MEMORANDUM DECISION
                                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                                 Apr 21 2016, 7:42 am

this Memorandum Decision shall not be                                                      CLERK
                                                                                       Indiana Supreme Court
regarded as precedent or cited before any                                                 Court of Appeals
                                                                                            and Tax Court
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
T. Andrew Perkins                                        Gregory F. Zoeller
Peterson Waggoner & Perkins, LLP                         Attorney General of Indiana
Rochester, Indiana                                       Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Max Nicholson,                                           April 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         25A03-1506-CR-764
        v.                                               Appeal from the
                                                         Fulton Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Wayne E. Steele, Judge
                                                         Trial Court Cause No.
                                                         25D01-0912-FC-535



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016              Page 1 of 25
[1]   Following a jury trial, Max Nicholson (“Nicholson”) was convicted of one

      count of Class C felony theft,1 and six counts of Class D felony fraud.2

      Nicholson now appeals and raises the following two restated issues:


                 I. Whether the trial court abused its discretion when it admitted
                 into evidence credit card statements issued in the name of one of
                 the victims, Robert Ragan (“Ragan”); and

                 II. Whether the trial court abused its discretion when it admitted
                 into evidence a copy of the front of a cashier’s check issued from
                 the bank account of another victim, Patricia Eber (“Eber”).


[2]   We affirm.


                                      Facts and Procedural History
[3]   In the summer of 2002, Nicholson met Eber while attending a real estate

      conference in Florida. Eber lived in Rochester, Indiana, and at that time

      Nicholson was living in West Virginia.3 A couple of months prior to their

      meeting, Eber had inherited a parcel of real estate in Indiana and another in

      Mississippi; each included a residence on the real property. She also inherited

      real estate in Tennessee, which was subdivided into lots but not yet developed.

      In addition, Eber was the beneficiary of $250,000.00 in life insurance proceeds.




      1
        See Ind. Code § 35-43-4-2(a). We note that the statutes under which Nicholson was charged were amended
      effective July 1, 2014; however, we will apply the statutes in effect at the time that Nicholson committed his
      offenses.
      2
          See Ind. Code § 35-43-5-4(1).
      3
          Sometime in 2003, Nicholson moved to Rochester, Indiana. Tr. at 280.


      Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016              Page 2 of 25
      Eber sold the two houses, and she deposited the proceeds along with the life

      insurance money into an account at Teachers Credit Union (“TCU”). Eber

      retained the Tennessee subdivision, which included an unfinished spec home

      upon which a contractor had placed a $35,000.00 mechanic’s lien, which

      prevented Eber from selling the home. Eber attended the Florida real estate

      conference to acquire knowledge about real estate, since she now owned the

      Tennessee subdivided property. At the real estate conference, Eber talked with

      Nicholson, who was seated behind her, and Nicholson told Eber that he was

      experienced in real estate and development projects.


[4]   Some weeks after the real estate conference, in August or September 2002, Eber

      contacted Nicholson to seek his advice about the mechanic’s lien that remained

      on the spec home, as Eber wanted to sell it. Nicholson suggested a solution

      that involved issuing a bond on the property, which would allow her to sell it.

      Eber accepted his offer to assist her with accomplishing that task. To complete

      the sale of the spec home, Nicholson had Eber execute, in September 2002, a

      general power of attorney, naming him as her attorney-in-fact and giving him

      power over, among other things, real estate transactions, banking transactions,

      business operating transactions, access to checking and savings bank accounts,

      and “all other matters.” Tr. at 259-61; State’s Ex. 1. The spec home property

      eventually was sold. As for the rest of the Tennessee real estate, Nicholson

      directed Eber to place the land in a trust, with him as the trustee, and Eber did

      so.




      Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 3 of 25
[5]   In 2003, Nicholson approached Eber with the idea of investing in land

      development. Eber was interested and ultimately agreed with Nicholson’s

      proposal, and they formed a company called The Group Incorporated (“The

      Group”). Nicholson was The Group’s president and trustee, and Eber was the

      vice president. For purposes of funding The Group, Eber directed TCU to issue

      a cashier’s check from her account in the amount of $323,726.47 payable to The

      Group. Eber personally handed the check to Nicholson. Eber also cashed out

      a Fidelity annuity, valued at approximately $100,000.00, and gave it to

      Nicholson to place in The Group for investment. Eber understood that these

      funds were to be used to buy property, develop it, and sell it. To Eber’s

      knowledge, Nicholson never invested his own money in The Group.

