. Muhney testified that a week after Brown

       purchased the car, the dealership accounting office informed him that Brown’s

       cashier’s check was returned as not valid.


[16]   William Smith, fraud investigator with JP Morgan Chase Bank, also testified

       on behalf of the State. Referring to State’s Exhibit 3, a copy of Brown’s

       cashier’s check, Smith explained that although it appears to be a cashier’s check

       issued by JP Morgan Chase Bank, it is not because the account number on the


       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 7 of 13
       check is a personal account number. He further testified that JP Morgan Chase

       Bank’s cashier’s checks are drawn on funds from a separate internal account so

       personal account numbers are not on the check. Additionally, Smith explained

       that JP Morgan Chase Bank maintains images of the cashier’s checks it issues,

       and, if the check is not found in the system, it generally indicates the check is

       counterfeit. He testified that he had examined the records of JP Morgan Chase

       Bank and had not found this check in its system. Finally, Smith testified that

       JP Morgan Chase Bank’s records indicate that the personal account number on

       the check was an account belonging to Brown that was opened in December

       2006 and closed in May 2007. The State also presented evidence of Brown’s

       knowledge that this account was closed. This evidence is sufficient to show that

       Brown committed attempted fraud on a financial institution by attempting to

       cause JP Morgan Chase Bank to transfer $8,000.00 to the Ray Skillman car

       dealership on the basis of his counterfeit cashier’s check.


                                       IV. Fundamental Error
[17]   Finally, Brown alleges that the trial court made several fundamental errors.

       The fundamental error doctrine is extremely narrow and applies only when the

       error amounts to a blatant violation of basic principles, the harm or potential for

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

       due process. Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010), trans.

       denied.


[18]   First, Brown contends that the trial court judge “refused to acknowledge [his]

       jurisdictional challenge or make the [State] prove the court’s jurisdiction was
       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 8 of 13
       proper” and “refused to take judicial notice of the court’s lack of jurisdiction.”

       Appellant’s Br. pp. 17, 18.


[19]   As discussed and determined in Issue I, supra, the trial court had jurisdiction

       over Brown and his criminal case. In Issue II, supra, we determined the State

       presented sufficient evidence at trial, which included proof that the crime

       occurred in Marion County, Indiana. In addition, the court did acknowledge

       and rule on Brown’s jurisdictional challenges at the hearing on Brown’s motion

       to dismiss, see Tr., Vol. I, p. 87, and at the final pre-trial conference:


               COURT:     Okay. But it does say here that you’re alleging that
               you want me to take judicial notice that I don’t have jurisdiction.
               BROWN: Basically take judicial notice of constitutional law
               and United States code as well as stare decisis that says that this
               Court doesn’t have judicial — I mean, I’m sorry, jurisdiction.
               COURT:        Okay. I will take judicial notice of the United States
               Constitution and US code and stare decisis as I find it applies but
               I will not take judicial notice of your assertion that I don’t have
               jurisdiction cause I believe I do, all right — I know we disagree
               on that but I do believe for that — I have jurisdiction and your
               record is clear, okay?
               BROWN: Well, I — I know that one case cited in that judicial
               notice states that the State must prove jurisdiction.
               COURT:           Yes, they have to do that but not until trial.
               BROWN:           Well —
               COURT:       They’ve alleged jurisdiction already. Now they
               have to prove it at trial.
       Id. at 102. Accordingly, Brown’s claim of fundamental error on this issue fails.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 9 of 13
[20]   Next, Brown argues the trial court committed fundamental error by admitting

       State’s Exhibit 3, a copy of the cashier’s check, because it “was not the same

       document provided in the initial discovery” in that it “shows signs of

       tampering.” Appellant’s Br. p. 19. A review of State’s Exhibit 3 and the

       document to which Brown directs us reveals no disparity between the two

       copies of the check. See Exhibits Vol. p. 8; Appellant’s App., Vol. II, p. 26.

       Brown has failed to show any error, much less fundamental error.


[21]   Brown’s final claim of fundamental error is that the trial judge was not

       impartial. Trial before an impartial judge is an essential element of due process.

