MEMORANDUM DECISION                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),                           Aug 31 2016, 8:56 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
Mark A. Thoma                                            Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
                                                         George P. Sherman
Fort Wayne, Indiana                                      Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paul R. Nichols,                                         August 31, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1511-CR-2082
        v.                                               Appeal from the
                                                         Allen Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Frances C. Gull
                                                         Trial Court Cause No.
                                                         02D04-1409-FC-215



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-2082 | August 31, 2016    Page 1 of 7
[1]   Paul R. Nichols (“Nichols”) appeals his conviction, following a jury trial, for

      fraud on a financial institution,1 a Class C felony, raising the following restated

      issue: whether the evidence was sufficient to support his conviction.


[2]   We affirm.


                                   Facts and Procedural History
[3]   The facts most favorable to the verdict are that Glaser & Ebbs law firm

      represented Nichols in a personal injury action in the fall of 2013. After the

      parties settled the claim, Glaser & Ebbs issued Nichols a check (“the Check)

      from the firm’s trust account in the settlement amount of $2,894.05. Nichols

      personally picked up the Check from the firm’s Fort Wayne law office on

      November 27, 2013 at 4:19 p.m. That same day, less than twenty minutes later,

      the Check was deposited into Nichols’s JP Morgan Chase (“Chase”) account at

      a branch in downtown Fort Wayne.


[4]   On December 5, 2013, Nichols appeared at the Waynedale branch of 1st Source

      Bank (“1st Source”), located in Allen County, and cashed the Check. Glaser &

      Ebbs subsequently contacted 1st Source to ask why the Check had been cashed

      twice. After confirming that the Check had, indeed, been presented twice for

      payment, 1st Source contacted the police and reimbursed Glaser & Ebbs for the




      1
        See Ind. Code § 35-43-5-8. We note that, effective July 1, 2014, a new version of this criminal statute was
      enacted. Because Nichols committed his crime prior to July 1, 2014, we will apply the statute in effect at the
      time he committed his crimes.

      Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-2082 | August 31, 2016             Page 2 of 7
      second withdrawal from the law firm’s account. The State charged Nichols

      with Class C felony fraud on a financial institution.


[5]   Nichols’s trial was held in September 2015, and the jury found him guilty as

      charged. The following month, the trial court sentenced Nichols to two years

      in the Department of Correction, but allowed that Nichols could serve his

      sentence on home detention if he was eligible. The trial court also ordered

      Nichols to pay restitution to 1st Source in the amount of $3,218.05. Appellant’s

      App. at 59. Nichols now appeals. Additional facts will be added as needed.


                                     Discussion and Decision

[6]   On appeal, Nichols claims that there was insufficient evidence to support his

      conviction for Class C felony fraud on a financial institution. Addressing a

      challenge to the sufficiency of the evidence to support a conviction, this court

      neither reweighs the evidence nor judges the credibility of the witnesses;

      instead, we respect the exclusive province of the trier of fact to weigh any

      conflicting evidence. Harrison v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015),

      trans. denied. Moreover, we consider only the evidence most favorable to the

      verdict and all reasonable inferences to be drawn therefrom. 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. That is, “[r]eversal is only appropriate

      when reasonable persons would be unable to form inferences as to each



      Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-2082 | August 31, 2016   Page 3 of 7
      material element of the offense.” Mateo v. State, 981 N.E.2d 59, 71 (Ind. Ct.

      App. 2012), trans. denied.


[7]   Indiana Code section 35-43-5-8 provides in pertinent part:

              A person who knowingly executes, or attempts to execute, a
              scheme or artifice: (1) to defraud a state or federally chartered or
              federally insured financial institution; or (2) to obtain any of the
              money, funds, credits, assets, securities, or other property owned
              by or under the custody or control of a state or federally
              chartered or federally insured financial institution by means of
              false or fraudulent pretenses, representations, or promises;
              commits a Class C felony.


      To convict Nichols of fraud on a financial institution, the State had to prove

      that he did knowingly execute or attempt to execute, a scheme or artifice to

      defraud 1st Source Bank, a state or federally chartered, or federally insured,

      financial institution. Appellant’s App. at 10.