      Nicholson told Eber to expect a ten percent return on her investment. At some

      point, Nicholson also advised Eber to transfer ownership of her Rochester

      residence into a trust, of which he was trustee, and Eber did so. Tr. at 272. He

      told her the purpose was to “protect the property.” Id.


[6]   Eber, in addition to her own money and property, also invested $100,000.00 on

      behalf of her mother into The Group. Eber was power of attorney for her

      mother, and in that capacity, Eber executed a general power of attorney in

      September 2003 that gave Nicholson authority over Eber’s mother’s affairs.

      Eber’s mother owned real estate, which was placed in a trust of which

      Nicholson was trustee. State’s Ex. 6. Nicholson agreed to disburse income

      from The Group to cover the mother’s living expenses, and he stated he would




      Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 4 of 25
      issue a check to Eber every month for her use in paying her mother’s expenses.

      This occurred for about three months and then stopped.


[7]   In 2004, Nicholson “changed gears” away from developing real estate, as Eber

      had agreed to do, and Nicholson told Eber that he used money from The Group

      to purchase an Oregon-based golf equipment company called Harris

      International (“Harris”). Tr. at 262, 265. Nicholson did not consult with Eber

      before purchasing Harris. Following the purchase of Harris, Eber’s relationship

      with Nicholson declined. Eber made attempts to reach Nicholson after her

      mother died in 2005, because Eber wanted to sell her mother’s property that

      was in trust, but he avoided communicating with her.


[8]   When Eber eventually confronted Nicholson about the financial arrangements

      and her ownership of Harris, Nicholson told Eber that her money was “gone.”

      Tr. at 296. Eber also discovered that her Home Depot credit card had

      $11,205.34 in unauthorized charges on it. State’s Ex. 5. Nicholson had changed

      the billing address on her Home Depot card, so that monthly statements were

      mailed to The Group, and Eber did not receive or see the statements. Eber

      checked on the Tennessee subdivision and found that many lots had been sold,

      but she had never seen any of the money.


[9]   By January 2006, Eber wanted to end the business relationship with Nicholson.

      She hired a lawyer, and in February 2006, she executed a revocation of her

      power of attorney that had been executed in favor of Nicholson. State’s Ex. 4.




      Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 5 of 25
       Eber filed a civil suit against Nicholson, and she obtained a judgment against

       him. At some point in 2008, the matter was also referred to law enforcement.


[10]   Meanwhile, in 2003, Nicholson responded to an online advertisement placed by

       Ragan, who had recently moved from New York to the Mishawaka/South

       Bend area. Tr. at 333-35. Ragan placed the ad looking for friends, as he was

       new to the area. The two met, and Nicholson told Ragan he was a financial

       advisor, had experience flipping properties, and could help Ragan with real

       estate investing. In December 2003, after the two had been friends for some

       months, and Nicholson had observed that Ragan struggled with the

       organization of his personal finances and payment of bills, Nicholson offered to

       assist Ragan with managing his financial affairs. Ragan agreed, and Nicholson

       began paying Ragan’s bills for him, by making payment from Ragan’s checking

       account. Nicholson had previously told Ragan that The Group was a company

       he utilized to buy and sell homes, and at some point, Nicholson suggested that

       Ragan change his billing address for his bills to The Group’s address, to make it

       more convenient for bill payment, and Ragan agreed. Eventually, all of

       Ragan’s bills and credit card statements were sent to The Group.


[11]   In May 2004, Ragan executed a power of attorney, naming Nicholson as

       attorney-in-fact and trustee. State’s Ex. 7. Thereafter, in the spring of 2004,

       Nicholson assisted Ragan with looking for a home to purchase in South Bend.

       Ragan borrowed $10,000.00 from his mother for a down payment, and Ragan

       wrote a check from his checking account to The Group. Ragan did not end up

       moving into a home in South Bend, and due to work changes, in 2005 Ragan

       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 6 of 25
       began investigating a move to Chicago. Ragan allowed Nicholson to keep the

       $10,000.00 because Nicholson told him that the money was invested and would

       have increased in value when he needed it to buy a home in Chicago. Ragan

       borrowed more money from his father to purchase a condominium in Chicago.

       Nicholson handled the paperwork and, shortly after the purchase, Nicholson

       directed Ragan to transfer ownership of the property into a trust with Nicholson

       as trustee, in order to “protect the property.” Tr. at 342, 353. Nicholson also

       assisted in the paperwork when Ragan purchased a Nissan pickup truck.

