MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                           FILED
Memorandum Decision shall not be regarded as
                                                                 Apr 04 2017, 8:24 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,                  CLERK
                                                                  Indiana Supreme Court
collateral estoppel, or the law of the case.                         Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Paula M. Sauer                                            Curtis T. Hill, Jr.
Danville, Indiana                                         Attorney General of Indiana
                                                          Michael Gene Worden
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Natividad Perez-Mendoza,                                  April 4, 2017

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          32A01-1609-CR-2128
        v.                                                Appeal from the Hendricks Circuit
                                                          Court
State of Indiana,                                         The Honorable Daniel F. Zielinski,
                                                          Judge
Appellee-Plaintiff.
                                                          Trial Court Cause No. 32C01-1503-
                                                          F6-229




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017      Page 1 of 16
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Natividad Perez-Mendoza (Perez-Mendoza), appeals her

      conviction for three Counts of identity deception, Class D felonies, Ind. Code §

      35-43-5-3.5(a) (2014); and one Count of identity deception, a Level 6 felony,

      I.C.§ 35-43-5-3.5(a).


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                   ISSUES
[3]   Perez-Mendoza presents two issues on appeal, which we restate as follows:


      (1) Whether the trial court abused its discretion by admitting Perez-Mendoza’s

      employment records under the business record exception; and


      (2) Whether Perez-Mendoza’s four Counts of identity deception violated the

      prohibition against double jeopardy under the Indiana Constitution.


                      FACTS AND PROCEDURAL HISTORY
[4]   Sometime in 2011, Lisa Dumais (Dumais), formally known as Lisa Whitaker, a

      resident of Cleveland, Ohio, had her wallet stolen. Dumais’ wallet contained

      her Social Security card and driver’s license as well as her debit and credit

      cards. In 2014, the United States Internal Revenue Service (IRS) wrote to

      Dumais accusing her of owing $3,315.49 in taxes for failing to report income

      from Electronic Recyclers in Plainfield, Indiana. Dumais filed a police report

      in Ohio.



      Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 2 of 16
[5]   Sometime in March of 2015, the Plainfield Police Department received an

      email from “an outside agency out of Ohio” stating that Dumais’ Social

      Security Number (SSN) had being utilized by an individual at Electronic

      Recyclers in Plainfield. Detective Ryan Bugler (Detective Bugler), who was

      assigned to the case, visited Electronic Recyclers and spoke with the human

      resources department. After going through its records, the human resources

      department confirmed Dumais’ SSN had been used by Perez-Mendoza. Perez-

      Mendoza was cooperative, and she accompanied Detective Bugler to the police

      station. After Perez-Mendoza was Mirandrized and a Spanish interpreter was

      present in the room, Perez-Mendoza stated that in 2012, being out of a job and

      having three children to support in Mexico, she was approached by a woman

      who identified herself as Lisa Whitaker, and the woman offered her a Social

      Security card and driver’s license to help her find employment. Perez-Mendoza

      admitted that she used Dumais’ name and SSN to obtain employment at

      Electronic Recyclers. Perez-Mendoza also stated that she did not know it was

      illegal to obtain employment using false identification.


[6]   On March 26, 2015, the State filed an Information, charging Perez-Mendoza

      with Counts I-III, identity deception, Class D felonies, I.C. § 35-43-5-3.5(a)

      (2014), and Count IV, identity deception, a Level 6 felony, I.C. § 35-43-5-3.5(a).

      Shortly before her jury trial, Perez-Mendoza filed a motion to dismiss Counts

      II, III, and IV, pursuant to the double jeopardy clause under the Indiana

      Constitution. The trial court did not make a ruling on that motion and the

      matter proceeded to trial. During her trial on July 26, 2016, over Perez-


      Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 3 of 16
      Mendoza’s counsel’s objection, the trial court admitted State’s Exhibit 1, which

      mostly consisted of Perez-Mendoza’s employment records from Electronic

      Recyclers, under the business records exception. Perez-Mendoza also renewed

      her motion to dismiss Counts II through IV under the double jeopardy

      prohibition, but was denied. At the close of the evidence, the trial court found

      Perez-Mendoza guilty as charged. On August 22, 2016, the trial court held

      Perez-Mendoza’s sentencing hearing. The trial court entered a judgement of

      conviction on all four Counts. Subsequently, the trial court merged Counts II,

      III, and IV into Count I; however, it sentenced Perez-Mendoza to concurrent

      sentences of one year to each Count in the Hendricks County Jail.


