FOR PUBLICATION                                      May 02 2013, 8:26 am




ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

CAROLINE B. BRIGGS                          GREGORY F. ZOELLER
Lafayette, Indiana                          Attorney General of Indiana

                                            IAN MCLEAN
                                            Deputy Attorney General
                                            Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

JOHANN SCHMIDT,                             )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 34A02-1207-CR-570
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


              APPEAL FROM THE HOWARD SUPERIOR COURT NO. 2
                       The Honorable Brant J. Parry, Judge
                         Cause No. 34D02-0807-FC-144



                                   May 2, 2013

                            OPINION–FOR PUBLICATION

BAKER, Judge
          In this interlocutory appeal, appellant-defendant Johann Schmidt appeals the trial

court’s denial of his motion to dismiss two counts of Theft,1 a class C felony, that were

filed in Howard County. Schmidt contends that those charges were part of an earlier

investigation in Miami County and that he was previously subjected to prosecution in

Miami County on those charges. Thus, Schmidt maintains that the Howard County

charges must be dismissed in accordance with the Successive Prosecution Statute,

Indiana Code section 35-41-4-4.

          The record shows that the Howard County prosecutor properly filed charges

against Schmidt as to the offenses that were committed in that county, and the Miami

County charges did not relate to the Howard County offenses. Therefore, the successive

prosecution statute was not violated, and we conclude that the trial court properly denied

Schmidt’s motion to dismiss.

          The judgment of the trial court is affirmed and we remand this cause for further

proceedings consistent with this opinion.

                                            FACTS

          Mark Bowyer owns Recycling and Processing Equipment, Inc. (RPE), a business

in Miami County that performs various construction-related activities, including

recycling and concrete crushing. At some point, Bowyer noticed a concrete-crushing

machine on I-465 and stopped to look at it, thinking that he might be able to use one like

it for a project in Michigan. Bowyer had also noticed some advertisements for Crushtek,

1
    Ind. Code § 35-43-4-2(a).
                                              2
Schmidt’s company.       Sometime in 2001, Bowyer contacted Crushtek about purchasing

one of its machines.

          Thereafter, Bowyer introduced Schmidt to Craig Langley, a vice president at First

Farmer’s State Bank (FFSB). Langley was present when Bowyer and Schmidt discussed

some potential business ideas, which were memorialized in a March 2002 agreement

resulting in a joint venture involving Bowyer’s and Schmidt’s respective companies.

This agreement provided for Bowyer’s advancement of funds to Schmidt for the purchase

of crushing equipment for Schmidt’s company. In exchange, Schmidt promised Bowyer

a 100% return on his investment that included discounted purchases of crushers for resale

and an exclusive right to sell Schmidt machines in various states.

          In light of the existing relationship between Bowyer and Schmidt, along with

Schmidt’s representations about his own business, Langley responded favorably when

Schmidt approached him about possible loans. FFSB granted loans to Schmidt in 2003

and in 2004. At some point, FFSB sent Schmidt loan documentation to his office in

Georgia. Schmidt signed the loan documents and returned them to FFSB, which then

transferred the money to Schmidt.

          Between January 2003 and March 2004, FFSB loaned Schmidt a total of

$790,147.74.      Over the next few years—up to and including 2006—Bowyer paid

Schmidt approximately $2 million. Some of the funds were advanced for Schmidt’s

company’s expenses, and some were for the purpose of purchasing crushing machines for

resale.

                                              3
      At some point, Schmidt failed to deliver some of the crushing machines that

Bowyer ordered. On one occasion, Schmidt asked Bowyer to deliver a crusher that

Bowyer had purchased to a firm in Kentucky as a demonstration model. The crusher

remained in Kentucky for months until Schmidt ultimately sold it to the Kentucky

business. However, Schmidt never paid Bowyer.

      On another occasion, Schmidt represented that two crushers Bowyer had

purchased were in Spain. When one of Bowyer’s employees traveled to Spain to retrieve

one of the machines, the employee was informed that its arrival had been delayed. The

employee eventually located a damaged crusher at a job site in the Spanish city of Ronda.

