FOR PUBLICATION
                                                         FILED
                                                       Jun 22 2012, 9:03 am


                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court



ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

PETER D. TODD                                GREGORY F. ZOELLER
Elkhart, Indiana                             Attorney General of Indiana

                                             AARON J. SPOLARICH
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

RAFAEL BOCANEGRA,                            )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 20A03-1108-CR-361
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE ELKHART SUPERIOR COURT
                        The Honorable Charles C. Wicks, Judge
                            Cause No. 20D05-1103-FC-9


                                    June 22, 2012

                             OPINION - FOR PUBLICATION


MAY, Judge
          Rafael Bocanegra appeals his conviction of forgery, a Class C felony.1 Bocanegra

argues the State did not prove his intent to defraud. We affirm and remand.

                           FACTS AND PROCEDURAL HISTORY

          Bocanegra applied for a job with Keystone RV Company (“Keystone”) in Goshen,

Indiana. On the application, he listed his name as “John Giron” and provided a Social

Security number (“SSN”). (State’s Exhibit 1.) He listed “Gonzalo Bocanegra” as an

emergency contact person. (Id.) Bocanegra submitted with his application a Social

Security card bearing the name John Giron and an identification card purportedly issued

by the State of Ohio that bore the name John Giron. Keystone hired Bocanegra.

          John Giron, a resident of Cicero, Illinois, received a letter from the Internal

Revenue Service accusing him of failing to report income from Keystone. Giron filed a

police report in Goshen and an investigation revealed Bocanegra had used Giron’s name

and SSN on Keystone’s job application and on the Social Security card he provided to

Keystone. Bocanegra admitted to the police that he was not Giron. He said a neighbor

had given him a Social Security card and an identification card so he could get a job with

Keystone.

          The State charged Bocanegra with forgery, a Class C felony, and identity

deception, a Class D felony, Ind. Code § 35-43-5-3.5 (2009). A jury found him guilty,

and the trial court sentenced him only on the forgery conviction.2


1
    Ind. Code § 35-43-5-2(b).
2
 The court found the identity deception conviction “would merge for sentencing purposes.” (Tr. at 294.)
The court should have vacated the identity deception conviction, and we remand for that purpose. See
Clark v. State, 752 N.E.2d 209, 210 (Ind. Ct. App. 2001), trans. denied.
                           DISCUSSION AND DECISION

      When an appellant challenges the sufficiency of evidence supporting a conviction,

we do not reweigh the evidence or judge the credibility of the witnesses. Joslyn v. State,

942 N.E.2d 809, 811 (Ind. 2011).        We consider only the probative evidence and

reasonable inferences drawn from the evidence that support the verdict. Id. We will

affirm if the probative evidence and reasonable inferences drawn from the evidence could

have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable

doubt. Id.

      To convict Bocanegra of forgery, the State was required to prove beyond a

reasonable doubt that (1) Bocanegra, (2) with intent to defraud, (3) made, uttered, or

possessed a written instrument in such a manner that it purported to have been made (a)

by another person (b) at another time (c) with different provisions or (d) by authority of

one who did not give authority. Ind. Code § 35-43-5-2.

      Proof of intent to defraud requires a showing the defendant demonstrated “intent

to deceive and thereby work a reliance and injury.” Wendling v. State, 465 N.E.2d 169,

170 (Ind. 1984) (emphasis added). Actual injury is not required; potential injury is

enough. See Diallo v. State, 928 N.E.2d 250, 252 (Ind. Ct. App. 2010) (“[T]here must be

a potential benefit to the maker or potential injury to the defrauded party”) (quoting

Jacobs v. State, 640 N.E.2d 61, 65 (Ind. Ct. App. 1994) (emphasis added).

      In Lohmiller v. State, 884 N.E.2d 903 (Ind. Ct. App. 2008), we addressed whether

Lohmiller had intent to defraud.     Lohmiller was licensed to practice as a nurse in

Georgia. She moved to Indiana but did not acquire an Indiana nursing license. Lohmiller

                                            3
began working at the Carroll County Health Department and was promoted to a position

that required her to have an Indiana license. She signed her name as “Rebecca Lohmiller

RN, MSN” on at least twenty-seven occasions. Lohmiller had received a job description

for her position, which indicated the employee must be a graduate of an accredited school

of nursing and licensed in Indiana.

