MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing                          FILED
the defense of res judicata, collateral                          Apr 19 2017, 10:03 am
estoppel, or the law of the case.
                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Darren Bedwell                                           Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Garden,                                            April 19, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1606-CR-1337
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff.                                      Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1405-FC-26051



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017     Page 1 of 20
                                          Case Summary
[1]   Appellant-Defendant David Garden engaged in a series of fraudulent real estate

      transactions from approximately 2010 until 2014. In May of 2014, Garden was

      charged with twenty-seven felony counts. The first count alleged that Garden

      had committed acts supporting a pattern of racketeering activity by means of

      forgery and theft. The others alleged that Garden had committed numerous

      forgeries and thefts. One of the theft charges was dismissed prior to trial.

      Garden’s remaining charges consisted of one count of Class C felony corrupt

      business influence, eleven counts of Class C felony forgery, and fourteen counts

      of Class D felony theft.


[2]   The case was tried before a jury on April 4, 2016. Appellee-Plaintiff the State of

      Indiana (“the State”) dismissed one theft count following the presentation of the

      evidence, and the jury found Garden not guilty of three other theft counts. The

      jury found Garden guilty of each of the remaining twenty-two counts. The trial

      court subsequently sentenced Garden to an aggregate term of twenty-four years,

      with three years executed in the Department of Correction (“DOC”), three

      years executed in community corrections, eighteen years suspended, and eight

      years and five days served on probation.


[3]   On appeal, Garden challenges the sufficiency of the evidence to sustain six of

      his convictions for Class C felony forgery. Finding that the evidence is

      sufficient to sustain the challenged convictions, we affirm.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 2 of 20
                              Facts and Procedural History1
[4]   From approximately 2010 through 2014, Garden engaged in a series of

      fraudulent real estate transactions. In some cases, Garden would offer to sell a

      home for an individual, obtain a quitclaim deed for the property, and then enter

      into a rent-to-own agreement with a subsequent victim that was contrary to the

      authority given to him by the original owner. In other cases, Garden would get

      his victims to sign rental agreements or lease- or rent-to-own agreements on

      properties where either (1) he did not have the authority to make said

      agreement or (2) where rental was ultimately not feasible. Once the rental

      agreements relating to these properties fell through, Garden would not return

      any funds paid by his victims in compliance with the agreements.


[5]   On May 19, 2014, the State charged Garden with twenty-seven felony counts,

      alleging under Count I that Garden had committed acts supporting a pattern of

      racketeering activity by means of forgery and theft. The additional twenty-six

      counts alleged that Garden had committed numerous forgeries and thefts. The

      State subsequently dismissed Count Twenty-two, which alleged that Garden

      had committed Class D felony theft. Garden’s remaining charges consisted of




      1
        We note that because Garden was charged with and convicted of such a large number of crimes, it would
      be a burden to the reader to include facts relating to the unchallenged convictions in the instant appeal. In
      addition, it seems most helpful to the reader to provide only general facts and the case’s procedural history in
      this section. Specific facts relating to the challenged convictions will be included in the Discussion and
      Decision section below.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017               Page 3 of 20
      one count of Class C felony corrupt business influence, eleven counts of Class C

      felony forgery, and fourteen counts of Class D felony theft.


[6]   The matter proceeded to an April 4, 2016 jury trial. Following the presentation

      of the evidence, the State dismissed Count Nineteen, which alleged that Garden

      had committed Class D felony theft. The jury subsequently found Garden not

      guilty of Counts Ten, Twelve, and Seventeen, all of which alleged that Garden

      had committed Class D felony theft. The jury found Garden guilty of each of

      the remaining twenty-two counts. On May 25, 2016, the trial court sentenced

      Garden to an aggregate term of twenty-four years, with three years executed in

      the DOC, three years executed in community corrections, eighteen years

      suspended, and eight years and five days served on probation. This appeal

      follows.



                                  Discussion and Decision
[7]   Garden contends that the evidence is insufficient to sustain six of his

      convictions for Class C felony forgery. Specifically, Garden challenges the

      sufficiency of the evidence to sustain his forgery convictions under Counts Six,

      Eleven, Fifteen, Sixteen, Eighteen, and Twenty-four.2




      2
        The “Statement of the Issues” portion of Garden’s Appellant’s brief also indicates that Garden is
      challenging the sufficiency of the evidence to sustain Count 8. However, Garden presents no argument in
      relation to Count 8. As such, any challenge to Count 8 is waived. See Hollowell v. State, 707 N.E.2d 1014,
      1025 (Ind. Ct. App. 1999).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017            Page 4 of 20
               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

      quotations omitted). “In essence, we assess only whether the verdict could be

      reached based on reasonable inferences that may be drawn from the evidence

      presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

      original). Upon review, appellate courts do not reweigh the evidence or assess

      the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

      2002).


