ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS J. OBRIEN STEVE CARTER
COURT OF APPEALS OF INDIANA
OBrien & Dekker Attorney General of Indiana
GRANT H. CARLTON
Deputy Attorney General
MIRTHA McHENRY, )
vs. ) No. 79A02-0303-CR-251
STATE OF INDIANA, )
APPEAL FROM THE TIPPECANOE CIRCUIT COURT
The Honorable Donald L. Daniel, Senior Judge
Cause No. 79C01-0011-CF-46
October 27, 2003
On occasion, the State will miss the mark and fail to present sufficient
evidence to prove a defendants guilt beyond a reasonable doubt. This is
such a case.
Mirtha McHenry appeals her convictions for Forgery,
See footnote a class C felony, and Theft,See footnote
a class D felony. Specifically, McHenry argues that the trial court committed
reversible error when it denied her request to dismiss two jurors for cause.
Moreover, McHenry claims that the trial court erred in admitting into evidence
a surveillance videotape that showed her activities. Finally, McHenry challenges the sufficiency
of the evidence. Because we conclude that the State presented insufficient evidence
to convict McHenry of the charged offenses, we reverse and do not address
the remaining issues.
The facts most favorable to the verdict reveal that McHenry was a teller
at Union Planters Bank in Lafayette. As part of her duties, she
was authorized to provide cash to customers from their bank accounts but could
not dispense more than $3,000 without a supervisors approval. On September 1,
2000, after the bank had closed, McHenry asked lead teller Judy Coffman for
authorization to withdraw $6,500 for customer Charles Landes. She showed Coffman a
signed withdrawal slip as was required by the banks policy. Coffman then
authorized the transaction.
On October 2, 2000, Charles Landes filed an affidavit of forgery, which stated
that an unauthorized withdrawal of $6,500 had been made from his account.
Detective Cecil Johnson of the Lafayette Police Department was assigned to investigate the
unauthorized withdrawal. A bank employee provided Detective Johnson with the actual withdrawal
slip allegedly signed by Landes. Because the withdrawal slip was stamped 4:44
P.M., he viewed a videotape from a bank surveillance camera that was filming
at that time. Detective Johnson noticed that the surveillance video showed no
customers at McHenrys teller window at 4:44 p.m. Because Landess drivers license
number was listed on the withdrawal slip, Detective Johnson contacted the Indiana Bureau
of Motor Vehicles (BMV) to verify that the number listed actually belonged to
Landes. The BMV stated that no record of the number on the
withdrawal slip existed and that Landess license number was different than that found
on the withdrawal slip.
On October 9, 2000, Detective Johnson asked McHenry to come to the Lafayette
Police Department for an interview and McHenry consented. During the interview, McHenry
stated that she filled out the withdrawal slip information but that Landes signed
the document. McHenry stated that the person who signed the slip had
an Indiana drivers license.
Based on this information, the State charged McHenry with forgery and theft.
Police officers arrested McHenry on November 6, 2000. When a jury trial
commenced on February 11, 2003, the State introduced the surveillance tape into evidence
as a business record. McHenry objected, arguing that a different foundation needs
to be laid before this type of registry is admitted into evidence.
Tr. p. 147. The trial court overruled McHenrys objection and allowed the
tape to be played for the jury. Twenty-seven minutes of the videotapefrom
4:24 p.m. to 4:51 p.m.were shown to the jury. This time period
encompassed the 4:44 p.m. time stamped on the back of the Landes withdrawal
slip. The videotape showed that no customers approached McHenrys teller window at
this time. However, on cross-examination Detective Johnson admitted that the teller time
stamp was lagging nearly three minutes behind the videotape timer and that tellers
may stamp slips at times when the bank is less busy. Tr.
p. 156-59. Moreover, a bank employee testified that it was not uncommon
to log transactions sometime after they occurred. Tr. 190-91.
