MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             Jan 29 2016, 9:37 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
Mark Olivero                                             Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lyle M. Moser,                                           January 29, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         02A03-1505-CR-418
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Jr., Judge
                                                         Trial Court Cause No.
                                                         02D06-1404-FC-119



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-418 | January 29, 2016         Page 1 of 7
                                             Case Summary
[1]   Lyle Moser appeals his conviction and sentence for Class C felony fraud on a

      financial institution. We affirm.


                                                     Issues
[2]   Moser raises two issues, which we restate as:


                       I.      whether there is sufficient evidence to support
                               his conviction; and

                       II.     whether his eight-year sentence is
                               inappropriate.

                                                     Facts
[3]   On the afternoon of Friday, December 13, 2013, Moser used an ATM to

      deposit two checks at Star Financial Bank (“Star”), a federally-insured

      institution. One check for $2,059.90 purported to be a cashier’s check and

      identified South American Climbing as the remitter. The other check was for

      $1,400.00 and was purported to have been issued by Community Caregivers in

      Ohio. When Moser made the deposit, his account balance was zero.


[4]   Immediately after Moser made the deposit, he began checking the balance and

      attempted to withdraw money from the account. The funds were posted to

      Moser’s account the next day, and he used his ATM card to make several cash

      withdrawals and purchases. By Sunday evening, there were insufficient funds

      in the account, and the ATM card was declined by a merchant.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-418 | January 29, 2016   Page 2 of 7
[5]   When Star attempted to process the checks the next week, both checks were

      dishonored by their respective banks. Michelle Halter, a security analyst and

      senior investigator for Star, began an investigation. She noticed typos on both

      checks and saw that one of them previously had been presented for payment

      and rejected. Halter contacted Moser regarding the checks. Moser explained to

      Halter that he received the checks as payment for car parts he sold on Craigslist.

      Moser denied having been overpaid and offered to bring in the envelopes the

      checks were mailed in but never did.


[6]   On April 29, 2014, the State charged Moser with Class C felony fraud on a

      financial institution. That same day, Moser sent a letter to the prosecutor’s

      office describing himself as a victim of a Craigslist scam, offering to repay the

      money, and indicating that he could provide emails and envelopes to support

      his claim. The letter indicated he had spoken with a detective and would meet

      with the detective when he returned to Indiana. Moser never contacted the

      detective, produced the emails, or repaid Star.


[7]   A jury found Moser guilty as charged. The trial court sentenced him to eight

      years in the Department of Correction. Moser now appeals.


                                                  Analysis
                                                I. Sufficiency

[8]   Moser argues there is insufficient evidence of his intent to defraud Star. When

      reviewing a challenge to the sufficiency of the evidence, we neither reweigh the

      evidence nor assess the credibility of witnesses. Bailey v. State, 979 N.E.2d 133,

      Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-418 | January 29, 2016   Page 3 of 7
       135 (Ind. 2012). We view the evidence—even if conflicting—and all reasonable

       inferences drawn from it in a light most favorable to the conviction and affirm if

       there is substantial evidence of probative value supporting each element of the

       crime from which a reasonable trier of fact could have found the defendant

       guilty beyond a reasonable doubt. Id.


[9]    At the time Moser committed the offense, Indiana Code Section 35-43-5-8(1)

       defined Class C felony fraud on a financial institution as knowingly executing

       or attempting to execute a scheme or artifice to defraud a state or federally-

       chartered or federally-insured financial institution. “A person engages in

       conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” Ind. Code § 35-41-2-2(b).


[10]   Moser contends the State did not prove that he knowingly defrauded Star. He

       refers us to his letter to the prosecutor describing himself as a victim of a

       Craigslist scheme and to his testimony explaining the inconsistencies in his

       various versions of events.