[8]   At the time Garden committed the charged offenses, Indiana Code section 35-

      43-5-2(b) provided that “[a] person who, with intent to defraud, makes, utters,

      or possesses 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; commits forgery, a Class




      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 5 of 20
      C felony.” In interpreting this statute, the Indiana Supreme Court held as

      follows:


              We think that the express language of our current forgery statute
              makes it clear that our legislature intended to extend the common
              law offense of forgery to include crimes never before deemed to
              be within the scope of the offense. This has been done by shifting
              the focus from the “false making” of things that may be forged to
              the means whereby forgery may be accomplished. As our Court
              of Appeals stated in Bowman v. State (1979), Ind. App., 398
              N.E.2d 1306, 1309, “[w]e believe that in keeping with the intent
              and spirit and the express wording of the new criminal code, and
              specifically the forgery section, that in addition to the old
              definitions of forgery, forgery includes every act which
              fraudulently makes an instrument appear what it is not.”

              Our application of the forgery statute is also aided by the broad
              definitions contained within the Code. “‘Utter’ means to issue,
              authenticate, transfer, publish, deliver, sell, transmit, present, or
              use.” Ind. Code § 35-41-1-2 (emphasis added). “‘Make’ means
              to draw, prepare, complete, or alter any written instrument in
              whole or in part.” Ind. Code § 35-43-5-1 (emphasis added).
              “‘Written instrument’ means a paper, document, or other
              instrument containing written matter and includes ... other
              objects or symbols of value, right, privilege, or identification.”
              Id.


      Jordan v. State, 502 N.E.2d 910, 913 (Ind. 1987).


                 A. Facts and Analysis Relating to Count Eleven
[9]   In 2000, Kenneth McCalep purchased a home located at 2002 South Wagner

      Lane in Indianapolis (the “Wagner property”). In 2011, McCalep was having



      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 6 of 20
       problems paying his mortgage when he came into contact with Garden.

       Garden told McCalep that he could help McCalep sell the Wagner property.


[10]   McCalep ultimately decided to work with Garden to sell the Wagner property.

       In order to do so, McCalep signed the following documents at Garden’s

       direction: (1) a Listing Contract, (2) a Quitclaim Deed indicating that the

       Wagner property was being sold to Garden for $100.00 in consideration, and

       (3) a Buyer’s Exclusive Agency Contract. McCalep discussed these forms with

       Garden at the time each form was executed. Each time, Garden indicated that

       the forms were “whatever you fill out when you try to sell your home or put it

       on the market as listed.… Basically, something that [was] needed to put the

       house on the market [and for Garden] to try to sell it for [McCalep].” Tr. Vol.

       II, p. 391.


[11]   Some time later, Garden informed McCalep that he needed to vacate the

       Wagner property as part of the selling process. McCalep and his family moved

       to another location. At some point after he had moved out of the Wagner

       property, McCalep was informed by relatives that there were other persons

       living in the Wagner property. McCalep was surprised because Garden had not

       informed him that he had sold the Wagner property and McCalep had not

       given permission for anyone to move into the Wagner property. McCalep then

       reached out to Garden and the following conversation took place:

               Well, I told him that at that time I thought that he was going to
               just sell the house so I could try to get it sold. And then a
               conversation struck up that he said something in regards to that

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 7 of 20
               Quitclaim Deed that he had presented to me and that I had sold
               the house to him and I no longer owned the house and he could
               do whatever he wanted to with it.


       Tr. Vol. II, p. 394. McCalep never received any rent money from Garden or

       from the individuals who had moved into the Wagner property.


[12]   After contacting law enforcement, McCalep eventually regained possession of

       the Wagner property. Upon regaining possession, McCalep observed the

       following:

               The plumbing was all messed up. The electrical -- I had an alarm
               system in there. It was totally disassembled. My air conditioner
               unit was stolen. The furnace was stripped out. Feces all over the
               floor, carpet burnt. It was all that kind of stuff.


       Tr. Vol. II, p. 398.