       Originally the vehicle was titled in Ragan’s name, but “almost immediately” it

       was transferred into a trust, of which Nicholson was trustee. Id. at 351.


[12]   In April 2007, Ragan attempted to make an online purchase with his American

       Express Personal Gold card. The card was rejected, and when Ragan called

       American Express, he discovered that his account was frozen due to an

       outstanding balance of over $10,000.00. Thereafter, Ragan obtained a credit

       report and discovered outstanding balances on other credit cards, as well. He

       learned that four other credit cards had been issued in his name, although he

       did not apply for them: Bank of America, American Express Business Gold,

       Chase Bank, and USAA Savings Bank. Tr. at 358-84; State’s Exs. 9-13. The

       outstanding balances totaled more than $115,000.00. Ragan learned that the

       monthly statements on the cards had been mailed to The Group. Ragan hired

       an attorney and, with the attorney’s assistance, revoked the power of attorney

       that Ragan had executed in favor of Nicholson. In April 2007, Ragan made a

       police report about the credit card fraud. In November 2007, Ragan relocated


       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 7 of 25
       from Chicago to Indianapolis, and in June 2008, Eber made contact with

       Ragan to share her experiences with Nicholson and discuss being a victim of

       fraud.


[13]   In December 2009, the State charged Nicholson with: Count I, Class C felony

       theft, alleging that he knowingly exerted unauthorized control over Eber’s

       property, namely cash in excess of $100,000.00, with the intent to deprive her of

       its value or use; Count II, Class D felony fraud, alleging that Nicholson, with

       intent to defraud, obtained property by using Eber’s Home Depot credit card

       without Eber’s consent; and Counts III-VII, five counts of Class D felony fraud,

       alleging that Nicholson, with intent to defraud, obtained property by using five

       different credit cards belonging to Ragan without his consent, specifically:

       Bank of America, American Express Personal Gold Card, American Express

       Business Gold Card, Chase Bank, and USAA Savings Bank credit cards.4

       Nicholson fled Indiana, and a warrant was issued for his arrest. The State

       enlisted the assistance of, among others, the Federal Bureau of Investigation

       and the Indiana State Police Intelligence Division in locating Nicholson; Eber

       hired at least one private investigator. Nicholson was eventually located and

       apprehended in the state of Washington in February 2013.


[14]   At trial, Eber testified that during the course of their business relationship,

       Nicholson had informed her that she owned 500 shares of Harris, but she never




       4
           We note that the State initially filed Count VIII, another count of fraud, but later dismissed it.


       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016                     Page 8 of 25
       received proof of ownership of either Harris or The Group. Eber testified that

       in 2005, their relationship starting “going downhill.” Tr. at 288. She would try

       to reach him and ask for documentation, but he was not available and would

       not return her attempts to reach him. Although Nicholson told her that she was

       vice president of The Group, she did not engage in any transactions for the

       company; she did not write checks, or prepare documents, or have any direct

       involvement with it. She never received a receipt or some form of formal

       acknowledgement of the monies that she and her mother contributed to The

       Group. Although the Tennessee spec home sold, she never saw any of the

       proceeds. Eber testified that, for approximately a year and a half, she drove a

       Saturn Vue vehicle that was purchased by The Group in 2003; the Vue was one

       of three vehicles purchased by The Group, with the other two having been

       purchased in late 2002. Eber later learned that the two other vehicles were

       financed under her name using her credit.


[15]   The State introduced Exhibit 3, which was the TCU cashier’s check that Eber

       directed TCU to issue from her account in the amount of $323,726.43. It was

       payable to The Group. Nicholson objected on the grounds that the check was a

       duplicate and that there was no copy of the back of the check, which would

       have reflected who endorsed it. Nicholson argued the back of the check was

       necessary to see whether Nicholson or someone else had endorsed it, and thus

       had exerted control over the money. The trial court overruled Nicholson’s

       objections, and it admitted the check into evidence.




       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 9 of 25
[16]   Eber testified that she personally gave the check to Nicholson. The check was

       payable to The Group, but Eber testified that Nicholson was the president and

       sole trustee of The Group. Eber testified that the money was withdrawn from

       her TCU account. Later, when Eber confronted Nicholson about all the money

       she had invested in the Group, he told her that the money was “gone,” and

       there was nothing left. Tr. at 296. Eber never saw any of the trust documents

       that held her properties.


