MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                              Aug 21 2015, 8:42 am
this Memorandum Decision shall not be
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
Mark A. Bates                                            Gregory F. Zoeller
Office of the Lake County Public                         Attorney General of Indiana
Defender
                                                         Karl M. Scharnberg
Crown Point, Indiana                                     Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Percy Lee Blake,                                         August 21, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A05-1412-CR-563
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Plaintiff                                       Boswell, Judge
                                                         Trial Court Cause No.
                                                         45G03-1112-FC-154



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-563 | August 21, 2015   Page 1 of 4
[1]   Percy Blake pleaded guilty to theft after making purchases with Citibank credit

      cards that he obtained fraudulently. The trial court ordered him to pay

      restitution to Citibank in the amount of $8,715.87. Blake appeals, arguing that

      this amount is too high. Finding sufficient evidence to support this amount, we

      affirm.


                                                     Facts
[2]   On December 22, 2011, the State charged Blake with fraud on a financial

      institution, a class C felony, and synthetic identity deception, a class D felony.

      On July 18, 2014, the State amended the charge, adding one count of theft, a

      class D felony. That same day, Blake entered into a plea agreement, in which

      he agreed to plead guilty to theft in exchange for dismissal of the two original

      counts. The agreement left sentencing open, allowing both parties to argue

      their positions at a later hearing.


[3]   On October 30, 2014, the trial court held this hearing. After accepting Blake’s

      guilty plea, the trial court sentenced him to three years in the Department of

      Correction, to be served in the Lake County Community Corrections

      Kimbrough Work Program. It also ordered that he pay Citibank $8,715.87 in

      restitution, as a Citibank representative testified at the hearing that Blake had

      used fraudulently obtained credit cards to make purchases in this amount.

      Blake now appeals, challenging the amount of restitution.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-563 | August 21, 2015   Page 2 of 4
                                   Discussion and Decision
[4]   Blake believes the evidence presented at the hearing was insufficient to support

      the trial court’s award of restitution in the amount of $8,715.87. We review a

      trial court’s order of restitution for an abuse of discretion. Rich v. State, 890

      N.E.2d 44, 49 (Ind.Ct.App.2008). An order of restitution must be supported by

      sufficient evidence of the actual loss sustained by the victim. Id. “The amount

      of actual loss is a factual matter that can be determined only upon the

      presentation of evidence.” Id. (quotations omitted). Under an abuse of

      discretion standard, we will not reverse the trial court “if there is any rational

      basis in the record supporting its determination.” Shady v. Shady, 858 N.E.2d

      128, 143 (Ind. Ct. App. 2006).


[5]   At the hearing, the State called Bryan Rozanski, a representative of Citibank, to

      testify. Rozanski testified that, after reviewing Citibank’s records, he believed

      that Blake had made $8,715.87 in purchases using fraudulently obtained credit

      cards while in Indiana. Tr. p. 19. The records that Rozanski relied on were not

      entered into evidence. On cross-examination, Rozanski testified that he was

      not aware of who had signed for the purchases. Tr. p. 20. Blake presented no

      evidence of his own, but argued to the trial court that he believed he had only

      made approximately $3,000 worth of fraudulent purchases while in Indiana.

      Tr. p. 21. The trial court found Rozanski’s testimony to be credible, and

      ordered Blake to pay restitution in the amount of $8,715.87.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-563 | August 21, 2015   Page 3 of 4
[6]   While Blake disagrees with the trial court’s decision, we believe this evidence

      was sufficient to allow the trial court to reasonably conclude as it did. Here,

      Blake had admittedly exerted unauthorized control over Citibank credit cards.

      Tr. p. 8-10. Following Rozanski’s testimony, Blake did not contend that he did

      not make fraudulent purchases using the accounts that Rozanski referenced nor

      did he question Rozanski’s ability to review the records of those accounts

      properly. In fact, he assured the trial court that he was not taking issue with the

      amounts reflected in those records. Tr. p. 37. His argument boiled down to

      little more than the insinuation that someone else could have used the cards to

      make some of the purchases, an argument he reiterates on appeal. 1 Tr. p. 35-37.


[7]   Blake has not shown that the evidence supporting the trial court’s conclusion is

      insufficient, he merely proposes a different set of facts. However, we leave

      factual determinations to the trial court and, on appeal, we do not reweigh the

      evidence or judge the credibility of the witnesses. Shady, 858 N.E.2d at 143.

      Accordingly, we may not entertain Blake’s request.


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


      Riley, J., and Brown, J., concur.




      1
       Blake argued that there was more than one authorized user on the account and that, because the State could
      not produce evidence of who had signed for the purchases, it could not show that Blake had made the
      purchases. However, the State pointed out that Blake was not signing under his own name and that, had the
      case gone to trial, it would have introduced evidence that Blake was acting as both authorized users under
      two aliases and that he had been caught carrying false identification corresponding to both of those aliases.
      Blake did not object to these assertions. Tr. p. 28-31.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-563 | August 21, 2015             Page 4 of 4