[13]   The State subsequently alleged that Garden “on or about October 27, 2011, did,

       with intent to defraud, make a written instrument, that is: a document entitled

       Quitclaim Deed … in such a manner that said instrument purported to have

       been made by the authority of Kenneth McCalep, who did not give

       authority[.]” Appellant’s App. Vol. II, pp. 108-09. Following trial, the jury

       found that the evidence was sufficient to prove the allegations set forth above.


[14]   Review of the record reveals that Garden obtained McCalep’s signature on the

       quitclaim deed through fraud. Garden obtained McCalep’s signature on the

       deed under the pretense that he was going to sell the Wagner property for

       McCalep—which was the only authority that McCalep understood himself to
       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 8 of 20
       be granting to Garden by signing the document. McCalep neither understood

       that he was signing a document which would transfer his ownership of the

       property nor did he intend to do so.


[15]   By deceiving McCalep in this way, Garden made the Quitclaim Deed appear to

       be something which it was not. Again, the Indiana Supreme Court has held

       that forgery “includes every act which fraudulently makes an instrument appear

       what it is not.” Jordan, 502 N.E.2d at 913. Thus, because Garden used

       fraudulent means to obtain McCalep’s signature on the Quitclaim Deed,

       Garden’s conduct falls within the purview of the forgery statute. The evidence,

       therefore, is sufficient to sustain Garden’s conviction under Count Eleven.


       B. Facts and Analysis Relating to Counts Fifteen and Sixteen
[16]   In 1996, Anthony Pope purchased a home located at 2467 Finley Avenue in

       Indianapolis (the “Finley property”). Garden had assisted Pope in purchasing

       the Finley property, so Pope decided to talk to Garden when he decided to sell

       the property in 2012. Pope indicated that he wanted to sell the Finley property

       and did not want to lease it out. Garden gave Pope four documents to sign but

       did not explain what any of the documents were. Pope did not inquire about

       the documents because he “went to [Garden] in trust” based on their prior

       relationship. Tr. Vol. II, p. 500. Pope understood that he “had papers to sign”

       so he signed the papers that Garden “put in front of [him].” Tr. Vol. II, p. 500.

       Pope ultimately signed the following documents at Garden’s direction: (1) a

       Quitclaim Deed indicating that the Finley property was being sold to Garden

       for $1.00 in consideration, (2) a Listing Contract granting Garden the exclusive
       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 9 of 20
       right to sell the Finley property, (3) a Purchase agreement indicating that the

       property would be sold to April Brooks and Gary Jones Jr. for $44,900.00 with

       $1.00 in earnest money, and (4) a Short Sale Addendum to the Listing Contact.

       Garden did not give Pope any money in connection to the Finley property.


[17]   Following the execution of these documents, Pope learned that someone was

       living at the Finley property. Pope drove past the property and observed

       damage to the garage door and a window. When Pope questioned Garden

       about this fact, Garden indicated that he had buyers lined up and that the

       persons living at the Finley property were the persons who were going to

       purchase it. Pope indicated that he felt that he had been “misled” because he

       was not aware that anybody was going to be living in the house prior to the sale

       of the property but rather believed “it was going to be a shut and cold, you

       know, buy and sell” arrangement. Tr. Vol. III, p. 505. Garden ended the

       conversation and would not engage in future conversations with Pope.


[18]   Pope eventually regained possession of the Finley property after going “through

       the court” system. Tr. Vol. III, p. 506. Upon regaining possession, Pope

       observed that the Finley property “was destroyed.” Tr. Vol. III, p. 506. Pope

       ultimately repaired and sold the Finley property.


[19]   Around the time that Pope approached Garden about selling the Finley

       property, Gary Jones and his wife April Brooks spoke to Garden about entering

       into a rent- or lease-to-own agreement. Garden suggested that Jones and

       Brooks “check out” the Finley property, after which Jones and Brooks signed a


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 10 of 20
       Lease with Option to Purchase. Tr. Vol. III, p. 515. Pope neither (1) saw or

       signed the Lease with Option to Purchase that Jones and Brooks signed in

       relation to the Finley property nor (2) gave Garden permission to have anyone

       sign the documents in relation to the Finley property.


[20]   After signing the lease document, Jones and Brooks paid a $1200.00 down

       payment to Garden. They lived at the Finley property for about a year.

       However, Jones and Brooks vacated the property when a law enforcement

       officer “showed up at the house with paperwork stating that [Pope] owned it.”