[17]   Eber testified that, during her relationship with Nicholson, she did not know

       anyone named Robert Ragan; however, during the time that she began to

       pursue legal action against Nicholson, and she was at the courthouse doing

       research on Nicholson, she discovered a general power of attorney in which

       Ragan gave Nicholson power over his affairs. Eber’s name appeared as a

       notary on the document, although she never had seen it before and did not

       notarize it. Tr. at 293; State’s Ex. 7. Eber testified that she made contact with

       Ragan in June 2008.


[18]   Ragan also testified. He explained that, after Nicholson noticed that Ragan

       was not too organized with his personal finances and payment of bills,

       Nicholson offered to assist with that task, but would not accept payment,

       stating he was doing it as a friend. At first, Nicholson picked up the bills from

       Ragan, and later, Ragan agreed to send the bills directly to Nicholson’s business

       address at The Group. In May 2004, Ragan executed the general power of

       attorney naming Nicholson as his attorney-in-fact. Initially, Ragan’s

       understanding of the reason for the power of attorney would be to assist with

       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 10 of 25
       the payment of Ragan’s bills, and later he believed the power of attorney would

       be useful while Nicholson was helping Ragan purchase a residence in Chicago.

       During 2006 and 2007, after living in Chicago for a period of time, Ragan

       desired to take back control of his personal finances and affairs, as he was

       seeing and communicating less with Nicholson, who still lived in Indiana.

       Ragan asked Nicholson repeatedly to send him his bills and statements so that

       Ragan could pay them himself. Nicholson sporadically sent Ragan various

       bills, mostly utilities, but never sent him credit card statements.


[19]   With regard to the American Express Personal Gold Card, Ragan explained

       that he had had that account since at least the late 1980s. He attempted to use

       it sometime in 2005, but it was denied, and when he called American Express,

       he was told of the balance and that the account was frozen due to nonpayment.

       Ragan believed that the charges were likely moving expenses that he incurred

       when moving to Chicago, so Ragan paid the balance in full, which was in

       excess of $13,000.00. Later in April 2007, he again was not able to make a

       purchase on the card, and when he inquired, he learned of a balance in excess

       of $10,000.00. Although Ragan had made some purchases, he knew that it

       would not have totaled that amount, so he began investigating and obtained a

       credit report, at which time he learned of at least four other credit cards in his

       name that he did not apply for or know existed: Bank of America, Chase,

       American Express Business Gold Card, and USAA Savings Bank. Ragan

       testified that Nicholson was the only individual who possessed a power of

       attorney for him and who could have had the power to open and change the


       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 11 of 25
       credit accounts. Tr. at 396, 410. After learning from the credit report of the

       unauthorized cards, Ragan contacted the various credit card companies and

       entered into payment agreements for the outstanding balances.


[20]   The State introduced Exhibits 9 through 13, the five credit card statements in

       Ragan’s name, which he did not apply for or open and which had charges on

       them totaling over $115,000.00. Nicholson objected to the admission of each of

       the exhibits, arguing that they were not properly authenticated. Tr. at 358-70.

       Nicholson also objected on the basis that the statements contained hearsay and

       that the State did not present the necessary evidence to have them admitted

       under the business records exception to the hearsay rule. The trial court

       admitted the five credit card statements over Nicholson’s objections.


[21]   Ragan testified that he never saw copies of the trust documents into which he

       had placed personal and real property. There came a point in time when Ragan

       wanted the pickup truck and his Chicago condominium out of the trust, but

       Nicholson had “disappeared,” and Ragan could not reach him. Id. at 352.


[22]   The jury found Nicholson guilty as charged. At the sentencing hearing,

       Nicholson testified, and he also made a statement to the trial court, which,

       along with asking for forgiveness, purported to “forgive the victims.” Id. at 531.

       The trial court viewed Nicholson’s statement as “narcissistic” and “rambling.”

       Id. at 559. The trial court reviewed Nicholson’s extensive lists of employers and

       charitable work, noting “[T]he Court’s not buying it.” Id. at 558. The trial

       court remarked, “You’re trying to make this Court and this system your next


       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 12 of 25
       victim. And it’s not going to happen.” Id. at 557. The trial court found that

       “the anguish and the harm” to the victims was “immeasurable[,]” and it

       characterized Nicholson as “a predator.” Id. at 560. The trial court thereafter

       sentenced Nicholson to eight years on the Class C felony theft conviction and

       three years each on the six Class D felony fraud convictions. The trial court

       ordered the sentences to run consecutively, for a total executed sentence of

       twenty-six years. Nicholson now appeals.