[8]   Nichols alleges that insufficient evidence was introduced at trial to show that he

      was the person who deposited the check into his Chase checking account on

      November 27, 2013. Accordingly, he argues that he could not have knowingly

      attempted to defraud 1st Source when he cashed the same check on December

      5, 2013.


[9]   Nichols concedes that the proceeds from the Check “were in fact deposited into

      his account at Chase Bank,” and that it was, indeed, he who “cashed the

      [C]heck at [1st] Source Bank on December 5, 2013. Appellant’s Br. at 9-10. Even

      so, he maintains that “it is too tenuous an inference that he was the one who

      Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-2082 | August 31, 2016   Page 4 of 7
       made the Chase Bank deposit on November 27, 2013.” Id. at 9-10. Nichols

       asserts that, because there was no evidence that he was the one who initially

       deposited the Check into the Chase account and spent the proceeds from the

       deposited Check, there was insufficient evidence that he committed fraud on a

       financial institution when he cashed the Check at 1st Source. We disagree.


[10]   We begin by noting that Nichols’s claim that there was insufficient evidence

       that he spent the money was irrelevant to his conviction. Here, the State did

       not have to prove who spent the money or even that the money was spent.

       Nichols’s conviction for defrauding a financial institution required proof that he

       knowingly executed or attempted to execute a scheme or artifice to defraud 1st

       Source Bank. See Ind. Code § 35-43-5-8. Stated differently, the State only had

       to prove that Nichols presented the Check to 1st Source for payment knowing

       that the Check had previously been presented for payment.


[11]   During trial, a paralegal, employed by Glaser & Ebbs, testified that Nichols

       personally picked up the Check from the law firm’s Fort Wayne office on

       November 27, 2013 at 4:19 p.m. Tr. at 92. A Chase branch manager, Michael

       Loveless (“Loveless”), testified that he was working at Chase’s downtown

       branch on November 27, 2013. Recognizing his own handwriting on the

       November 27 deposit slip, Loveless testified that he had handled the pertinent

       transaction. Id. at 99. Loveless testified that it was his general practice to scan

       a check, deposit the proceeds into the customer’s account, and then place the

       negotiated check into the bin next to the teller window. Id. at 101. Loveless

       admitted, however, that, while unlikely, it was possible that he could have

       Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-2082 | August 31, 2016   Page 5 of 7
       handed the Check back to Nichols or Nichols could have reached into the bin

       and retrieved the Check. Id. at 104-05. Answering a question from a juror,

       Loveless acknowledged that he would not have asked Nichols for identification

       because “[a]nybody can make a deposit to anybody’s account.” Id. at 115-16.


[12]   Fort Wayne Police Detective James Wenglikowski (“Detective

       Wenglikowski”), who was part of the Financial Crimes Division, admitted that

       a taped recording of the transaction no longer existed. Id. at 157-58. He

       testified that, as part of the investigation and by means of a subpoena, he

       obtained Nichols’s Chase checking account records. Those records revealed

       that the Check was deposited into Nichols’s Chase account on November 27,

       2013 at 4:28 p.m. Id. at 170. Because the Check was deposited less than twenty

       minutes after Nichols picked it up from the law firm, the jury could have

       reasonably inferred that Nichols was the individual who deposited the check

       into his Chase account. This inference was also supported by the fact that the

       Check was still in Nichols’s possession about a week later when he cashed the

       Check at 1st Source. Id. at 123-24.


[13]   Focusing on Loveless’s inability to identify him as the Chase customer and on

       the absence of a video recording of the transaction, Nichols claims that there

       was insufficient evidence to support his conviction. We disagree. The evidence

       to which Nichols points was offered at trial, but discounted by the jury in

       reaching its guilty verdict. Based on the evidence presented at trial, the jury

       could have concluded that Nichols picked up the Check from the law firm and

       immediately went to Chase to deposit it. Nichols’s argument to the contrary is

       Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-2082 | August 31, 2016   Page 6 of 7
       essentially an invitation to reweigh the evidence, which we will not do. Robey v.

       State, 7 N.E.3d 371, 378-79 (Ind. Ct. App. 2014), trans. denied. We therefore

       conclude that sufficient evidence was presented at trial to support Nichols’s

       conviction for Class C felony fraud on a financial institution.


[14]   Affirmed.


[15]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1511-CR-2082 | August 31, 2016   Page 7 of 7