       Tr. Vol. III, p. 520.


[21]   The State subsequently alleged that Garden “on or about July 11, 2012, did,

       with intent to defraud, make a written instrument, that is: a document entitled

       Quitclaim Deed … in such a manner that said instrument purported to have

       been made by the authority of Anthony Pope, who did not give authority[.]”

       Appellant’s App. Vol. II, pp. 110. The State also alleged that Garden “on or

       about September 29, 2012, did, with intent to defraud, utter to April Brooks

       and/or Gary Jones a written instrument, that is: a document entitled Lease

       with Option to Purchase … in such a manner that said instrument purported to

       have been made by the authority of Anthony Pope, who did not give

       authority[.]” Appellant’s App. Vol. II, p. 111. Following trial, the jury found

       that the evidence was sufficient to prove the allegations set forth above.


[22]   Review of the record reveals that Garden obtained Pope’s signature on the

       quitclaim deed through fraud. Garden obtained Pope’s signature on the deed


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 11 of 20
       under the pretense that he was going to sell the Finley property for Pope—

       which was the only authority that Pope understood himself to be granting to

       Garden by signing the document. Pope neither understood that he was signing

       a document which would transfer his ownership of the property nor did he

       intend to do so.


[23]   By deceiving Pope in this way, Garden made the Quitclaim Deed appear to be

       something which it was not. Again, the Indiana Supreme Court has held that

       forgery “includes every act which fraudulently makes an instrument appear

       what it is not.” Jordan, 502 N.E.2d at 913. Thus, because Garden used

       fraudulent means to obtain Pope’s signature on the Quitclaim Deed, Garden’s

       conduct falls within the purview of the forgery statute. The evidence, therefore,

       is sufficient to sustain Garden’s conviction under Count Fifteen.


[24]   Review of the record also reveals that Garden fraudulently executed a

       document entitled Lease with Option to Purchase for the Finley property with

       Jones and Brooks. This document stated that Jones and Brooks shall have an

       option to purchase the Finley property from Garden at any time during the

       term of the lease. Pope, the true owner of the property, was neither aware of

       nor consented to this lease. Likewise, Pope had not knowingly given Garden

       the authority to lease the Finley property. Jones and Brooks were forced to

       vacate the Finley property after Pope became aware of the lease agreement and

       asserted his legal right to the property.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 12 of 20
[25]   Garden led Jones and Brooks to believe that they had both a valid lease and a

       valid option to purchase the Finley property. By deceiving Jones and Brooks in

       this way, Garden made the lease agreement appear to be something it was not.

       Again, forgery “includes every act which fraudulently makes an instrument

       appear what it is not.” Id. Thus, because Garden used fraudulent means to

       convince Jones and Brooks to enter into the lease agreement, Garden’s conduct

       falls within the purview of the forgery statute. The evidence, therefore, is

       sufficient to sustain Garden’s conviction under Count Sixteen.


         C. Facts and Analysis Relating to Counts Six and Eighteen
[26]   Donald and Bertha Shackelford owned a home located at 5343 South Linwood

       Avenue in Indianapolis (the “Linwood property”). Donald retained the

       Linwood property after he and Bertha divorced. Donald subsequently filed

       bankruptcy after which he approached Garden about selling the home in the

       hopes of preventing the Linwood property from being sold at a sheriff’s sale.

       Donald specifically told Garden that he did not want the Linwood property

       rented, but rather wanted it sold.


[27]   Garden gave Donald a number of documents to sign but did not explain what

       any of the documents were. Donald ultimately signed the following documents

       at Garden’s direction: (1) a Quitclaim Deed indicating that the Linwood

       property was being sold to Garden for $1000.00 in consideration, (2) a Limited

       Power of Attorney, and (3) a Listing Contract granting Garden the exclusive

       right to sell the Finley property. Garden did not explain to Donald what either

       the Quitclaim Deed or the Limited Power of Attorney forms were. Donald was
       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 13 of 20
       told only that the Limited Power Attorney form “was just needed to help.” Tr.

       Vol. I, p. 190. Donald also understood that the Listing Contract enabled

       Garden to assist Donald in selling the Linwood property. Garden led Donald

       to believe that the forms were needed “[t]o expedite a deal with an investment

       group” and to “sell the house.” Tr. Vol. I, p. 189.


