MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                 FILED
this Memorandum Decision shall not be                                              Jan 30 2020, 9:32 am

regarded as precedent or cited before any                                              CLERK
court except for the purpose of establishing                                       Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Sally Skodinski                                          Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Courtney L. Abshire
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brett Michael Horein,                                    January 30, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1966
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable David C.
Appellee-Plaintiff.                                      Chapleau, Judge
                                                         The Honorable Julie Verheye,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         71D06-1903-CM-1167



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1966 | January 30, 2020                    Page 1 of 7
                                       Statement of the Case
[1]   Brett Horein (“Horein”) appeals his conviction, following a bench trial, for

      Class A misdemeanor conversion.1 Horein argues that there was insufficient

      evidence to support his conviction. Concluding that Horein’s argument is

      merely a request to reweigh the evidence, we deny this request and affirm his

      conviction.


[2]   We affirm.


                                                     Issue
                      Whether sufficient evidence supports Horein’s conviction.


                                                     Facts
[3]   On February 19, 2019, Horein called his father, Bruce Horein (“Bruce”), and

      asked if he could go to Bruce’s house to use his laptop. Bruce agreed. Bruce—

      who had had a prior incident with Horein that led to Bruce testifying in a

      criminal case against his son in January—arranged for Ronald Baker (“Baker”),

      who was a friend of both Horein and Bruce, to be at the house when Horein

      arrived. Thereafter, Horein and his friend Lennie (“Lennie”) went to Bruce’s

      house. After Horein had used Bruce’s laptop, he walked over to a cabinet

      where Bruce kept his cell phones and electronics. In this cabinet, Bruce had a

      refurbished iPhone that he had previously purchased online for his wife, and




      1
          IND. CODE § 35-43-4-3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1966 | January 30, 2020   Page 2 of 7
      the phone was still in its box. Horein took the box, opened it, took out the cell

      phone, and asked Bruce why he had Horein’s cell phone. Bruce told Horein,

      “That’s not your phone[.]” (Tr. Vol. 2 At 17). Horein responded, “How do

      you know? You have my phone.” (Tr. Vol. 2 at 17). Bruce again told Horein

      that the phone was not his and that he had purchased it for his wife. When

      Bruce approached Horein to take the phone, Horein “became very angry” and

      “came at” Bruce. (Tr. Vol. 2 At 18). Lennie intervened and pushed Horein

      away from Bruce. Horein took out his own cell phone that he had brought with

      him, threw it at Bruce, and said “this piece of crap is your phone.” (Tr. Vol. 2

      at 18). Horein then left Bruce’s house with Bruce’s refurbished iPhone and

      never returned it. Thereafter, Bruce contacted the police.


[4]   The State charged Horein with Class A misdemeanor conversion. On July 25,

      2019, the trial court held a bench trial, during which Bruce and Baker testified

      regarding Horein’s actions at Bruce’s house. Baker also testified he had been

      with Bruce when he had made the online purchase of the refurbished iPhone

      and that he knew Bruce had purchased it for his wife. Additionally, Baker

      corroborated Bruce’s testimony that Bruce had told Horein that the refurbished

      iPhone did not belong to Horein. The trial court found Horein guilty as

      charged, imposed a sentence of thirty (30) days, and ordered him to pay

      restitution. Horein now appeals.


                                                  Decision
[5]   Horein argues that the evidence was insufficient to support his Class A

      misdemeanor conversion conviction.
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1966 | January 30, 2020   Page 3 of 7
              When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting the verdict. It is
              the fact-finder’s role, not that of appellate courts, to assess
              witness credibility and weigh the evidence to determine whether
              it is sufficient to support a conviction. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The
              evidence is sufficient if an inference may reasonably be drawn
              from it to support the verdict.


      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

      and citations omitted) (emphasis in original).