[7]   Perez-Mendoza now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
                                          I. Admission of State’s Exhibit 1

[8]   Perez-Mendoza first argues that the State’s Exhibit 1, which consisted of her

      employment records from Electronic Recyclers, did not qualify for admission

      under the business records exception and should have been excluded from the

      evidence. It is well established that the trial court has broad discretion in ruling

      on the admissibility of evidence, and, on review, we will disturb its ruling only

      on a showing of abuse of discretion. Sparkman v. State, 722 N.E.2d 1259, 1262

      (Ind. Ct. App. 2000). When reviewing a decision under an abuse of discretion

      standard, we will affirm if there is any evidence supporting the decision. Id. A

      claim of error in the admission or exclusion of evidence will not prevail on

      Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 4 of 16
      appeal unless a substantial right of the party is affected. Ind. Evidence Rule

      103(a). In determining whether error in the introduction of evidence affected a

      defendant’s substantial rights, we assess the probable impact of the evidence on

      the jury. Sparkman, 722 N.E.2d at 1262.


[9]   As noted, Perez-Mendoza used Dumais’ identity to obtain employment, and

      the State’s Exhibit 1 was a seventy-six-page document from Electronic

      Recyclers which included Perez-Mendoza’s employment application, offer

      letter, copies of timecards, checks and pay stubs, performance evaluation, a

      notice of pay increase, a direct deposit form, various tax and investment forms,

      as well as Dumais’ identification card and Social Security card. When the State

      offered Exhibit 1 for admission, Perez-Mendoza objected by contending that it

      was not properly authenticated under the business records exception. In

      response, the State argued, “[T]here’s what’s called a business record affidavit.

      It is signed by the record keeper of the corporation that holds and creates this

      record. It is notarized. It is from California. It is the authentication that shows

      that these are actual records kept in the ordinary course of Electronic Recycler’s

      business.” (Tr. p. 139). Based on the State’s argument, the trial court admitted

      State’s Exhibit 1 and stated:

      Uh Ladies and Gentlemen, um when you have documents brought in you
      can’t just say hey, I want to give this document. It has to be some sort of
      authentication that can be by the person saying yes, that’s my document that I
      prepared, or it can be done by affidavit. And the affidavit has to say
      something like, this is a true and accurate copy of what’s in our business
      records. That meets uh Rule 803[(6)]. There is an affidavit. It is properly
      authenticated. Objection overruled.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 5 of 16
       (Tr. pp. 139-140). On appeal, Perez-Mendoza maintains that the certificate

       attached to the State’s Exhibit 1, did not “meet the requirements of Rule 803(6)

       (A)-(C).” (Appellant’s Br. p. 21). Perez-Mendoza also asserts that the

       certificate was not signed under the penalty of perjury. In addition, she

       contends that “the certificate did not set forth the qualifications of the purported

       custodian or [an]other qualified custodian.” (Appellant’s Br. p. 21).


[10]   The reliability of business records stems from the fact that the organization

       depends on them to operate, from the sense that they are subject to review,

       audit, or internal checks, from the precision engendered by the repetition, and

       from the fact that the person furnishing the information has a duty to do it

       correctly. Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997). Therefore, the

       proponent of a business record can satisfy the requirements of Evidence Rule

       803(6) by calling a witness who has a functional understanding of the record

       keeping process of the business with respect to the specific entry, transaction, or

       declaration contained in the document.” Rolland v. State, 851 N.E.2d 1042,

       1045 (Ind. Ct. App. 2006). “The witness need not have personally made or

       filed the record or have firsthand knowledge of the transaction represented by it

       in order to sponsor the exhibit.” Id. Moreover, a sponsoring witness is not

       required to testify that she knows the person who recorded the information had

       personal knowledge of the transactions. Payne v. State, 658 N.E.2d 635, 645

       (Ind. Ct. App. 1995), trans. denied. Records kept in the regular course of

       business are presumed to have been created by someone with knowledge, unless

       there is a showing to the contrary. Id.


       Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 6 of 16
[11]   In the instant case, the State did not offer the testimony of a custodian or other

       qualified witness to testify with respect to State’s Exhibit 1; therefore, to be

       admissible, State’s Exhibit 1 must have been accompanied by a certification

       that complies with Evidence Rule 902(11), which provides that, “[u]nless the

       source of information or the circumstances of preparation indicate a lack of

       trustworthiness, the original or a copy of a domestic record that meets the

       requirements of Rule 803(6)(A)–(C), as shown by a certification under oath of

       the custodian or another qualified person,” is self-authenticating and requires

       no extrinsic evidence of authenticity to be admissible. Here, the State’s exhibit

       was accompanied by the following certificate:




       Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 7 of 16
[12]   (State’s Exh. 1). The State agrees with Perez-Mendoza that the certificate in

       question did not show that the requirements of Rule 803(6)(A)–(C), were met.

       Specifically, the affiant in this case, Carol DeBillis, did not state that she is the

       keeper of the employment records for Electronic Recyclers, nor did she aver

       Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 8 of 16
       that records contained in the exhibit were made regularly in the Electronic

       Recyclers’ business, or that she has personal knowledge of the records.


[13]   We agree with Perez-Mendoza’s contention that the certificate in question falls

       short of the requirements of Evidence Rule 803(6)(A)-(C)—i.e., it fails to show

       whether the record was made at or near the time by someone with knowledge,

       it also fails to show that the record was kept in Electronic Recyclers’ regular

       course of business, and it failed to aver that it is in Electronic Recyclers’ regular

       practice to make the record. Because the admission of State’s Exhibit 1 lacked

       a proper foundation to establish it as a business record, it should not have been

       admitted over Perez-Mendoza’s objection, and we must determine if the error

       was harmless.


[14]   When a trial court abuses its discretion in the admission of evidence, we will

       reverse only if the error is inconsistent with substantial justice or affects the

       substantial rights of a party. See Ind. Trial Rule 61; Pitts v. State, 904 N.E.2d

       313, 318 (Ind. Ct. App. 2009), trans. denied. In viewing the effect on a

       defendant’s substantial rights, we look to the probable impact on the factfinder.

       Pitts, 904 N.E.2d at 318. “The improper admission of evidence is harmless

       error when the conviction is supported by substantial independent evidence of

       guilt as to satisfy the reviewing court that there is no substantial likelihood that

       the questioned evidence contributed to the conviction.” Lafayette v. State, 917

       N.E.2d 660, 666 (Ind. 2009). “Reversal may be compelled if the record as a

       whole discloses that the erroneously admitted evidence was likely to have had a

       prejudicial impact on the fact-finder, thereby contributing to the judgment.”

       Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 9 of 16
       Ground v. State, 702 N.E.2d 728, 732 (Ind. Ct. App. 1998). “To determine

       whether the erroneous admission of irrelevant and prejudicial evidence . . . is

       harmless, we judge whether the jury’s verdict was substantially swayed. If the

       error had substantial influence, or if one is left in grave doubt, the conviction

       cannot stand.” Lafayette v. State, 917 N.E.2d 660, 666-67 (Ind. 2009) (citation

       and internal quotation marks omitted).


[15]   In her appellate brief, Perez-Mendoza argues that her case is analogous to

       Ground, 702 N.E.2d at 729, whereby we reversed the defendant’s convictions

       for forgery and theft due to the erroneous admission of improper evidence. In

       Ground, the defendant was working part-time at Employability Services, and as

       part of her job, the defendant frequently wrote checks and presented them to the

       owner of the company, Judith Woods, for her signature. Id. In August of 1996,

       Woods noticed that the bookkeeping was not current and that checks were

       missing from the company’s check book. Id. Woods subsequently received a

       bank statement which indicated that a number of unauthorized and unrecorded

       checks had been written on the company’s account. Id. Woods then conducted

       an audit and obtained microfilm copies of the checks from the bank. Id. In

       total, twenty-two unauthorized checks had been written between May and

       October of 1996. Id. Over the defendant’s objection, the trial court admitted

       State’s Exhibit 1, which contained certain bank records from the defendant’s

       account at National City Bank, including a copy of the defendant’s signature

       card from her savings account and microfilm copies of a deposit slip from the

       defendant’s checking account, a cashout slip in the amount of $400.00, a

       Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 10 of 16
$975.00 unauthorized check paid by Employability Services to the defendant,

and three checks paid to the defendant from other payors. Id. at 730. In

support of Exhibit 1, the State presented an affidavit by Michael Guio, a fraud

investigation manager with National City Bank, swearing that the documents

contained in State’s Exhibit 1 were true and accurate documents kept in

National City Bank’s ordinary course of business. Id. The trial court admitted

it into evidence, and at the close of the defendant’s bench trial, the defendant

was found guilty as charged. Id. On appeal, the defendant argued that the

admission of the bank records under the business records exception was a

reversible error. Id. The defendant contended and the State agreed, that the

affidavit of the fraud investigator was insufficient in two respects: (1) it failed to