Janice Hainje, the bank branch manager, testified that McHenry made two different inquiries
into Landess account to verify his account balance some days before the forgery
occurred. Appellants App. p. 70-72. However, Hainje admitted that Kelly Reed,
a financial service representative, had also made an inquiry to verify Landess balance
and that customers occasionally would phone the bank and request information about their
accounts. Appellants App. p. 71-72.
At the conclusion of the trial, the jury found McHenry guilty on all
counts. The trial court sentenced McHenry to six years confinement for forgery
and two years for theft. The sentences were to be served concurrently,
for an executed sentence of six years. Furthermore, the trial court ordered
three years of McHenrys sentenced suspended. McHenry now appeals.
DISCUSSION AND DECISION
McHenry claims that the State presented insufficient evidence to convict her of forgery
and theft. Specifically, McHenry contends that the convictions must be set aside
because the State failed to present evidence that she did anything other than
fill out the items on the withdrawal slip. Moreover, McHenry argues that
the State proffered no evidence that McHenry knew that the signature on the
withdrawal slip did not belong to Landes.
In addressing McHenrys claim, we first note that in reviewing the sufficiency of
the evidence, we will not reweigh the evidence or judge the credibility of
witnesses. Haviland v. State, 677 N.E.2d 509, 516 (Ind. 1997). We
look only at the evidence supporting the verdict and the reasonable inferences therefrom.
Id. Moreover, our supreme court has held that the identity of
the defendant may be shown by circumstantial evidence. Joyner v. State, 736
N.E.2d 232, 245 (Ind. 2000).
However, substantive evidence of probative value is necessary to sustain a conviction,
Gray v. State, 786 N.E.2d 804, 807 (Ind. Ct. App. 2003), and speculation
alone is insufficient. Cockrell v. State, 743 N.E.2d 799, 807 (Ind. Ct.
App. 2002). Furthermore, a defendants mere presence at the crime scene, with
the opportunity to commit these crimes, is not a sufficient basis on which
to support a conviction. Oldham v. State, 779 N.E.2d 1162, 1169 (Ind.
Ct. App. 2002).
To convict McHenry of forgery, the State had to show that (1) McHenry;
(2) with intent to defraud; (3) made or uttered a written instrument; (4)
in such a manner that it purported to have been made by another
person. Ind. Code § 35-43-5-2. To convict McHenry of theft, the
State had to show that (1) McHenry; (2) knowingly or intentionally; (3) exerted
unauthorized control ; (4) over property of another person; (5) with intent to
deprive the other person of any part of its value or use.
I.C. § 35-43-4-2.
At trial, only the identity of the person who withdrew the funds was
at issue, as McHenry admitted that a $6,500 transaction occurred. McHenry alleged
that a person had approached her at the tellers window and requested a
$6,500 withdrawal from Landess account. Tr. p. 225. Moreover, McHenry admitted
to filling out the withdrawal slip itself but not the signature line.
Tr. p. 225. No evidence was offered by the State to contradict
Detective Johnson testified that when he viewed the surveillance video and searched for
the time period that would show McHenry receiving the withdrawal slip from Landes,
McHenrys teller window had no customers. Tr. p. 152. However, evidence
demonstrated that the slip may have been received earlier and only stamped at
4:44 p.m. Tr. p. 156-59. While Hainje, the bank branch manager,
testified that McHenry made two different inquiries into Landess account to verify his
account balance some days before the forgery occurred, she also noted that the
inquiries may have been precipitated by a phonecall request. From our view
of the record, we can only conclude that the State merely established that
McHenry had the opportunity to commit the charged offenses. To be sure,
the evidence failed to establish beyond a reasonable doubt that McHenry was guilty
of either forgery or theft. Thus, her convictions must be reversed.
Doing otherwise would render a showing of opportunity alone sufficient for a conviction.
Reversed and remanded with instructions that McHenry be discharged.
NAJAM, J., and BAILEY, J., concur.
Ind. Code § 35-43-5-2.
Footnote: I.C. § 35-43-4-2.
Footnote: We heard oral argument at Vincennes University on October 2,
2003. We thank the students, faculty, and staff for their hospitality and
commend counsel on their able presentations.