                                      Discussion and Decision
[23]   Nicholson claims that the trial court abused its discretion when it admitted into

       evidence “documents purporting to be credit card statements from various

       financial institutions” and a copy of Eber’s check in the amount of $323,726.43

       from TCU payable to The Group. Appellant’s Br. at 6. A 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. Wise v. State, 26

       N.E.3d 137, 143 (Ind. Ct. App. 2014), trans. denied; Sandleben v. State, 22 N.E.3d

       782, 795 (Ind. Ct. App. 2014), trans. denied. An abuse of discretion occurs when

       the trial court’s decision is clearly against the logic and effect of the facts and

       circumstances before it. Wise, 26 N.E.2d at 143. When reviewing a decision

       under an abuse of discretion standard, we will affirm if there is any evidence

       supporting the decision. Sandleben, 22 N.E.2d at 795. A claim of error in the

       admission or exclusion of evidence will not prevail on appeal unless a

       substantial right of the party is affected. Ind. Evid. Rule 103(a); Guiterrez v.

       State, 961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012). “In other words, even if the

       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 13 of 25
       trial court erred in admitting evidence, we will not reverse if that error was

       harmless.” Sandleben, 22 N.E.3d at 795 (citing Williams v. State, 714 N.E.2d

       644, 652 (Ind. 1999), cert. denied 528 U.S. 1170 (2000)).


                                 I. The Credit Card Statements
[24]   Nicholson challenges the admission into evidence of the following credit card

       statements that were issued in Ragan’s name but mailed to The Group: Exhibit

       9 (Bank of America); Exhibits 10 and 10A (American Express, Personal Gold

       Card); Exhibit 11 (American Express, Business Gold Card); Exhibit 12 (Chase

       Bank); and Exhibit 13 (USAA Savings Bank). Nicholson challenges the

       admission of the exhibits on two grounds: the State failed to properly

       authenticate the credit card statements, and it failed to satisfy the requirements

       of the business records exception to the hearsay rule.


[25]   Nicholson argues that the credit card statements were admitted into evidence

       despite “a lack of proper authentication.” Appellant’s Br. at 7. Nicholson asserts

       that under Indiana Evidence Rule 901(a), the party seeking to admit evidence

       must “produce evidence sufficient to support a finding that the item is what the

       proponent claims it is.” In this case, the State presented the credit card

       statements through Ragan’s testimony. Nicholson argues that, “[t]he only

       familiarity that Ragan had with most of the statements was that his name

       appeared on them[,]” and that Ragan’s testimony was inadequate to provide

       proper authentication of the documents. Id. at 10. We disagree with

       Nicholson.


       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 14 of 25
[26]   Ragan testified that he had possessed a personal American Express Gold Card

       for over two decades. Although the first time that the card was declined, when

       he tried to use it in 2005, he paid the outstanding balance of over $13,000.00

       because he believed it must have been his moving expenses. However, when

       the card was again declined in 2007, and the balance exceeded $10,000.00, he

       knew that he had not made that amount of charges, so he obtained the

       statement from American Express. He also obtained a credit report and

       discovered that four other credit cards had been issued in his name, without his

       knowledge or consent, each with large balances: Bank of America; Chase

       Bank, American Express Business Gold Card account; and USAA Savings

       Bank. He personally obtained statements from those companies, saw that he

       had not made any of the charges reflected and, thereafter, engaged in separate

       negotiations with each of the issuing banks.5 As Nicholson acknowledges,

       authentication can be established by direct or circumstantial evidence, and

       absolute proof of authenticity is not required; a reasonable probability that the

       document is what it purports to be is sufficient. Appellant’s Br. at 7 (citing

       Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied). We

       find that Ragan’s testimony was sufficient evidence to support a finding that the

       items were what Ragan claimed them to be, namely credit card statements for




       5
        Ragan testified that he was required to pay one or more of the balances in full, because of the existing
       power of attorney, but that other banks wrote off the debt, or reached a compromise with him for partial
       payment in satisfaction of the debt.

       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016             Page 15 of 25
       cards issued in his name, without his knowledge, the balances of which, for

       several cards, he was held financially responsible, in full or in part.