      The employee subsequently asked Schmidt’s sister, who was present, to transport

the machine to Malaga for shipment to Bowyer. However, the delivery driver told the

employee that Schmidt’s sister had ordered him to take the machine to Grenada. The

employee followed the machine and the driver, but was delayed by Schmidt’s sister at a

restaurant as the truck that was carrying the crusher drove away. When the employee

noticed the deception and could not locate the delivery truck, Schmidt’s sister demanded

an additional $106,000 to disclose the crusher’s location. Neither this machine nor the

other one that was allegedly in Spain, were ever delivered to Bowyer. Schmidt later

attempted to induce a Texas bank to loan another business over $300,000 to purchase the

machine in Spain. Schmidt eventually obtained a $40,000 cash “down payment” from

that other business for that machine. Appellant’s App. p. 365.



                                            4
       Schmidt became delinquent on his loans and despite FFSB’s demands for

payment, by 2007, Schmidt had repaid only the first loan. When FFSB employees

traveled to Georgia to visually inspect the collateral that Schmidt had pledged for the

loans, Schmidt repeatedly sent them to storage locations that did not exist. Schmidt

eventually instructed FFSB officials to meet him at his counsel’s office.       Schmidt

ultimately admitted that he had sold the collateral pledged to FFSB to other companies or

individuals.

       After Schmidt made numerous false promises, Bowyer eventually filed a

complaint with the Indiana State Police (ISP). The ISP investigated the circumstances

surrounding Schmidt’s victimization of FFSB, and the incidents that involved Bowyer.

Schmidt was charged in two different cases in Miami County. Under cause FC-188,

Schmidt was charged with seven counts, six of which involved Schmidt’s thefts and fraud

against FFSB, and the remaining count alleged that Schmidt stole a crusher that belonged

to Bowyer. On July 16, 2008, under cause FC-97, Schmidt was charged with stealing a

“Mobile Supertrack machine and/or money” that belonged to Bowyer that had a “fair

market value of $219,000.” Appellant’s App. p. 127.

       While these charges were pending, the State charged Schmidt with two additional

counts of theft on July 18, 2008. As amended in December 2008, Counts I and II alleged

that Schmidt committed class C felony theft by exerting unauthorized control over

property belonging to Bowyer on or about August 31, 2004, that was worth at least

$100,000. A third count alleged that Schmidt had committed theft as a class D felony by

                                           5
exerting unauthorized control over Bowyer’s property. All of these charges stemmed

from funds that Bowyer borrowed from Star Financial Bank in Howard County to send

Schmidt in Georgia for the purchase of crushing machines that were not delivered,

including the machine that was hidden from Bowyer’s employee in Spain.

      On September 19, 2009, Schmidt pleaded guilty to Count VII in Miami County,

under FC-188, which had accused him of theft of “property of First Farmer’s Bank and

Trust, to-wit: money.” Appellant’s App. p. 140, 147. The remaining charges were

dismissed. In June 2010, the charge in Miami County under FC-97 and Counts I and II in

Howard County were also dismissed.

      However, pursuant to the State’s motion, the trial court subsequently re-instated

the two class C felony theft charges that were alleged to have occurred in Howard

County.   On April 23, 2012, Schmidt moved to dismiss the case pursuant to the

successive prosecution statute, Indiana Code section 35-41-4-4.       More particularly,

Schmidt alleged:

      39. [Schmidt] requests this Court to dismiss the pending charges because
      he has previously been subjected to prosecution in Miami County for the
      same alleged scheme or plan.

      40. The Miami County charges have been concluded and jeopardy has
      attached.

      41. These charges should have been joined with the charges in Miami
      County as they arose out of a single joint venture and allege a theft/larceny
      against the same man by the same alleged victim.




                                           6
Appellant’s App. p. 24. The trial court denied Schmidt’s motion to dismiss and entered

an order, stating in part that

       5. The informations allege that the Thefts occurred in Howard County via
       computer network.

       6. The Miami County Prosecutor used his discretion to determine which
       charges the Defendant committed in his jurisdiction, and filed charges
       accordingly.

       7. The Miami County Prosecutor could not and did not file charges against
       the Defendant relating to the offenses committed in Howard County.

       8. The Howard County Prosecutor’s office filed charges against the
       Defendant alleging the Defendant committed a crime within Howard
       County.