aver that the records were transmitted by a person with personal knowledge; (2)

it failed to aver that it is National City Bank’s regular practice to make the

records. Id. at 731. On the first deficiency, we concluded that the Rules of

Evidence permit a rebuttable presumption that the business records are made by

someone who had personal knowledge, as such, we conduced that the

defendant had failed to rebut that presumption. Id. On the second deficiency,

however, we concluded that without proof that the bank records are regularly

made, the State had not laid a proper foundation for the exhibit under the plain

meaning of Rule 803(6). Id. Accordingly, we concluded that the trial court

erred in admitting the records. Id. That said, we additionally found that

erroneous admission of the exhibit in Ground, was not harmless. Id. at 732. As

such, we concluded that the State’s repeated references to the exhibit impacted


Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 11 of 16
       the judgement of the fact-finder. Id. Accordingly, we reversed the defendant’s

       convictions. Id.


[16]   Here, unlike Ground, the State presented other evidence apart from the

       challenged employment records contained in State’s Exhibit 1—i.e., testimonies

       from Detective Bugler and Perez-Mendoza. At trial, Detective Bugler testified

       that when he interviewed Perez-Mendoza, she stated that she was born in

       Mexico and when she moved to the United States, she “didn’t have the right

       paperwork to gain employment.” (Tr. p. 151). Detective Bugler added that

       Perez-Mendoza advised him that in 2012, she was unemployed and that a lady,

       who identified herself as Lisa Whitaker, approached her and helped her obtain

       identification documents. Perez-Mendoza also reiterated that by using Lisa

       Whitaker’s ID, she was able find a paying job. Perez-Mendoza added that

       while working at Electronic Recyclers, she “pretended to be Lisa Whitaker.”

       (Tr. p. 205).


[17]   “The improper admission of evidence is harmless error when the reviewing

       court is satisfied that the conviction is supported by substantial independent

       evidence of guilt so that there is no substantial likelihood that the challenged

       evidence contributed to the conviction.” Meadows v. State, 785 N.E.2d 1112,

       1121 (Ind. Ct. App. 2003), trans. denied. Because the fact-finder in the instant

       case was presented with other evidence showing that Perez-Mendoza, using

       Dumais’ stolen identification documents, posed as Lisa Whitaker to obtain

       employment at Electronic Recyclers, any error in the admission of the State’s

       Exhibit 1 was harmless.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 12 of 16
                                            II. Double Jeopardy

[18]   Finally, Perez-Mendoza argues that her four convictions of identity deception

       are barred by constitutional protections against double jeopardy clause of the

       Indiana Constitution, article 1, § 14. She contends all but one of the

       convictions must be vacated. The State counters that Perez-Mendoza was not

       subjected to double jeopardy because the trial court merged Counts II, III, and

       IV to Count I, and did not impose any sentences on Counts II through IV. We

       disagree.


[19]   The Indiana Constitution provides that “[n]o person shall be put in jeopardy

       twice for the same offense.” IND. CONST. art. 1, § 14. “Indiana’s Double

       Jeopardy Clause . . . prevent[s] the State from being able to proceed against a

       person twice for the same criminal transgression.” Hopkins v. State, 759 N.E.2d

       633, 639 (Ind. 2001) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999)). The Indiana Supreme Court has held that “two or more offenses are the

       ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution,

       if, with respect to either the statutory elements of the challenged crimes or the

       actual evidence used to convict, the essential elements of one challenged offense

       also establish the essential elements of another challenged offense.” Richardson,

       717 N.E.2d at 49.


[20]   “An offense is the same as another under the actual evidence test when there is

       a reasonable possibility that the evidence used by the fact-finder to establish the

       essential elements of one offense may have been used to establish the essential


       Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 13 of 16
       elements of a second challenged offense.” Id. The Indiana Supreme Court

       clarified this test in Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002), where the

       court held that the test is not whether the evidentiary facts used to establish one

       of the essential elements of one offense may also have been used to establish

       one of the essential elements of a second challenged offense; rather, the test is

       whether the evidentiary facts establishing the essential elements of one offense

       also establish all of the elements of a second offense. If the evidentiary facts

       establishing one offense establish only one or several, but not all, of the essential

       elements of the second offense, there is no double jeopardy violation. Id.