        The Vital Records Clerk for the health department asked for a copy of her Indiana

nursing license when Lohmiller was hired and on occasion throughout her employment.

Lohmiller said her license was in a bank safety deposit box. After the department was

unable to find a record of the license in the State’s records, Lohmiller was again asked for

confirmation and she provided alternate names. Finally, after providing excuses for four

years, Lohmiller confessed to the department that she was not a licensed nurse in Indiana.

The State charged Lohmiller with forgery and practicing nursing without a license.

        We found the State had proven her intent to defraud:

        In sum, the evidence presented at trial shows Lohmiller’s elaborate scheme
        to pass herself off as a nurse registered in Indiana. After knowingly
        accepting a job that required the employee to be a nurse registered in
        Indiana, Lohmiller lied about her qualifications for four years. While in
        that position, she signed at least twenty-seven documents in which she held
        herself out to be an Indiana-licensed nurse. This evidence is sufficient to
        show that Lohmiller knowingly or intentionally made or uttered a written
        instrument in such a manner that it purports to have been made by authority
        of one who did not give authority.

Id. at 909. 3


3
   The State asserts “[a] company’s reliance on a defendant’s claims to have proper credentials for
employment is sufficient evidence of intent to defraud.” (Br. of Appellee at 7), citing Lohmiller, 884
N.E.2d at 908-09. There is no such statement in Lohmiller, and we decline the State’s invitation to hold
someone else’s reliance on a defendant’s words or acts, without more, proves the defendant spoke or
acted with criminal intent.
                                                   4
       The case before us is similar.      The jury heard Bocanegra did not have the

documents he needed to work legally in the United States and he used someone else’s

documents, and it could reasonably have inferred Keystone was subject to potential

penalties for hiring a person who was not legally permitted to work. There was sufficient

evidence, in the form of potential injury to his employer, of his intent to defraud.

       Bocanegra’s offense took place in 2010, and he argues a showing of actual injury

to the defrauded party is now required. He correctly notes the statute in place at the time

of an alleged criminal act controls the prosecution of an offense and the punishment

therefor. Collins v. State, 911 N.E.2d 700, 708 (Ind. Ct. App. 2009), trans. denied. On

July 1, 2005, an amendment to Ind. Code § 35-43-5-2, the statute under which Bocanegra

was charged with forgery, took effect. It created and defined the crime of counterfeiting,

a Class D felony. 2005 Ind. Acts 1448.

       Bocanegra argues the 2005 amendment evidences legislative intent to distinguish

forgery as a Class C felony from the newer offense of counterfeiting. With the passage

of the 2005 amendment, he argues, we had in place two different offenses, a greater and a

lesser crime. In the lesser offense of counterfeiting, there need not be intent to defraud.

Ind. Code § 35-43-5-2(a).

       Bocanegra argues the sole purpose for the creation of the offense of counterfeiting

was to permit prosecution when the State cannot prove intent to defraud, as until the

statutory amendment in 2005, there was no crime of which to convict a defendant who

intentionally deceived a victim and benefitted from such deception yet caused no harm.



                                              5
Bocanegra received a benefit from his deception; he obtained employment for which he

was paid. But he claims the State did not prove Keystone sustained any actual injury, as

Keystone received the labor from Bocanegra for which it bargained.4 The State did not

charge Bocanegra with counterfeiting, and the jury was not instructed as to that offense.

          We find persuasive the reasoning underlying Bocanegra’s argument, but we must

decline to disregard those Indiana decisions after the passage of the counterfeiting statute

in 2005 that indicate actual injury still need not be proven in order to convict of forgery.

Panels of this court have continued after 2005 to recognize, at least in dicta, that potential

injury is enough to prove intent to defraud for forgery purposes. 5 See, e.g., Diallo v.

State, 928 N.E.2d 250, 252-53 (Ind. Ct. App. 2010):6

          “An intent to defraud involves an intent to deceive and thereby work a
          reliance and an injury.” Williams v. State, 892 N.E.2d 666, 671 (Ind. Ct.
          App. 2008) (citing Wendling v. State, 465 N.E.2d 169, 170 (Ind. 1984)).
          “[T]here must be a potential benefit to the maker or potential injury to the
          defrauded party.” Jacobs [v.State, 640 N.E.2d 61, 65 (Ind. Ct. App. 1994)].
          Because intent is a mental state, the fact-finder often must “resort to the
          reasonable inferences based upon an examination of the surrounding
          circumstances to determine” whether -- from the person’s conduct and the
          natural consequences therefrom -- there is a showing or inference of the