[27]   Next, Nicholson argues that the credit card statements constituted hearsay, did

       not qualify for admission under the business records exception, and should have

       been excluded from evidence. Hearsay is an out-of-court statement offered into

       evidence to prove the truth of the matter asserted. Evid. R. 801(c). Hearsay is

       inadmissible unless it falls under a recognized exception. Evid. R. 802. One

       such exception exists for records that satisfy the requirements of Evidence Rule

       803(6), which provides,

               The following are not excluded by the rule against hearsay,
               regardless of whether the declarant is available as a witness:

               ....
               (6) Records of a Regularly Conducted Activity. A record of an
               act, event, condition, opinion, or diagnosis if:

               (A) the record was made at or near the time by—or from
               information transmitted by—someone with knowledge;

               (B) the record was kept in the course of a regularly conducted
               activity of a business, organization, occupation, or calling,
               whether or not for profit;

               (C) making the record was a regular practice of that activity;

               (D) all these conditions are shown by the testimony of the
               custodian or another qualified witness, or by a certification that
               complies with Rule 902(11) or (12) or with a statute permitting
               certification; and


       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 16 of 25
               (E) neither the source of information nor the method or
               circumstances of preparation indicate a lack of trustworthiness.


[28]   “In essence, the basis for the business records exception is that reliability is

       assured because the maker of the record relies on the record in the ordinary

       course of business activities.” In re Termination of Parent-Child Relationship of

       E.T., 808 N.E.2d 639, 643 (Ind. 2004). Business records are “imbued with

       independent indicia of trustworthiness.’” Embrey v. State, 989 N.E.2d 1260,

       1264-65 (Ind. Ct. App. 2013) (quoting Williams v. Hittle, 629 N.E.2d 944, 947

       (Ind. Ct. App. 1994), trans. denied). “These indicia are that the business

       establishes a routine of record-making, that the record is made by one with a

       duty to report accurately, and that the business relies upon that record in

       carrying out its activities.” Id.


[29]   Nicholson argues that because the State did not present the testimony of a

       custodian of the records or provide a certification for the documents, it thereby

       failed to provide sufficient foundation to admit the credit card statements under

       Evidence Rule 803(6). The State responds that circumstantial evidence

       established that they were trustworthy business records and, thus, properly

       admitted. It maintains, “Ragan’s testimony was sufficient to show the records

       were regularly kept business records,” explaining that Ragan’s testimony, about

       receiving the statements and directly negotiating payment plans with the

       issuers, reflected that he relied upon the statements as accurate business records.

       Appellee’s Br. at 15. The State further argues, “Almost everyone is familiar with

       the monthly statements they receive from financial institutions, including credit

       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 17 of 25
       card issuers[,] and, thus, “[T]he nature of the records themselves” reflects “their

       reliability as regularly kept business records.” Id. at 16-17. However, the fact

       that Ragan relied on the records as being accurate or that “almost everyone”

       knows about and receives monthly credit card statements did not relieve the

       State from satisfying the requirements of Evidence Rule 803(6). Id. at 16.


[30]   Evidence Rule 803(6)(D) requires that “all the conditions” under subsection

       (A), (B), and (C) – that the record was made at or near the time by someone

       with knowledge, was kept in the course of regularly conducted activity of the

       business, and making the record was a regular practice – be shown “by the

       testimony of the custodian” or “by certification[.]” See also In re Paternity of

       H.R.M., 864 N.E.2d 442, 448 (Ind. Ct. App. 2007) (records of regularly

       conducted business activity “must be supported by testimony or an affidavit

       indicating that such records were kept in the normal course of business, and

       that it was the regular practice of the business to make such records”).

               To our knowledge, this state has not adopted the approach taken
               by the federal courts which would permit the admission of
               business records based upon circumstantial evidence derived
               from the document itself, without the testimony of the custodian
               or another qualified witness. . . . Neither are we aware of any
               catch-all exception in Indiana similar to the Federal Rules of
               Evidence, Rule 803(24) which would allow a trial judge in the
               exercise of discretion to consider the inherent trustworthiness of
               the entry and the nature of the business which produced it.


[31]   Ground v. State, 702 N.E.2d 728, 731 (Ind. Ct. App. 1998) (quoting Cardin v.

       State, 540 N.E.2d 51, 55 (Ind. Ct. App. 1989)).

       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 18 of 25
[32]   We have recognized that, as an exception to the hearsay rule, the business

       record exception must be strictly construed. Speybroeck v. State, 875 N.E.2d 813,

       819 (Ind. Ct. App. 2007). In this case, the State presented neither the testimony

       of a custodian or a written certification. Ragan’s testimony could not provide

       an adequate foundation to sponsor the credit card statements because he was

       not the custodian and did not have knowledge of the record sufficient to

       sponsor it; he did not explain how the record was created or that the company

       relied on it in the course of its business.6 Thus, the trial court abused its

       discretion when it admitted the credit card statements over Nicholson’s hearsay

       objections.7 See Sandleben, 22 N.E.3d at 796 (witness could not provide

       adequate foundation to sponsor business record that showed internet subscriber

       information where witness was not custodian and did not have knowledge of

       how record was made or who created it); Stahl v. State, 686 N.E.2d 89, 92 (Ind.