[28]   Following the execution of these documents, Donald learned that someone was

       living at the Linwood property. Donald learned that the individual was

       “buying it on contract” from Garden. Tr. Vol. I, p. 193. Donald did not know

       about this arrangement, had not given Garden permission to “put anybody in

       [his] house[,]” and had not signed any documentation relating to the alleged

       purchase agreement. Tr. Vol. I, p. 194. Donald’s attempts to communicate

       with Garden about the alleged purchase agreement were unsuccessful as

       Garden would not answer Donald’s phone calls or respond to Donald’s emails.

       Eventually, this purchase agreement fell through and the original tenants

       moved out of the Linwood property.


[29]   Some time later, after Jones and Brooks were told by law enforcement officers

       that they had to vacate the Finley property, Garden told Jones and Brooks that

       he would get them into another home. Garden showed Jones and Brooks the

       Linwood property after which the couple signed a document entitled

       “Agreement to Sell Real Estate.” State’s Ex. 8. This document was dated July

       7, 2013, and listed the seller of the property as Garden’s company, Five Star

       Homes.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 14 of 20
[30]   Garden assured Jones and Brooks that he was the owner of and had the deed to

       the Linwood property. Jones and Brooks relied on Garden’s assurances.

       However, despite living at the Linwood property for nearly a year, the purchase

       agreement fell through and Jones and Brooks were ultimately forced to move

       out of the Linwood property after learning that Garden did not own the

       property. All told, Jones and Brooks paid Garden approximately $10,000.00

       over the course of the time that they lived in the Finley and Linwood

       properties.


[31]   The State subsequently alleged that Garden “on or about October 14, 2010, did,

       with intent to defraud, make a written instrument, that is: a document entitled

       Quitclaim Deed … in such a manner that said instrument purported to have

       been made by the authority of Donald Shackelford, who did not give

       authority[.]” Appellant’s App. Vol. II, p. 106. The State also alleged that

       Garden “on or about July 7, 2013, did, with intent to defraud, utter to April

       Brooks and/or Gary Jones a written instrument, that is: a document entitled

       Agreement to Sell Real Estate with the property identified as 5343 South

       Linwood … in such a manner that said instrument purported to have been

       made by the authority of Donald Shackelford, who did not give authority[.]”

       Appellant’s App. Vol. II, p. 112. Following trial, the jury found that the

       evidence was sufficient to prove the allegations set forth above.


[32]   Review of the record reveals that Garden obtained Donald’s signature on the

       quitclaim deed through fraud. Garden obtained Donald’s signature on the deed

       under the pretense that he was going to sell the Linwood property for Donald—

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 15 of 20
       which was the only authority that Donald understood himself to be granting to

       Garden by signing the document. Donald neither understood that he was

       signing a document which would transfer his ownership of the property nor did

       he intend to do so.


[33]   By deceiving Donald in this way, Garden made the Quitclaim Deed appear to

       be something which it was not. Again, the Indiana Supreme Court has held

       that forgery “includes every act which fraudulently makes an instrument appear

       what it is not.” Jordan, 502 N.E.2d at 913. Thus, because Garden used

       fraudulent means to obtain Donald’s signature on the Quitclaim Deed,

       Garden’s conduct falls within the purview of the forgery statute. The evidence,

       therefore, is sufficient to sustain Garden’s conviction under Count Six.


[34]   Review of the record also reveals that Garden fraudulently executed a

       document entitled Agreement to Sell Real Estate for the Linwood property with

       Jones and Brooks. This document stated that Garden, through his company

       Star Homes was the seller of the Linwood property. The document further

       stated that Garden held marketable title of the Linwood property, and Garden

       assured Jones and Brooks that he was the owner of and held the deed to the

       Linwood property. Donald, the true owner of the property, was neither aware

       of nor consented to this agreement. As was the case with the Finley property,

       Jones and Brooks were forced to vacate the Linwood property after they

       learned that Donald, and not Garden, was the rightful owner of the Linwood

       property.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 16 of 20
[35]   Garden led Jones and Brooks to believe that they had a valid purchase

       agreement for the Linwood property. By deceiving Jones and Brooks in this

       way, Garden made the agreement appear to be something it was not. Again,

       forgery “includes every act which fraudulently makes an instrument appear

       what it is not.” Id. Thus, because Garden used fraudulent means to convince

       Jones and Brooks to enter into the agreement, Garden’s conduct falls within the

       purview of the forgery statute. The evidence, therefore, is sufficient to sustain

       Garden’s conviction under Count Eighteen.