[6]   The conversion statute, INDIANA CODE § 35-43-4-3(a), provides that “[a] person

      who knowingly or intentionally exerts unauthorized control over property of

      another person commits criminal conversion, a Class A misdemeanor.” Thus,

      to convict Horein for conversion as charged, the State was required to establish

      beyond a reasonable doubt that Horein knowingly or intentionally exerted

      unauthorized control over Bruce’s refurbished iPhone. “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.” I.C. § 35-41-2-2(b). “A person engages in

      conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious

      objective to do so.” I.C. § 35-41-2-2(a).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1966 | January 30, 2020   Page 4 of 7
[7]   Horein contends that the State failed to prove that he had the required intent

      because he “reasonably believed” that the refurbished iPhone was his own.

      (Horein’s Br. 7). To support his argument, Horein cites to the statutory defense

      of mistake of fact in INDIANA CODE § 35-41-3-7, which provides that “[i]t is a

      defense that the person who engaged in the prohibited conduct was reasonably

      mistaken about a matter of fact, if the mistake negates the culpability required

      for commission of the offense.” A mistake of fact defense requires a defendant

      to prove that: (1) the mistake was honest and reasonable; (2) the mistake was

      about a matter of fact; and (3) the mistake negates the culpability required to

      commit the crime. See Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997); Nolan

      v. State, 863 N.E.2d 398, 404 (Ind. Ct. App. 2007), trans denied. A mistake of

      fact defense is a question for the finder of fact, and we review the issue by the

      same standard as we do with a challenge to the sufficiency of the evidence.

      Saunders v. State, 848 N.E.2d 1117, 1121 (Ind. Ct. App. 2006), trans. denied.


[8]   Horein “acknowledges that the defense of ‘mistake of fact’ was not specifically

      presented at trial,” but he contends that the trial court “should have considered

      it” nonetheless. (Horein’s Br. 7). We disagree. Because Horein is raising this

      affirmative defense for the first time on appeal, he has waived it. See Lafary v.

      Lafary, 476 N.E.2d 155, 159 (Ind. Ct. App. 1985) (providing that affirmative

      defenses must be raised at trial and cannot be raised for the first time on

      appeal).


[9]   Waiver notwithstanding, Horein has failed to show that any mistake of fact was

      reasonable. “Reasonableness [of a mistake of fact] is an objective test inquiring

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1966 | January 30, 2020   Page 5 of 7
what a reasonable man situated in similar circumstances would do.” Nolan, 863

N.E.2d at 404. Here, the evidence showed that Bruce had previously purchased

a refurbished iPhone for his wife. The phone was in its box and placed in

Bruce’s cabinet. Horein, who had gone to Bruce’s house with his own cell

phone, went into Bruce’s cabinet and took the refurbished iPhone out of the

box. When Horein stated that the phone was his, Bruce told Horein that it was

not and that he had purchased it for his wife. When Bruce approached Horein

to take the phone, Horein “became very angry” and “came at” Bruce. (Tr. Vol.

2 At 18). Horein took out his own cell phone that he had brought with him,

threw it at Bruce, and said “this piece of crap is your phone.” (Tr. Vol. 2 at 18).

Horein then left Bruce’s house with Bruce’s refurbished iPhone and never

returned it. Baker, who had been with Bruce when he purchased the

refurbished iPhone online and was at Bruce’s house the day that Horein was

there, corroborated Bruce’s testimony. The trial court, as finder of fact,

determined that the State had “met its burden of establishing that the elements

of conversion, that Mr. Brett Horein [had] knowingly or intentionally exerted

unauthorized control over the property of Bruce Horein.” (Tr. Vol. 2 at 37).

Horein’s argument is simply a request to reweigh the evidence and reassess the

trial court’s credibility determination, which we will not do. See Drane, 867

N.E.2d at 146. Accordingly, we affirm Horein’s Class A misdemeanor

conversion conviction.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1966 | January 30, 2020   Page 6 of 7
[10]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1966 | January 30, 2020   Page 7 of 7