       1997) (error to admit bank’s “affidavit of forgery” document, which had been

       completed by bank customer at bank’s request to verify that defendant did not

       have authorization to use customer’s ATM card, because requirements of Rule

       803(6) were not met).




       6
         Although a sponsor “need not have personally made [the record], filed it, or have firsthand knowledge of
       the transaction represented by it,” a sponsor must still testify about how the record was made, who filed it,
       and that the person who filed it was both authorized to do so and had personal knowledge of the transaction.
       Sandleben v. State, 22 N.E.3d 782, 795 (Ind. Ct. App. 2014), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016            Page 19 of 25
[33]   However, not all trial court error is reversible. We will affirm a defendant’s

       convictions if error in admission of evidence was harmless. Speybroeck, 875

       N.E.2d at 822. A claim of error in the admission or exclusion of evidence will

       not prevail on appeal unless a substantial right of the party is affected.

       Sandleben, 22 N.E.3d at 795. 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. Corbett v. State, 764 N.E.2d 622, 628 (Ind.

       2002).


[34]   Viewing the record in this case, we conclude that any error in the admission of

       the documents does not rise to the level of reversible error. The record as a

       whole reveals that Nicholson engaged in a similar pattern of conduct with Eber

       and Ragan. He befriended each of them, assessed their needs and

       vulnerabilities, and after gaining their trust, offered his assistance. He offered

       expertise and assistance with financial matters, and to best help each of them,

       he advised that he would need a general power of attorney, which Eber and

       Ragan each executed. This gave Nicholson broad control over their financial

       affairs. He advised that, to protect their assets, it would be best to put various

       assets into a trust, of which he was trustee. Eber and Ragan believed Nicholson

       and did as he suggested. In Ragan’s case, Nicholson offered to assist Ragan

       with making payment of his monthly bills. Ragan testified that Nicholson

       recommended that, for ease, the bills be paid through his company, The Group.

       Ragan agreed to have the bills sent directly to The Group’s business address.




       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 20 of 25
[35]   Because Nicholson committed the fatal misstep of failing to make one or more

       payments on Ragan’s personal American Express Gold Card, the card was

       declined when Ragan tried to use it in 2007. This led to Ragan obtaining his

       statement from American Express, as well as a credit report, which revealed to

       Ragan that four other credit cards had been issued in his name without his

       knowledge and were being mailed to The Group. He testified that he obtained

       those credit card statements, and other than some of the charges on his personal

       American Express Gold Card bill, none of the charges on the other cards were

       attributable to him. Ragan testified that he communicated directly with those

       credit card issuers to attempt to have the balances removed, reduced, or

       otherwise arrange a payment plan. He entered into settlement agreements with

       American Express, Chase, Bank of America, and USAA Savings Bank. While

       the erroneously-admitted credit card statements illustrated specific purchases on

       specific dates on specific cards, that information was not the only evidence that

       connected Nicholson to having committed fraud by obtaining and using credit

       cards issued in Ragan’s name.


[36]   The State’s evidence as a whole was sufficient from which the trier of fact could

       reasonably infer that Nicholson – who at the relevant time was the only person

       who possessed a power of attorney over Ragan’s affairs and who was already

       paying Ragan’s bills – obtained credit cards in Ragan’s name, made

       unauthorized charges on the cards, and had the statements mailed directly to

       The Group. Thus, while the trial court erred in admitting the records over

       objection, the other properly admitted trial evidence supports Nicholson’s


       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 21 of 25
       convictions beyond a reasonable doubt, and any error did not affect

       Nicholson’s substantial rights. Accordingly, we hold that any error in the

       admission of the credit card statements, Exhibits 9-13, was harmless error. See

       Sandleben, 22 N.E.3d at 796 (although business record listing subscriber

       information was improperly admitted, it was harmless because other evidence

       supported convictions beyond reasonable doubt).


                                             B. Eber’s Check
[37]   Nicholson next argues that the trial court erred when it admitted Exhibit 3, a

       copy of Eber’s check in the amount of $323,726.43 from TCU payable to The

       Group. Here, Eber identified the copy of the TCU cashier’s check and

       explained that she directed the bank to issue the check, payable to The Group.