             D. Facts and Analysis Relating to Count Twenty-Four
[36]   In the Spring of 2014, Garden owned a home located at 2801 Lockburn Street

       in Indianapolis (the “Lockburn property”). Amy Jones, in her role as a

       supervising attorney for the Health and Hospital Corporation of Marion

       County (“HHCMC”), filed an “Emergency Cause of Action for issues of

       habitability inside” the Lockburn property. Tr. Vol. III, p. 686. On April 10,

       2014, Garden entered into an agreed entry with HHCMC in which the parties

       agreed that the Lockburn property would “be vacant and remain vacant until

       such a time as all utilities are restored by approved means and verified by [an

       Environmental Health Specialist].” State’s Ex. 91. Pursuant to the agreed

       entry, the Lockburn property was to remain vacant at least until a hearing on

       May 15, 2014.


[37]   Also in the spring of 2014, Dustin Barnes and his girlfriend, Star McKinney,

       were looking for a residence to rent in Indianapolis. Barnes and McKinney

       came into contact with Garden after seeing “an ad in the newspaper he had for
       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 17 of 20
       a house for rent.” Tr. Vol. III, p. 737. Garden offered to rent them the

       Lockburn property. Before deciding whether to rent the Lockburn property

       from Garden, Barnes went to look at the Lockburn property. When Barnes

       went to look at the Lockburn property, he observed persons living in the house.

       Barnes had been told that if he encountered anyone at the Lockburn property,

       he should say that he “was a maintenance guy and … was coming in to look at

       the house for maintenance.” Tr. Vol. III, p. 726. The Lockburn property had

       several maintenance issues that needed to be addressed, but Barnes felt he was

       capable of making the necessary improvements given his background in

       construction.


[38]   Two weeks later, Barnes and McKinney entered into a lease agreement for the

       Lockburn property. Barnes and McKinney paid Garden a $800.00 down

       payment. Garden, however, did not inform Barnes and McKinney of the

       agreed entry with HHCMC.


[39]   When Barnes and McKinney went to look at the Lockburn property prior to

       moving in, they observed that numerous items were missing from the house.

       They also observed toilets, tubs, sinks, and buckets, all full of feces. Given the

       state of the Lockburn property, Barnes and McKinney ultimately decided not to

       move in to the home because it was not suitable for their asthmatic children to

       live in. Barnes requested that Garden return his $800.00 deposit, but Garden

       refused. Garden threatened to called the police on Barnes and “tried to order

       [Barnes] to move into the house.” Tr. Vol. III, p. 732.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 18 of 20
[40]   The State subsequently alleged that Garden “on or about April 27, 2014, did,

       with intent to defraud, utter to Star McKinney and/or Dustin Barnes a written

       instrument, that is: a document entitled Residential Lease Agreement … in

       such a manner that said instrument purported to have been made by the

       authority of the City of Indianapolis, Health and Hospital Division and/or the

       Marion Superior Court, Room 12, who did not give authority[.]” Appellant’s

       App. Vol. II, p. 114. Following trial, the jury found that the evidence was

       sufficient to prove the allegations set forth above.


[41]   Review of the record reveals that Garden acted with an intent to deceive Barnes

       and McKinney when he fraudulently entered into a lease agreement for the

       Lockburn property. Garden knew that the Lockburn property was

       uninhabitable when he entered into the lease agreement as is evidenced by the

       fact that he had entered into an agreed entry with HHCMC which stated that

       the Lockburn property was uninhabitable and was to remain vacant at least

       until a hearing on May 15, 2014.


[42]   By deceiving Barnes and McKinney in this way, Garden made the agreement

       appear to be something it was not. As has been stated a number of times above,

       the Indiana Supreme Court has held that forgery “includes every act which

       fraudulently makes an instrument appear what it is not.” Jordan, 502 N.E.2d at

       913. Thus, because Garden used fraudulent means to convince Barnes and

       McKinney to enter into the agreement, Garden’s conduct falls within the

       purview of the forgery statute. The evidence, therefore, is sufficient to sustain

       Garden’s conviction under Count Twenty-four.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 19 of 20
                                               Conclusion
[43]   In sum, we conclude that the evidence is sufficient to sustain the challenged

       convictions. As such, we affirm the judgment of the trial court.


[44]   The judgment of the trial court is affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1337 | April 19, 2017   Page 20 of 20