[11]   The evidence most favorable to the verdict, however, established that Moser

       knowingly defrauded Star. For example, there were obvious typos on both

       checks including the misspelled “remmitter,” the lack of capitalization of

       Moser’s last name, and an extra period in an address line. Ex. 3. Also, when

       Moser attempted to cash one of the checks, it was declined, and he was

       instructed to take the check to his bank. Instead, he deposited the checks into

       an account with a zero balance at an ATM on a Friday afternoon while the


       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-418 | January 29, 2016   Page 4 of 7
       bank was open and then performed several balance inquires, withdrawals, and

       purchases, ultimately depleting the funds in two days, before the checks were

       processed by Star.


[12]   Further, Moser’s statements to Halter and the prosecutor were riddled with

       inconsistencies and were inconsistent with his trial testimony. Despite claiming

       to have emails and envelopes to support his story of being a victim of a

       Craigslist scheme, he never produced the emails and waited until the trial to

       present the envelopes that did not positively verify his story. At trial, Moser

       claimed that one person purchased the car and parts he had listed for sale on

       Craigslist and sent Moser three checks, one from Community Caregivers, one

       from South American Climbing, and one from Sears Optical, in advance of

       receiving the car and parts. Moser claimed he never cashed the third check and

       had the envelope at home. He also testified that the car and parts were picked

       up after he became aware the checks were bad, but he did not report the

       incident to the police.


[13]   Finally, Moser testified that his asking price for the car was $1,500.00, which he

       sold for $2,059.00, and that the asking price for the parts was $500.00, which he

       sold for $1,400.00. Moser agreed that the purchaser overpaid by roughly

       $1,500.00 and claimed that the purchaser instructed him to pay the two people

       who picked up the car and parts $500.00 each. This is inconsistent with

       Halter’s testimony that, when she spoke with Moser, he claimed there was no

       overpayment.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-418 | January 29, 2016   Page 5 of 7
[14]   From this evidence, the jury could conclude that Moser knowingly defrauded

       Star. Moser’s arguments to the contrary are a request to reweigh the evidence,

       which we cannot do.


                                                  II. Sentence

[15]   Moser argues that his eight-year sentence is inappropriate. Indiana Appellate

       Rule 7(B) permits us to revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, we find that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender. Although Appellate Rule 7(B) does not require us to be “extremely”

       deferential to a trial court’s sentencing decision, we still must give due

       consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

       App. 2007). We also understand and recognize the unique perspective a trial

       court brings to its sentencing decisions. Id. “Additionally, a defendant bears

       the burden of persuading the appellate court that his or her sentence is

       inappropriate.” Id.


[16]   The principal role of Appellate Rule 7(B) review “should be to attempt to

       leaven the outliers, and identify some guiding principles for trial courts and

       those charged with improvement of the sentencing statutes, but not to achieve a

       perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

       (Ind. 2008). We “should focus on the forest—the aggregate sentence—rather

       than the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,
       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-418 | January 29, 2016   Page 6 of 7
       the damage done to others, and myriad other factors that come to light in a

       given case. Id. at 1224. When reviewing the appropriateness of a sentence

       under Appellate Rule 7(B), we may consider all aspects of the penal

       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[17]   Even if the nature of the offense is not particularly egregious, Moser did present

       three different versions of the crime, ultimately painting himself as a victim of a

       Craigslist scheme. Regarding his character, forty-year-old Moser has seventeen

       misdemeanor convictions and eight felony convictions. His felony convictions

       include burglary, receiving stolen property, receiving stolen auto parts, theft,

       and three counts of fraud. His misdemeanor convictions include multiple

       counts of check deception and criminal conversion. As the trial court aptly

       observed, Moser “has no respect for other people, or for the rules of society. He

       clearly is a thief . . . .” Sentencing Tr. p. 13. Moser has not shown that his

       sentence is inappropriate.


                                                 Conclusion
[18]   There is sufficient evidence to support Moser’s conviction and he has not

       established that his sentence is inappropriate. We affirm.


[19]   Affirmed..


       Robb, J., and Altice, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1505-CR-418 | January 29, 2016   Page 7 of 7
