Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                         Feb 17 2014, 7:09 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

JAMES A. SHOAF                                      GREGORY F. ZOELLER
Columbus, Indiana                                   Attorney General of Indiana

                                                    JAMES B. MARTIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JAMES CHRISTIAN WARNER,                             )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 03A01-1305-CR-212
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                 APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
                       The Honorable Stephen R. Heimann, Judge
                           Cause No. 03C01-1210-FC-5410



                                        February 17, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       James Christian Warner (“Warner”) appeals from his conviction after a jury trial of

attempted inmate fraud1 as a Class C felony, contending that there is insufficient evidence

to support his conviction.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       Warner wrote a letter to Ruby Dilk (“Ruby”) and a letter to Priscilla Young

(“Priscilla”) from the Bartholomew County Jail where Warner was an inmate. Warner

addressed the letters to the Asbury United Methodist Church, of which both women were

members, and where the services for their recently deceased husbands were being prepared.

       In Warner’s letter to Ruby, postmarked September 14, 2012, he acknowledged the

death of her husband, Raymond, and claimed that Raymond owed Warner $200.00 for

work that he had performed for Raymond. Warner asked Ruby to send a money order to

him in jail for that amount. Raymond had not known Warner, had never seen him before,

nor had Warner ever done work for Raymond. Raymond, who was eighty-nine years old

and legally blind prior to his death on September 11, 2012, had not worked for five years.

All of the work that was completed at Raymond and Ruby’s house was done by one

particular handyman, who was not Warner. Raymond’s obituary, which appeared in The

Republic newspaper on September 13, 2012, gave the name and address of both Ruby and

the Asbury United Methodist Church.




       1
           See Ind. Code § 35-43-5-20 (inmate fraud); Ind. Code § 35-41-5-1 (attempt).

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       Three days later, in a letter to Priscilla, postmarked September 17, 2012, Warner

acknowledged the death of Priscilla’s husband, Jack, who had passed away on September

15, 2012. Warner represented in the letter that Jack had been his chemistry teacher.

Warner further described Jack as a good friend who had never let Warner down. Warner

told Priscilla that his girlfriend was upset because she could not afford to send him a money

order to buy long underwear to fend off the cold. Warner claimed not to have enough

money to write a letter to his girlfriend, but explained that a roommate had given him a

stamp to write to Priscilla.

       Warner had not been one of Jack’s chemistry students, had attended a different high

school, and had never taken chemistry classes from Jack. Priscilla did not know Warner,

and to her knowledge, since Priscilla knew all of Jack’s friends, Jack did not know Warner.

After Priscilla read the letter, she felt as if Warner wanted her to send him money in jail

because of his reference to a money order. Jack’s obituary appeared in The Republic on

September 16, 2012, and specifically stated that Jack had been a chemistry teacher at

Columbus East High School, gave Priscilla’s name, and the name of Asbury United

Methodist Church.

       Once the letters were received at Asbury United Methodist Church, they were

opened by Paul Johnson (“Johnson”), who was employed in administration at the church.

Johnson, who was in the process of planning the services of the two men, opened the letters

because he did not want to concern or trouble the widows of the two men. Johnson thought

that it was unusual that the letters to the two women were from the same inmate, that

Ruby’s requested money outright, and that Priscilla’s indirectly requested that support be

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provided to him by her. The timing of the receipt of the letters also concerned Johnson

since they were received within four days of each other, and within a day after the

appearance of the obituary in the newspaper. Johnson contacted Detective Tom Foust

(“Detective Foust”), with the Columbus Police Department.

       Detective Foust gave the letters to Detective Kevin Abner (“Detective Abner”), who

was employed with the Bartholomew County Sheriff’s Office. After reading the letters

from Warner, Detective Abner believed that Warner was seeking money from the women.

In the course of his investigation, Detective Abner obtained Warner’s school and college

records, confirming that Warner was never a student of Jack’s. Detective Abner went to

the Bartholomew County Jail to interview Warner about the letters. Warner admitted to

Detective Abner that he had written the letters, but refused to explain his claimed

connection to Raymond and Jack. Detective Abner confirmed with Warner, and Warner

admitted, that inmates at the jail received The Republic newspaper and that Warner read

the obituaries in particular.

       The State charged Warner with two counts of inmate fraud. The jury found Warner

guilty of committing inmate fraud as to Ruby and attempted inmate fraud as to Priscilla.

The trial court sentenced Warner to two eight-year executed sentences to be served

concurrently. Warner now appeals his conviction for attempted inmate fraud.

