Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                   Jul 23 2014, 7:12 am
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:

MARIELENA DUERRING                                  GREGORY F. ZOELLER
South Bend, Indiana                                 Attorney General of Indiana

                                                    CYNTHIA L. PLOUGHE
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DAVID JASTRZEMBSKI,                                 )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )         No. 71A03-1312-CR-481
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                          The Honorable Elizabeth C. Hurley, Judge
                              Cause No71D08-1211-FD-1031


                                          July 23, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Senior Judge
                                     STATEMENT OF THE CASE
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          David Jastrzembski appeals from his conviction of one count of check fraud as a

Class D felony, contending that there was insufficient evidence to support his conviction.

Consistent with our standard of review, however, we affirm Jastrzembski’s conviction.

                             FACTS AND PROCEDURAL HISTORY

          Juan Velasquez, an immigrant from Mexico who had been in the United States for

approximately ten years at the time relevant to this appeal, owns a landscaping and small

construction business in St. Joseph County. Velasquez often visited pawn shops in order

to purchase good tools for his businesses. One day while at a pawn shop, Velasquez met

David Jastrzembski and the two began discussing landscaping and construction.

Jastrzembski, who sought subcontractors for his roofing business, AceHomedoctors,

provided a business card to Velasquez and told him that he was involved in the roofing

business. The two developed a relationship sufficient enough for Velasquez to rent one of

his business trucks to Jastrzembski and to loan him money for his sick child.

          Anthony Adamo owned several rental properties in St. Joseph County and hired

Jastrzembski to replace a roof on a rental property he owned on 4138 Bonfield Place in

South Bend in June or July of 2012. Jastrzembski then contacted Velasquez with the offer

to replace the roof on Adamo’s rental property. Jastrzembski and Velasquez entered into

a contract with Velasquez and his workers for labor to remove the old roof and replace it




1
    Ind. Code § 35-43-5-12 (1998).

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with a new one. According to the terms of the contract, Jastrzembski was to supply the

materials for the job.

         When Velasquez and the four members of his work crew arrived at the work site on

July 19, 2012, the only materials they found there were shingles. Velasquez called

Jastrzembski to inquire about the other materials that were needed for the job, such as nails

and insulation. Jastrzembski replied, “[O]kay, can you buy it [?]” Tr. p. 23. Even though

the contract provided otherwise, Velasquez went ahead and purchased the materials

because there was a deadline for the completion of the job.

         When the job was completed, Adamo paid Jastrzembski with a check. Apparently,

Adamo’s check was honored by Adamo’s bank. Although Adamo did not actually see

Jastrzembski cash the check, he saw him walk into what he believed was a Wells Fargo

Bank branch. Jastrzembski later met with Velasquez on July 24, 2012 at a Walgreens

Pharmacy and gave him a check for $2,479.16, written on an account in Jastrzembski’s

name with Wells Fargo Bank, check number 4056. Velasquez deposited the check in his

bank account with Notre Dame Federal Credit Union.

         Several days later, Velasquez was attempting to purchase material at a Lowe’s

Home Improvement Store when his credit card was declined. Velasquez contacted the

branch manager at his bank and was informed that Jastrzembski’s check was not good. A

legal copy of the check had been returned with the stamp “CLOSED ACCOUNT.” State’s

Ex. 2.

         Velasquez eventually located Jastrzembski and asked him about the dishonored

check. According to Velasquez, Jastrzembski started “to give me a lot of excuses. I’m

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going [to] pay tomorrow.” Tr. p. 28. At some point, Jastrzembski provided Velasquez a

money order for either $1,000 or $1,500 to cover what he was owed for the borrowed truck

or the borrowed money. Jastrzembski never paid Velasquez for the work on the Adamo

work site.

       Robin Morgan, the branch manager at Wells Fargo Bank, testified that the check

Jastrzembski delivered to Velasquez was a Wells Fargo check, and was not a starter check

issued by the bank based upon unique markings starter checks have and the high number

of the check. Morgan searched the bank’s database to find a record of accounts bearing

the account number on the check and could find none. She testified that she was able to

locate two accounts opened in Jastrzembski’s name that were subsequently closed. Neither

of those account numbers matched the account number on the check issued to Velasquez.

In addition, Morgan testified that if she is unable to locate an account, one explanation is

that there has been no activity on the account for more than three years. Once that occurs,

the computerized record of that account is purged from the bank’s system.

       On November 26, 2012, the State charged Jastrzembski with one count of check

fraud as a Class D felony. At the conclusion of his jury trial, Jastrzembski was found guilty

as charged. The trial court sentenced him to a term of two years in the Department of

Correction with Class 1 credit for six days served prior to sentencing. Jastrzembski now

appeals, claiming that the evidence is insufficient to sustain his conviction for check fraud.