       She testified that the amount reflected her entire account balance, “down to the

       penny.” Tr. at 263. Nicholson objected to the check, asserting that it was a

       copy and that “Evidence Rule 1002 requires the original,” and he further

       argued that Exhibit 3 was not a complete document because it did not include a

       copy of the back of the check, which would show whether Nicholson, or

       someone else, endorsed it. Id. Eber testified that Exhibit 3 was the only

       evidence of the check that she was able to obtain from TCU. The trial court

       overruled Nicholson’s objection, and with regard to the fact that the back of the

       check was not included, the trial court stated, “That may very well go to the

       weight, but the Court will overrule the objection[.]” Id. at 265.




       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 22 of 25
[38]   Our Rules of Evidence set forth rules concerning the admissibility of original

       and copies of various documentary and recorded forms of evidence. Generally,

       to prove the content of a writing, “the original writing, recording, or

       photograph is required” unless the Rules of Evidence or a statute provide

       otherwise. Evid. R. 1002. However, “[a] duplicate is admissible to the same

       extent as an original unless a genuine question is raised about the original’s

       authenticity or the circumstances make it unfair to admit the duplicate.” Evid.

       R. 1003; Wise, 26 N.E.3d at 143. Here, Nicholson objected and argued that it

       was unfair to admit the duplicate because the back of the check was not

       included, thus “we’re not able to see who endorsed the check,” which is

       relevant to the case because “the entire crux” of the State’s charges was that

       Nicholson “had some kind of control over the money.” Tr. at 265.


[39]   Upon review of the record before us, we find that the check was properly

       admitted. Eber identified the TCU check, when it was issued, to whom, in

       what amount, from what account, and at her direction. She testified that the

       funds were withdrawn from her account. Thus, we find that her testimony

       properly authenticated the check. We likewise reject Nicholson’s argument that

       it was an abuse of discretion to admit the one-sided check because the reverse

       side of it was necessary to establish whether he did or did not exert control over

       the money, as was necessary to convict him of Class C felony theft, as charged.

       We disagree and find that other, circumstantial evidence was presented to the

       jury from which it could have inferred that Nicholson exerted unauthorized




       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 23 of 25
       control over Eber’s property, “namely cash in excess of $100,000.” Appellant’s

       App. at 13.


[40]   Nicholson presented himself to Eber as an experienced real estate investor. He

       was able to resolve the issue of the lien on the Tennessee spec home so that

       Eber could sell the property. Eventually, he proposed to Eber that he could

       assist her with real estate investing and that she could make ten percent on her

       investment. To this end, she withdrew her funds from TCU, ordering TCU to

       prepare the check for $323,726.43 payable to The Group. She handed the

       check to Nicholson, the president and trustee of The Group. Thereafter, the

       funds were removed from her TCU account. Eber also cashed out a Fidelity

       annuity, valued at approximately $100,000, and placed that into The Group.

       Eber also invested $100,000.00 of her mother’s money into The Group. To

       Eber’s knowledge, Nicholson never contributed any of his own money to The

       Group. Without her consent, Nicholson purchased Harris, a golf equipment

       company, even though he had told her that the money would be invested in real

       estate. She never received any income from the claimed investment. Nor did

       she receive any money from the Tennessee lots that she discovered had been

       sold. Later, when she asked Nicholson about her money that had been given to

       The Group for investment, Nicholson told her that the money was “gone.” Tr.

       at 296, 300. Even without the endorsement on the back of the TCU check, we

       find that there was evidence from which a fact-finder could infer that Nicholson

       exerted control over Eber’s property with the intent to deprive her of its use or

       value.


       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 24 of 25
[41]   Nicholson contends that he was deprived of “the opportunity to explore issues

       surrounding [the check’s] endorsement.” Appellant’s Br. at 18. However, the

       record indicates that he did cross-examine Eber on the issue, asking “You don’t

       actually know who cashed that check do you?” Tr. at 313. Eber conceded that,

       because she was not able to obtain a copy of the check that included the back

       side of it, she did not “know” who cashed the check. Id. Thus, Nicholson

       explored the issue with Eber, and the jury heard Eber’s response. Nicholson

       has not shown that his substantial rights were affected by the admission of the

       check, and we find no abuse of trial court discretion.


[42]   Affirmed.


[43]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 25A03-1506-CR-764 | April 21, 2016   Page 25 of 25