       9. The Howard County Prosecutor will have the burden to prove the
       allegations made in the Information at trial.

Id. at 62.

       The trial court subsequently granted Schmidt’s motion to certify the ruling for

interlocutory appeal. And on August 18, 2012, we granted Schmidt’s motion to accept

jurisdiction over this interlocutory appeal.

                                 DISCUSSION AND DECISION

       Schmidt argues that the trial court erred in denying his motion to dismiss.

Succinctly stated, Schmidt maintains that “the Howard County charges are part of a prior

Miami County investigation and prosecution, should been joined with that prosecution

and should be dismissed as a successive prosecution.” Appellant’s Br. p. 1.




                                               7
       In resolving this issue, we note that the trial court’s ruling on a motion to dismiss

is within the trial court’s discretion and that ruling will not be disturbed absent an abuse

of discretion. Smith v. State, 780 N.E.2d 1214, 1216 (Ind. Ct. App. 2003). An abuse of

discretion occurs when the trial court’s decision is against the logic and effect of the facts

and circumstances before it. Weis v. State, 825 N.E.2d 896, 900 (Ind. Ct. App. 2005).

       We will not reweigh the evidence and will resolve any conflicts in the evidence in

favor of the trial court’s ruling. Caraway v. State, 891 N.E.2d 122, 124 (Ind. Ct. App.

2008). The trial court’s decision will be affirmed on any basis apparent in the record.

Jeter v. State, 888 N.E.2d 1257, 1267 (Ind. 2008).

       Under Indiana Code section 35-34-1-4(a)(7), a defendant may move to dismiss a

prosecution prior to trial if the “prosecution is barred by reason of a previous

prosecution.” Likewise, Indiana Code section 35-34-1-10(d) permits a defendant who

has been sentenced on a guilty plea to move for a dismissal of other indictments or

charging informations for “a related offense.” Under Indiana Code section 35-41-4-4(a),

prosecutions are subject to such motions to dismiss as follows:

              (1) There was a former prosecution of the defendant for a different
              offense or for the same offense based on different facts.


              (2) The former prosecution resulted in an acquittal or a conviction of
              the defendant or in an improper termination under section 3 of this
              chapter.


              (3) The instant prosecution is for an offense with which the
              defendant should have been charged in the former prosecution.

                                              8
However, “a prosecution is not barred under this section if the offense on which it is

based was not consummated when the trial under the former prosecution began.” I.C. §

35-41-4-4(b).

       If subsection (a)(3) is relevant, the matter should be decided under the law of

joinder. Williams v. State, 762 N.E.2d 1216, 1219 (Ind. 2002). Indiana Code section 35-

34-1-9(a)(2) provides that offenses must be joined for trial if they are “based on the same

conduct or on a series of acts connected together or constituting parts of a single scheme

or plan.”

       In light of this statute, Schmidt’s arguments that the determinative factors are

merely whether the offenses were discovered and investigated during the same time

frame, whether the defendant can string the offenses together to tell a story, or whether

the offenses “related to one or more facts or individuals” are misplaced. Appellant’s Br.

p. 14-16. Indeed, similar claims were rejected in State v. Dixon, 924 N.E.2d 1270, 1273

n.4 (Ind. Ct App. 2010), trans. denied. Joinder restrictions will only bar successive

prosecutions brought for a “single criminal transaction” identified by “a distinctive nature

. . . common modus operandi, and a common motive.” Williams, 762 N.E.2d at 1219.

       In this case, the ISP conducted two investigations. One of them explored the

allegations that Schmidt had deprived Bowyer of two crushers valued at approximately

$470,000, and then sold the machines to other customers. Appellant’s App. p. 359-60,

373. Bowyer reported to the ISP that he had paid Schmidt several million dollars for a


                                             9
number of crushing machines that he never received, and there was “proof that [Schmidt]

sold a crusher to [Bowyer], did not deliver it, changed the serial number on this same

crusher, and sold it to another individual or company.” Id. at 361.