                                DISCUSSION AND DECISION

       Warner appeals challenging the sufficiency of the evidence supporting his

conviction. Our standard of review for sufficiency claims is well settled. When we review

a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the

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credibility of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct. App. 2009)

(citing Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003)). We look only to the probative

evidence supporting the judgment and the reasonable inferences therein to determine

whether a reasonable trier of fact could conclude the defendant was guilty beyond a

reasonable doubt. Id. If there is substantial evidence of probative value to support the

conviction, it will not be set aside. Id. It is the function of the trier of fact to resolve

conflicts of testimony and to determine the weight of the evidence and the credibility of

the witnesses. Yowler v. State, 894 N.E.2d 1000, 1002 (Ind. Ct. App. 2008).

       In order to establish that Warner committed the crime of attempted inmate fraud of

Priscilla, the State was required to prove beyond a reasonable doubt that Warner, who was

confined in a county jail, and with the intent to obtain money or other property from a

person who is not an inmate, knowingly or intentionally makes a misrepresentation to one

who is not an inmate and obtains or attempts to obtain money or other property from the

person who is not an inmate. Ind. Code § 35-43-5-20. Warner contends that because he

did not make a direct request for money, there was reasonable doubt that he knowingly or

intentionally committed the offense against Priscilla.

       Although Warner did not make a direct solicitation of money from Priscilla, the

content of the letter was such that a jury could infer that Warner intended to solicit money

from her. Warner lied to Priscilla, who was recently widowed, about being a student of

Jack’s and a “true friend” of his. Appellant’s App. at 42. Warner had not known Jack and

had not been his student. Warner wrote about how upset his girlfriend was that she did not

have the means to send a money order to Warner so that he could buy long underwear. In

                                             5
that seven-sentence letter, Warner also stated that he could not afford to write to his

girlfriend, but wrote to Priscilla with the help of a fellow inmate who had supplied him

with the necessary postage. Priscilla testified that, after reading the letter, she felt like

Warner wanted her to send him money in jail. Johnson and Detective Faust testified that

they believed Warner sought money from both women. Additionally, when Detective

Faust questioned Warner in jail, Warner refused to explain how he knew Raymond or Jack.

The jury was entitled to discount Warner’s testimony at trial in which he attempted to

explain his intent and describe how he knew the two men. “We are also mindful that the

jury is the trier of fact and is entitled to determine which version of the incident to credit.”

Duren v. State, 720 N.E.2d 1198, 1201 (Ind. Ct. App. 1999) (citing Barton v. State, 490

N.E.2d 317, 318 (Ind. 1986)).

         “We will affirm if there is probative evidence from which a reasonable jury could

have found the defendant guilty beyond a reasonable doubt.” Gonzalez v. State, 908 N.E.2d

338, 340 (Ind. Ct. App. 2009) (citing Pelley v. State, 901 N.E.2d 494, 500 (Ind. 2009)).

“Circumstantial evidence alone may support a conviction if inferences may reasonably be

drawn that allowed the factfinder to find the defendant guilty beyond a reasonable doubt.”

Id. The inferences here are sufficient to support Warner’s conviction for attempted inmate

fraud.

         We likewise reject Warner’s claim that the jury verdicts in this case are inconsistent

or that an inconsistent-verdict argument can be used to support his claim of insufficient

evidence. “The evaluation of whether a conviction is supported by sufficient evidence is

independent from and irrelevant to the assessment of whether two verdicts are

                                               6
contradictory and irreconcilable.” Beattie v. State, 924 N.E.2d 643, 648 (Ind. 2010). Not

only is Beattie inapplicable to Warner’s claim, even if it were, the jury’s verdicts were not

inconsistent or irreconcilable. Warner was charged with two separate offenses against two

different women and was found guilty of both offenses. There is nothing inconsistent in

the jury’s decision to find Warner guilty of attempting the commission of the offense

against one victim, and guilty of the actual offense against the other.

       Warner suggests that the trial court committed an instructional error in the

instructions given to the jury regarding attempted inmate fraud. This issue has been waived

because Warner failed to preserve the issue for review at trial and has failed to present

cogent argument on appeal. Nonetheless, we find no error here. The State correctly

observes that the statute defining the offense of inmate fraud does not require that a direct

solicitation of money be made in order to have committed the offense. Rather, there must

be knowing or intentional misrepresentations made in order to obtain or attempt to obtain

money or other property. The jurors used the evidence of Warner’s direct solicitation of

money from Ruby and the inference that Warner was seeking money from Priscilla to

arrive at the two different guilty verdicts. The jury could have found Warner guilty of two

counts of actual inmate fraud. Warner has failed to establish reversible error on the basis

of insufficient evidence.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




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