4
    The State does not argue there was injury to any entity other than Keystone.
5
   We acknowledge all rely on pre-2005 decisions, and none explicitly considered the effect of the
counterfeiting statute.
6
   The other decisions are unpublished: Arline v. State, 959 N.E.2d 402 (Ind. Ct. App. 2011), Jones v.
State, 957 N.E.2d 214 (Ind. Ct. App. 2011), and Stewart v. State, 873 N.E.2d 1144 (Ind. Ct. App. 2007),
trans. denied. The finding of intent to defraud in Arline appears to be based on benefit to Arline rather
than injury, potential or otherwise, to anyone. In Jones, the basis for the finding of intent to defraud is
less clear, as both benefit and injury were discussed. But Jones was convicted of theft from the same
victim based on the same forgery, suggesting there was actual injury. The Stewart panel was also less
than explicit, but the facts of that case indicate both the benefit and the injury were only “potential.”
Stewart presented counterfeit Postal Service money orders on several occasions, but it does not appear
any were accepted.
                                                      6
       requisite criminal intent. M.Q.M. v. State, 840 N.E.2d 441, 446 (Ind. Ct.
       App. 2006).

(Emphasis added.)

       A post-2005 disciplinary order, In re Sniadecki, 924 N.E.2d 109, 118 (Ind. 2010),

suggests our Indiana Supreme Court still believes potential injury is enough. Sniadecki

falsified documents, and directed his staff to create false documents, in order to obtain a

loan so he could repay a client to whom he owed money. The finding Sniadecki had

intent to defraud and committed forgery appears premised on injury that was only

potential. The lender ultimately withdrew funding on May 19, 2008, because of an

anonymous phone call suggesting there were falsehoods in the documentation. Sniadecki

ultimately obtained a loan from a relative of his wife, and he paid his client the amount

due on the promissory note.

       Though there apparently was no actual injury, our Supreme Court found “[b]y the

actions described above, Respondent committed forgery, see Indiana Code § 35–43–5–

2,” and violated Professional Conduct Rules prohibiting committing a criminal act, i.e.,

forgery, that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a

lawyer. 924 N.E.2d at 118-19. And see In re Rawls, 936 N.E.2d 812, 816 (Ind. 2010)

(where Rawls “created a fraudulent receipt, criminally forged a client’s name on it, and

submitted it to the Commission, acting as an agency of this Court, with the intent of

deceiving the Commission.”       Any injury to the Commission appeared to be only

“potential.”).




                                            7
      We therefore hold potential injury remains a sufficient basis for a finding of

criminal intent in a forgery prosecution. As the jury could have reasonably inferred

Bocanegra’s misrepresentations subjected his employer to potential injury, we affirm his

conviction of forgery and remand for vacation of the identity deception conviction.

      Affirmed and remanded.

BROWN, J., concurs.

SULLIVAN, Sr.J., dissents with separate opinion.




                                            8
                             IN THE
                   COURT OF APPEALS OF INDIANA

RAFAEL BOCANEGRA,                               )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )    No. 20A03-1108-CR-361
                                                )
STATE OF INDIANA,                               )
                                                )
      Appellee-Plaintiff.                       )


SULLIVAN, Senior Judge, dissenting.

      I respectfully dissent from the majority opinion, which affirms the conviction for

forgery, a Class C felony. Ind. Code § 35-43-5-2(b) (2006).

      Proof of intent to defraud requires a showing that the defendant demonstrated

“intent to deceive and thereby work a reliance and injury.” Wendling v. State, 465

N.E.2d 169, 170 (Ind. 1984) (emphasis added); see also Diallo v. State, 928 N.E.2d 250,

252 (Ind. Ct. App. 2010). With regard to proof of the basic requirement of an intent to

deceive, the majority opinion relies heavily on Lohmiller v. State, 884 N.E.2d 903 (Ind.

Ct. App. 2008), in which a panel of this Court concluded that the evidence was sufficient

to sustain a conviction for forgery. Lohmiller is not controlling here, but it serves to

illustrate an important point regarding Indiana Code section 35-43-5-2.