       Everling v. State, 929 N.E.2d 1281, 1287 (Ind. 2010). In assessing a trial judge’s

       partiality, we examine the judge’s actions and demeanor balanced with the

       latitude needed to run the courtroom and maintain discipline and control. Id. at

       1288. The conduct to which Brown points as showing the court’s partiality can

       be categorized as questioning a witness, clarification of questions and

       procedure, admission of evidence, and moving forward with the trial.


[22]   The first instance, although described by Brown as the judge giving a legal

       conclusion on the evidence, is actually the judge re-stating Brown’s question to

       a witness. In a bench trial, the judge is afforded the discretion to ask questions

       of a witness to aid in the fact-finding process provided that it is done in an

       impartial manner and the defendant is not prejudiced. Jones v. State, 847

       N.E.2d 190, 198 (Ind. Ct. App. 2006), trans. denied. Here, the judge was

       attempting to assist Brown, who was representing himself, by clarifying his

       question to the witness. We discern no bias on the part of the judge.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 10 of 13
[23]   Brown also points to several instances where the trial judge clarified questions

       and procedure, which Brown characterizes as the judge “giv[ing] testimony on

       her conclusion” and “interrupt[ing] questioning with no reason.” Appellant’s

       Br. p. 20. Review of the transcript reveals the judge refined Brown’s question to

       a witness to assist him in receiving the information he was seeking and

       explained to Brown the State’s burden of proof, the meaning of a witness’s

       testimony, and legal terminology and process. Despite the rule that the

       defendant who chooses to exercise his right to proceed pro se must accept the

       burden and hazards incidental to that position, see Tapia v. State, 753 N.E.2d

       581, 587 (Ind. 2001), the trial judge here made attempts to help Brown

       understand the procedure in order to facilitate the fact-finding process and keep

       the trial moving to conclusion. We therefore find no basis for Brown’s

       contention that the judge failed to act impartially.


[24]   Further, Brown asserts that the court’s admission of 404(b) evidence constitutes

       an act of bias. Brown objected at trial to the use of the transcript of his opening

       statement in another criminal case where he admitted to writing checks on the

       same account that he used in this case and that it was a closed account.

       Brown’s objection was that he had not been provided a copy of the transcript.

       The State responded that it filed its notice of intent to introduce 404(b) evidence

       and that its “recollection . . . [was that] it was stated [Brown] had to provide his

       own copy.” Tr., Vol. I, p. 178. At a pre-trial conference on April 1, 2015, at

       which Brown was present and in which he participated, the State explained to

       the court that it had paid for and obtained the transcript from the court reporter


       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 11 of 13
       and asked if that could be released to Brown. The court responded that the

       State is not allowed to release the transcript and that the court reporter would

       need to provide Brown with a copy. Brown posed no questions to the court in

       this regard, and he does not assert that he requested the transcript from the

       court reporter. Thus, we find this situation to be an example not of judge bias

       but of one of the many pitfalls of self-representation.


[25]   Finally, Brown claims the trial court refused his line of questioning and

       interrupted his closing argument. Review of the transcript of the incidents cited

       by Brown discloses that the judge instructed Brown to “get [his] line of

       questioning to something relevant,” to stop questioning a witness about a

       document that she did not prepare and upon which the court had already ruled,

       and to move on to other more persuasive points in his final argument because

       the court was not persuaded by the argument he was currently making. Id. at

       183. “‘Even where the court’s remarks display a degree of impatience, if in the

       context of a particular trial they do not impart an appearance of partiality, they

       may be permissible to promote an orderly progression of events at trial.’”

       Everling, 929 N.E.2d at 1288 (quoting Timberlake v. State, 690 N.E.2d 243, 256

       (Ind. 1997)). Again, Brown was representing himself, and, on these occasions

       noted by Brown, the judge was merely attempting to move the trial forward in

       an efficient manner. Brown has failed to demonstrate that the trial judge failed

       to act impartially.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 12 of 13
                                                Conclusion
[26]   For the reasons stated, we conclude that the trial court had both personal and

       subject matter jurisdiction in this case, that the charging information was not

       defective, that the evidence was sufficient to support Brown’s conviction, and

       that the trial court did not commit fundamental error.


[27]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-928 | June 29, 2017   Page 13 of 13