[21]   In this case, the State’s evidence established that in 2012, Perez-Mendoza, using

       Dumais’ Social Security card and identification card, applied for a job through

       a staffing agency in Plainfield, Indiana and was assigned to work with

       Electronic Recyclers. From May of 2012 until January of 2015, Perez-

       Mendoza received paychecks under Lisa Whitaker’s name. The charging

       Information shows that the State charged Perez-Mendoza with four Counts of

       identity deception for each year she worked at Electronic Recyclers using

       Dumais’ identity. Here, after the jury trial, Perez-Mendoza was found guilty as

       charged. At the close of the sentencing hearing, the trial court stated as follows:

       [Perez-Mendoza], you have been found guilty by a jury of your peers of three
       [C]ounts of identity deception as [] [C]lass D felon[ies] and one [C]ount as a
       [L]evel 6 felony. The maximum penalty for a D felony is three years, the
       minimum is six months. The maximum for a L[evel] 6 [felony] is two and a
       half years and the minimum is six months . . . . I’m going to, again we’ve
       already entered judgment, but I’m going to merge all four of those [C]ounts
       into a [C]lass D felony . . . I’m going to sentence you on each. . . on [C]ount
       one, I’m going to sentence you to one year [in] Hendricks County Jail[;]

       Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 14 of 16
       [C]ount two, one year [in] Hendricks County Jail [;] [C]ount three, one year
       [in] Hendricks County Jail[;] [C]ount four, one year [in] Hendricks County
       Jail. Again all those are merged, give you credit for fifty eight actual 20 days
       plus fifty eight, suspend the reminder of the time on to probation.


       (Tr. Vol. II, pp. 52-53). The trial court’s written Judgement of Conviction and

       Sentencing Order mirrored the oral sentencing statement. Specifically, the

       order shows a judgement of conviction for all four Counts of identity deception;

       but, in the sentencing section, the trial court merges Counts II, III, and IV to

       Count I, and Perez-Mendoza is only sentenced with respect to Count I.

       However, the Abstract of Judgement reflects something different. In part one,

       the trial court lists the “DISPOSITION” for Count I as “Finding of Guilty,”

       and Counts II through IV as “Conviction Merged.” (Appellant’s App. Vol. II,

       p. 174). Then, below, the court enters a single sentence of 116 days executed

       and 249 days suspended to probation.


[22]   Here, we find that the trial court’s act of merging, without also vacating Perez-

       Mendoza’s Counts II, III, and IV convictions, is not sufficient to cure a double

       jeopardy violation. In Green v. State, 856 N.E.2d 703, 704 (Ind. 2006), our

       Supreme Court held that “a merged offense for which a defendant is found

       guilty, but on which there is neither a judgment nor a sentence, is

       ‘unproblematic’ as far as double jeopardy is concerned.” The facts before us are

       distinguishable from Green because the trial court entered judgment on all

       Counts of identity deception. The act of merging the previously entered

       judgments at the sentencing hearing did not cure the double jeopardy violation.



       Court of Appeals of Indiana | Memorandum Decision 32A01-1609-CR-2128 | April 4, 2017   Page 15 of 16
[23]   As noted, a double jeopardy violation occurs when judgments of conviction are

       entered and cannot be remedied by the “practical effect” of concurrent

       sentences or by merger after conviction has been entered. Morrison v. State, 824

       N.E.2d 734, 741-42 (Ind. Ct. App. 2005), trans. denied. The trial court’s oral

       and written sentencing order reflect judgments of conviction on all four Counts

       of identity deception against Perez-Mendoza, yet it chose to “merge” the

       sentences rather than vacating her convictions for Counts II though IV.

       Accordingly, we remand this cause to the trial court with an order to vacate

       Perez-Mendoza’s Counts II, III, and IV convictions for identity deception. In

       addition, we also order the amendment of the trial court’s Judgment of

       Conviction and Sentencing Order to reflect conviction of only Count I and to

       send the amended documents to the Department of Correction.


                                             CONCLUSION
[24]   In sum, we conclude that the trial court committed a harmless error in

       admitting State’s Exhibit 1. Nonetheless, because Perez-Mendoza’s convictions

       with respect to Counts II, III, and IV constitute double jeopardy, we remand to

       the trial court with an order to vacate those three convictions.


[25]   Affirmed in part, reversed in part, and remanded with instructions.


[26]   Crone, J. and Altice, J. concur.




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