       Bowyer testified in two depositions that he had given Schmidt nearly $2 million

between 2004 and 2006 as part of an arrangement whereby Schmidt promised a 100%

return on Bowyer’s investment through discounted purchases of crushers for resale and

exclusive dealer rights in several states. Id. at 159, 169-73, 244-45. Bowyer was able to

obtain these finances from various sources, including his own funds, private investors,

and various banks. Id. at 173-75, 239.

       When Bowyer’s funds were being advanced for the purchase of manufactured

crushers, Schmidt would supply him with the serial numbers on the machines. However,

several of these machines were never delivered. Id. at 237, 302, 319. As the incidents

involving the machines in Kentucky and Spain demonstrate, Schmidt repeatedly engaged

in deception, ultimately admitting that he never intended to deliver the machines that

Bowyer purchased. Appellant’s App. p. 220, 226, 296-97, 317.

       The other ISP investigation involved Schmidt’s dealings with FFSB, where

Schmidt “fraudulently secured several loans using collateral he no longer owned.” Id. at

363, 373. Investigation into these crimes disclosed that Schmidt solicited the following

loans from FFSB:

       Loan # 403-21565, issued on January 31, 2003, for $325,100
       Loan # 403-37982, issued on May 5, 2003, for $288,750
       Loan # 403-68680, issued on November 19, 2003, for $100,000; and

                                            10
       Loan # 403-30748, issued on March 11, 2004, for $76,297.74

Appellant’s App. p. 370-71.

       It is undisputed that Schmidt obtained these loans from FFSB via loan documents

sent to his Georgia office that he signed and returned to FFSB. Id. at 370-71. Hence,

they were not funds that Bowyer borrowed to pay Schmidt. Additionally, it is apparent

that Schmidt deceived FFSB officials and alienated the collateral by selling it to other

companies or individuals.

       In light of the above, Schmidt’s offenses were not “a single criminal transaction”

identified by “a distinctive nature . . . common modus operandi, and a common motive.”

Williams v. State, 762 N.E.2d at 1219. Instead, Schmidt committed offenses against two

victims, FFSB and Bowyer.        Moreover, the offenses that Schmidt committed against

each victim are also different in time and manner. Schmidt’s offenses against FFSB were

perpetrated by fraudulent loan agreements and the resulting theft of FFSB’s property,

either by Schmidt’s failure to repay the loan or by selling the collateral.

       As for Bowyer, Schmidt used the promise of a 100% return on the investment to

form a partnership or joint venture that involved exclusive sales territories, product

discounts, rights of representation and first refusal, and numerous other promises and acts

that had no connection with, or relevance to, Schmidt’s dealings with FFSB or his crimes

against it. That said, Schmidt’s separate series of distinct offenses against different

victims would not have required joinder of the charges. See Mayman v. State, 870

N.E.2d 523, 528 (Ind. Ct. App. 2007) (holding that the defendants’ decisions to commit

                                             11
burglaries against multiple victims did not permit joinder, because the offenses were only

of the same or similar character and not part of a single scheme).

       Finally, we reject Schmidt’s claim that Indiana Code section 35-34-1-10(c)

requires the State to join all “potential” charges in a single prosecution whenever joinder

“could” occur. Appellant’s Br. p. 16. This statute does not require the State to bring all

potential charges in a unified action.2

       In conclusion, Schmidt has failed to show that the trial court’s decision is without

support in the record or contrary to the facts and circumstances presented to it. Thus, we

decline to set aside the denial of Schmidt’s motion to dismiss.

       The judgment of the trial court is affirmed, and we remand this cause for further

proceedings consistent with this opinion.

MAY, J., and MATHIAS, J., concur.




2
  As an aside, we note that Schmidt is apparently arguing that he should not be prosecuted in Howard
County because the “acts in furtherance” of the agreement between him and Bowyer were allegedly
committed in Miami County. Appellant’s Br. p. 10, 18-20. However, the State points out, and we agree,
that because the criminal scheme caused Bowyer to borrow money from a bank in Howard County, and to
authorize the transfer of that money from a Howard County bank to Schmidt in Georgia, venue is proper
in Howard County. See Ind. Code § 35-32-1-1(d)(j). In fact, Schmidt ultimately concedes that venue in
this case does exist in Howard County. Appellant’s Br. p. 18-19.
                                                 12
