Michael Wayne Wise, Sr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED

May 13 2016, 8:25 am

Pursuant to Ind. Appellate Rule 65(D), CLERK

this Memorandum Decision shall not be Indiana Supreme Court

Court of Appeals

regarded as precedent or cited before any 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

James D. Crum Gregory F. Zoeller

Coots, Henke & Wheeler, P.C. Attorney General of Indiana

Carmel, Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Michael Wayne Wise, Sr., May 13, 2016

Appellant-Defendant, Court of Appeals Case No.

29A02-1509-CR-1377

v. Appeal from the Hamilton

Superior Court

State of Indiana, The Honorable Steven R. Nation,

Appellee-Plaintiff. Judge

Trial Court Cause No.

29D01-1412-FC-9933

Robb, Judge.

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Case Summary and Issues

[1] Following a bifurcated trial, Michael Wayne Wise, Sr., was convicted of check

fraud as a Class C felony and found to be an habitual offender. Wise appeals,

raising two issues, which we restate as (1) whether the trial court abused its

discretion by admitting evidence in violation of Indiana Evidence Rule 404(b),

and (2) whether the evidence is sufficient to support his conviction for check

fraud. Concluding the trial court did not abuse its discretion and the evidence is

sufficient, we affirm.

Facts and Procedural History

[2] In 2014, Wise operated an auto repair business in Noblesville, Indiana. In

March of that year, the Noblesville Police Department began investigating

Wise’s business for check fraud after he passed a number of bad checks to

Prime Automotive Warehouse, Inc. (“Prime”). Wise ordered auto parts from

Prime on March 14 and 17 and received the items in separate shipments on

March 17 and 18. He paid for the merchandise with checks linked to an

Ameriana Bank (“Ameriana”) account that had been closed since May 23,

2012. When the checks were subsequently dishonored, Prime contacted the

Noblesville Police Department.

[3] On April 1, Detective Timothy Hendricks obtained a search warrant for Wise’s

property, which authorized officers to seize (1) any Ameriana checks,

checkbooks, or bank statements issued to “Michael Wise” for account number

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0527688099, and (2) any of the items listed on the invoices detailing the

deliveries made on March 17 and 18. State’s Exhibit 1. 1 During the search of

Wise’s property, officers recovered “between 90 to 95 percent” of the almost

$3,000 in merchandise delivered on March 17 and 18,2 as well as two sets of

Ameriana checks. Transcript at 162-63. Both sets of checks were issued for

account number 0527688099, but they listed different addresses. One set of

checks was issued to “Michael Wayne Wise” and listed an address in

Greenfield, Indiana. State’s Ex. 19. Another set was issued to “Main Street

Automotive d/b/a Michael Wise” and listed the Noblesville address where

Wise had been living since November 2013. State’s Ex. 9; tr. at 242. Wise was

not present when the officers searched his property.

[4] On April 7, Detective Hendricks returned to Wise’s property in an attempt to

locate Wise. Detective Hendricks entered the garage on the property and

encountered a man who identified himself as “Josh Dawson.” Tr. at 167.

When Detective Hendricks told the man he was looking for Wise, the man said

Wise was unavailable but provided a phone number where Wise could be

reached. Detective Hendricks next walked to the residence on the property and

knocked on the door. A woman answered, and after speaking with her,

Detective Hendricks decided to go back to the garage, which then appeared

1

Prior to obtaining the search warrant, Detective Hendricks acquired bank records from Ameriana showing

Wise used Ameriana checks, account number 0527688099, to pay for the items he ordered from Prime in

March 2014. Tr. at 154.

2

Some of the other items were recovered from a pawnshop in Lawrence, Indiana.

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empty. Detective Hendricks called out Wise’s name, but no one answered. He

then noticed the trunk of one of the vehicles parked inside the garage was

slightly ajar and discovered the man who identified himself as “Josh” hiding

inside. “Josh” was actually Wise.