                                            9
       It is clear that the statute in place at the time of the alleged criminal act or acts is

the statute which controls the prosecution of an offense and the punishment therefor. See

Collins v. State, 911 N.E.2d 700, 708 (Ind. Ct. App. 2009) (“The law [that] is in effect at

the time that the crime was committed is controlling.”), trans. denied.             Lohmiller

involved acts by the defendant which occurred on or before June 29, 2004. On July 1,

2005, an amendment to Indiana Code section 35-43-5-2 took effect, creating and defining

the crime of counterfeiting, a Class D felony. 2005 Ind. Acts 1448. Thus, at the time of

Lohmiller’s offenses, the provision of Indiana Code section 35-43-5-2 creating and

defining the crime of counterfeiting was not yet in effect, having been enacted and

effective as of July 1, 2005. Lohmiller could not have been validly charged with or

convicted of counterfeiting. That is not the case with the matter before us.

       Here, Bocanegra convincingly argues that the 2005 statutory amendment

evidences a clear intent to draw a line of demarcation between what was then the only

offense, i.e., forgery as a Class C felony, and the lesser offense of counterfeiting. With

the passage of the 2005 amendment, we then had in place two different offenses, a

greater and a lesser crime. In the lesser offense of counterfeiting, there need not be an

intent to defraud. Ind. Code § 35-43-5-2(a). I conclude that Bocanegra’s argument is

correct as to the current state of the law.

       Lohmiller addresses a finding of intent to defraud under the forgery provision of

the statute. Until the statutory amendment in 2005, there was no crime of which to

convict a defendant who intentionally deceived the “victim” and benefitted from such

deception but caused no harm.

                                              10
       Here, Bocanegra certainly received a benefit from his deception in that he

obtained employment for which he was paid. But even though Keystone relied upon the

information provided by Bocanegra and hired him, I do not discern any injury sustained

by Keystone. Keystone received the labor from Bocanegra for which it bargained.

       Thus, even if we hold the forgery provision of the statute in play without regard to

the applicable existence of the lesser offense of counterfeiting and apply the Lohmiller

rationale to this evidence, a fatal omission is present.7 To obtain a forgery conviction the

State must prove harm to the entity deceived.              Here, that entity is the employer,

Keystone. It is not relevant to prove that a third party, such as an unsuccessful applicant

for the position filled by Bocanegra, was harmed. Under the facts of our case, it is clear

that there was no intent to deceive any entity other than Keystone.

       The evidence demonstrates that Keystone relied upon Bocanegra’s deception in

hiring him. The fact remains, however, that Bocanegra performed the work for which he

was hired and paid. I discern no legally cognizable harm to Keystone from that. One

might deduce that by hiring Bocanegra, Keystone was incurring a prospective or possible

inquiry and sanctions for hiring an illegal alien. See Jacobs v. State, 640 N.E.2d 61, 65

(Ind. Ct. App. 1994) (stating that potential injury is sufficient to prove intent to defraud),

trans. denied; Lewis v. State, 169 Ind. App. 172, 346 N.E.2d 754, 759 (1976) (holding

that proof of actual harm from the fraudulent act is “immaterial”). Nevertheless, such

speculative “harm” does not meet the requirement for proof of a legal harm or injury.


7
  The State did not charge Bocanegra with counterfeiting, and the jury was not instructed as to that
offense.
                                                11
        The word “potential” is defined as “capable of coming into being; possible.”

Black’s Law Dictionary 1206 (8th ed. 1999). This Court has said that a determination of

factual issues “depend[s] upon probability NOT possibility or certainty.” Beaman v.

Hedrick, 146 Ind. App. 404, 255 N.E.2d 828, 832 (1970) (emphasis in original). Thus, a

mere “possibility” is not an adequate test for an act that allows conviction for a crime

calling for a significant term of imprisonment. Accordingly, I would decline to follow

those cases which suggest that a potential harm is of itself sufficient to support a forgery

conviction as it is defined under the Indiana statute.

        I conclude that there is insufficient proof of an injury to Keystone because it

received the benefit of Bocanegra’s work regardless of his legal status, without any

negative consequences set forth in the record. In my opinion, Bocanegra’s conviction is

not sustained by the evidence.

        For the reasons stated above, I would reverse Bocanegra’s conviction for forgery.8




8
  However, I do not agree with the majority, as stated in footnote 2, that under the circumstances the
identity deception conviction must be vacated. I would leave in place the identity deception conviction. I
would do so in light of my view that the forgery conviction should be reversed.
                                                   12