                             DISCUSSION AND DECISION

       Our standard of review with regard to sufficiency claims is well settled. In
       reviewing a sufficiency of the evidence claim, this Court does not reweigh
       the evidence or judge the credibility of the witnesses. We will consider only

                                              4
       the evidence most favorable to the judgment and the reasonable inferences
       drawn therefrom and will affirm if the evidence and those inferences
       constitute substantial evidence of probative value to support the judgment.
       A conviction may be based upon circumstantial evidence alone. Reversal is
       appropriate only when reasonable persons would not be able to form
       inferences as to each material element of the offense.

Lainhart v. State, 916 N.E.2d 924, 939 (Ind. Ct. App. 2009) (internal citations omitted).

       In order to establish that Jastrzembski had committed check fraud, the State was

required to prove beyond a reasonable doubt that Jastrzembski knowingly or intentionally

obtained property, i.e., materials and services, through a scheme or artifice, with intent to

defraud by issuing or delivering a check, knowing that the check will not be paid or honored

by the financial institution upon presentment in the usual course of business. Ind. Code §

35-43-5-12 (1998). In particular, he challenges the State’s evidence of his intent to defraud,

contending that the facts instead reflect that this was a dispute between contractors.

       Intent is a mental state, and absent an admission, the jury 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 that might be expected from that conduct, there exists
       a showing or inference of the required criminal intent. The jury may draw
       reasonable inferences from both direct and circumstantial evidence, and a
       guilty verdict may be based on circumstantial evidence alone. It is well-
       established that the trier of fact can infer the defendant’s knowledge from
       circumstantial evidence.

Germaine v. State, 718 N.E.2d 1125, 1132 (Ind. Ct. App. 1999) (internal citations omitted).

Further, “intent to defraud may be proven by circumstantial evidence . . . and will often

include the general conduct of the defendant when presenting the instrument for

acceptance.” Williams v. State, 892 N.E.2d 666, 671 (Ind. Ct. App. 2008) (quoting




                                              5
McHenry v. State, 820 N.E.2d 124, 127 (Ind. 2005) and Wendling v. State, 465 N.E.2d 169,

170 (Ind. 1984)).

      The evidence most favorable to the jury’s verdict reveals that Jastrzembski provided

Velasquez a check for $2,479.16 on a Wells Fargo account in exchange for Velasquez

providing materials and labor for the replacement of the roof on Adamo’s rental property.

The check was from a closed account that did not exist, as nothing in the computer system

registered for that account number at Wells Fargo. Jastrzembski had two other accounts

with Wells Fargo and those accounts were also closed. This evidence is sufficient to

support the inference that when Jastrzembski delivered the check to Velasquez, he knew

that the check, written on a closed account, would not be honored by Wells Fargo upon

presentment.

      Additionally, when Velasquez confronted Jastrzembski about the dishonored check,

Jastrzembski’s reaction was not one of surprise that the check was dishonored. Instead,

Jastrzembski provided excuses for the bad check and stated repeatedly that he would pay

Velasquez. At the time of the trial, however, Jastrzembski had not paid Velasquez for the

materials and labor provided by Velasquez.

      On appeal, Jastrzembski focusses on evidence that he provided a money order for

either $1,000 or $1,500 to Velasquez after writing the bad check. Velasquez testified,

however, that the money was not payment for the roofing work and materials, but was

payment for the truck rental and money loaned for Jastrzembski’s sick child. “The jury

was free to choose which witnesses to believe and disbelieve.” Bennett v. State, 883 N.E.2d



                                             6
888, 893 (Ind. Ct. App. 2008). Here, the jury chose to believe Velasquez’s testimony and

was within its province to do so.

       Jastrzembski also asserts that the conduct involved suggests a dispute between two

businessmen over incomplete work, rather than a crime. However, Jastrzembski wrote a

bad check on a closed account and gave it to Velasquez. While Adamo testified that

initially the gutters had not been repaired at the rental property, he also testified that he did

not have any problems with the work. Velasquez explained that his crew damaged a

portion of the gutter while repairing the roof, but that they later replaced the damaged

section of gutter. The jury was free to believe or disbelieve the testimony presented and

chose to believe that Jastrzembski’s conduct constituted a criminal offense. The evidence

is sufficient to support the jury’s verdict finding Jastrzembski guilty of obtaining

Velasquez’s services and materials through a scheme with the intent to defraud by

delivering a check he knew would not be paid or honored by Wells Fargo upon presentment

in the usual course of business.

                                       CONCLUSION

       For the foregoing reasons, we affirm the trial court.

       Affirmed.

NAJAM, J., and PYLE, J., concur.




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