[5] A week later, on April 14, Wise opened a business checking account with PNC

Bank (“PNC”) under the name “Michael Wise Sr. d/b/a Auto Smart & All Pro

Towing.” State’s Ex. 20. By June, the account was overdrawn and closed. In

the interim, Wise opened a business account with O’Reilly Auto Parts

(“O’Reilly”), which allowed Wise to order parts for delivery. He paid for each

order upon delivery because he did not qualify for a line of credit. From June

to July, Wise wrote six checks from the closed PNC account to pay for

deliveries made by O’Reilly: (1) $143.88 on June 20, (2) $193.50 on June 27, (3)

$27.10 on June 30, (4) $354.80 on June 30, (5) $332.10 on July 1, and (6)

$211.97 on July 3. It is unclear from the record when exactly the PNC account

was closed, but each of the six checks Wise issued to O’Reilly was returned

because the account was closed.3

[6] In early July, an O’Reilly manager visited Wise’s business to confront Wise

about the dishonored checks. He told Wise he would turn the matter over to

the prosecutor’s office if Wise did not pay by the end of the month. Wise

3

The PNC statement for May 1 to May 30 shows $241.89 in deposits, $106.45 in deductions, $72.00 in

returned items fees, and an ending balance of $0.00. The statement for May 31 to August 18 shows no

deposits, deductions, or fees and an ending balance of $0.00.

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immediately paid for the $27.10 order, plus a $20.00 fee, but he never paid for

the other deliveries. The manager returned to Wise’s business three times

during the month of July, but he never saw Wise again and eventually filed a

bad check affidavit with the prosecutor’s office.

[7] Finally, in November, Wise ordered $1,511.57 in oil products from Walker Oil,

Inc. (“Walker”) and paid for the order with another check from the closed PNC

account. When the check was subsequently dishonored, Walker was unable to

reach Wise with the phone numbers he provided and ultimately contacted the

prosecutor’s office.

[8] Relevant here, the State charged Wise with check fraud, a Class D felony, and

check fraud with a prior conviction, a Class C felony, for the checks he issued

to O’Reilly in June. The State also alleged he was an habitual offender. Prior

to trial, the State filed its notice of intent to offer evidence under Indiana

Evidence Rule 404(b), which the trial court permitted as to the checks Wise

issued to Prime in March, to O’Reilly in July, and to Walker in November. 4 A

bifurcated trial was held in July 2015. When the State offered evidence of

Wise’s other bad checks, the trial court admitted the evidence over defense

objection. At the conclusion of the first phase of the trial, a jury found Wise

guilty of check fraud as a Class D felony. Wise waived his right to a jury trial

for the second phase. The trial court found him to be an habitual offender and

4

The State charged each of these occurrences under separate cause numbers.

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guilty of check fraud as a Class C felony. The trial court merged the Class D

felony and entered judgment of conviction on the Class C felony and the

habitual offender enhancement. The trial court ordered Wise to serve eight

years in the Department of Correction, enhanced by an additional eight years,

for an aggregate sentence of sixteen years executed in the Department of

Correction. This appeal followed.

Discussion and Decision

I. Admission of Evidence

A. Standard of Review

[9] A trial court has broad discretion in ruling on the admissibility of evidence.

Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). We review its rulings for

abuse of discretion, which occurs only if the decision was clearly against the

logic and effect of the facts and circumstances. Id. We will not reverse the trial

court’s decision to admit evidence if the decision is sustainable on any ground.

Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002).

B. Crimes, Wrongs, or Other Acts

[10] Wise contends the trial court erred in admitting evidence of the checks he

issued to Prime in March and Walker in November. He argues the evidence

should have been excluded under Evidence Rule 404(b) because it shows

nothing more than his “occasional propensity to write bad checks.” Appellant’s

Brief at 10. “Rule 404(b) is designed to prevent the jury from making the

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forbidden inference that prior wrongful conduct suggests present guilt.”

Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013) (citation and internal

quotation marks omitted). Evidence Rule 404(b)(1) provides, “Evidence of a

crime, wrong, or other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in accordance with

the character.” This type of evidence may be admissible for other purposes,

however, “such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Ind. Evidence

Rule 404(b)(2). These exceptions “apply to evidence of acts committed both

before and after the crime charged.” Hazelwood v. State, 609 N.E.2d 10, 16 (Ind.

Ct. App. 1993), trans. denied; see also Southern v. State, 878 N.E.2d 315, 321-22

(Ind. Ct. App. 2007) (noting the wording of Rule 404(b) “does not suggest that

it only applies to prior bad acts and not subsequent ones”), trans. denied. In

assessing the admissibility of Rule 404(b) evidence, the trial court must (1)

determine that the evidence of other crimes, wrongs, or acts is relevant to a

matter at issue other than the defendant’s propensity to commit the charged

offense, and (2) balance the probative value of the evidence against its

prejudicial effect under Evidence Rule 403. Bishop v. State, 40 N.E.3d 935, 951

(Ind. Ct. App. 2015), trans. denied.

[11] Evidence may be admitted to prove intent “when a defendant goes beyond

merely denying the charged culpability and alleges a particular contrary intent,

whether in opening statement, by cross-examination of the State’s witnesses, or

by presentation in defendant’s own case-in-chief.” Lafayette v. State, 917 N.E.2d

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660, 663 (Ind. 2009). Intent is a mental state; “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.” Germaine v. State,

718 N.E.2d 1125, 1132 (Ind. Ct. App. 1999), trans. denied. “An intent to

defraud involves an intent to deceive and thereby work a reliance and injury.”

Williams v. State, 892 N.E.2d 666, 671 (Ind. Ct. App. 2008) (citation omitted),

trans. denied.

[12] At trial, defense counsel conceded Wise wrote bad checks and knew the

accounts were closed but argued Wise never intended to defraud O’Reilly. See

Tr. at 149-50. Defense counsel maintained Wise was simply not a good

businessman. Because Wise specifically alleged he did not intend to defraud

O’Reilly, we conclude the checks Wise issued to Prime and Walker were

properly admitted to prove intent. See Lafayette, 917 N.E.2d at 663. Wise

issued two checks totaling $2,735.21 from the Ameriana account that had been

closed for almost two years.5 Two weeks after the police executed a search

warrant to investigate Wise for passing bad checks from the closed Ameriana

account, Wise opened a new checking account with PNC under a different

name. The checks linked to the Ameriana account indicated the name of

5

We would also note one of the sets of Ameriana checks found on Wise’s property listed his Noblesville

address—an address he established over a year after the Ameriana account was closed.

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Wise’s business was “Main Street Automotive,” State’s Ex. 9, but he opened

the PNC account under the name “Auto Smart & All Pro Towing,” State’s Ex.

20. Thereafter, Wise deposited less than $250.00 into the PNC account but

issued six checks to O’Reilly in a two-week period, totaling $1,263.35. Each of

those checks was returned because the PNC account was closed. Several

months later, Wise again passed a check from the closed PNC account to pay

for $1,511.57 in oil products from Walker.

[13] Evidence of these transactions strongly suggests Wise was not merely

floundering in his attempt to run a business but actively engaged in a scheme to

obtain tools and parts by passing bad checks. And given the probative value of

this evidence, we cannot conclude the checks should have been excluded as

unduly prejudicial. See Hazelwood, 609 N.E.2d at 16 (“Despite extrinsic

evidence’s tendency to show bad character or criminal propensity, it is

admissible so long as it makes the existence of an element of the crime charged

more probable than it would be without the evidence.”). The trial court did not

abuse its discretion by admitting evidence of the checks Wise issued to Prime

and Walker because Wise placed his intent in issue, and the transactions tend to

prove intent.

II. Sufficiency of Evidence

A. Standard of Review

[14] Wise also contends the evidence is insufficient to support his conviction for

check fraud. In reviewing the sufficiency of the evidence, we consider only the

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probative evidence and reasonable inferences that support the verdict. Drane v.

State, 867 N.E.2d 144, 146 (Ind. 2007). We consider conflicting evidence most

favorably to the trial court’s ruling and will affirm the conviction unless no

reasonable fact-finder could find the elements of the offense proven beyond a

reasonable doubt. Id. “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.” Id.

B. Check Fraud

[15] A person commits check fraud as a Class D felony when he knowingly obtains

property, 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(b)(1)(A) (1998). The offense is a Class C felony if the person

has a prior unrelated conviction for check fraud. Id.

[16] During trial, the State presented evidence of Wise’s transactions with Prime,

O’Reilly, and Walker, occurring between March and November of 2014, but

only the checks he issued to O’Reilly in June provided the basis for the charge

in this case. Wise argues the evidence is insufficient to support his conviction

for check fraud because there was no evidence showing he acted with intent to

defraud. He contends the State proved check deception at best because “[t]he

inference that could be drawn from the evidence was simply that [he] was a

poor business man.” Appellant’s Br. at 7; see also Ind. Code § 35-43-5-5(a)

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(2003) (providing a person who knowingly issues a check for the payment of or

to acquire money or other property, knowing that it will not be paid or honored

by the credit institution upon presentment in the usual course of business,

commits check deception, a Class A misdemeanor).

[17] Although the check fraud statute does not define “defraud,” we have previously

looked to the Indiana Uniform Securities Act, which defines “defraud” as “a

misrepresentation of a material fact, a promise or representation or prediction

not made honestly or in good faith, or the failure to disclose a material fact

necessary in order to make the statements made, in the light of the

circumstances under which they were made, not misleading.” Childers v. State,

813 N.E.2d 432, 435 (Ind. Ct. App. 2004) (quoting Ind. Code § 23-2-1-1(d)

(2000), accord Ind. Code § 23-19-1-2(9)). In addition, we have stated intent to

defraud may be proven by circumstantial evidence and presumed from the

general conduct of the defendant. Williams, 892 N.E.2d at 671.

[18] First, Wise issued two checks from the Ameriana account that had been closed

for almost two years. These transactions gave rise to the search warrant for

Wise’s property, and when the police attempted to speak with Wise after the

search, he lied about his name and hid. A week later, Wise opened a new

account with PNC under a different business name. He deposited less than

$250.00 into the PNC account during the month of May and made no deposits

in the following months. Nonetheless, Wise issued six PNC checks to O’Reilly

in a two-week period, four of which are dated in June, for a total of $719.28: (1)

$143.88 on June 20, (2) $193.50 on June 27, (3) $27.10 on June 30, and (4)

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$354.80 on June 30. All of the checks were returned because the PNC account

was closed. Wise paid for the $27.10 order when the O’Reilly manager

confronted him in early July, but the manager could not locate Wise after this

and never received payment for the other deliveries. Several months later Wise

issued yet another check from the closed PNC account—this time to Walker,

for $1,511.57. When this check was dishonored, Walker was unable to reach

Wise with the phone numbers he provided.

[19] Each time Wise paid for an order with a check, he implicitly represented the

check would be honored, notwithstanding the fact that his bank accounts were

either empty or closed during most of the period in question. See Tr. at 149-50

(defense counsel conceding Wise knew the accounts were closed). When the

checks were dishonored, Wise was evasive and continued to write bad checks.

It is reasonable to infer from the nature of these transactions and Wise’s general

conduct that he intended to deceive, see Williams, 892 N.E.2d at 671, and made

representations to O’Reilly in bad faith, see Childers, 813 N.E.2d at 435.

Accordingly, we conclude the evidence is sufficient to support Wise’s

conviction for check fraud.

Conclusion

[20] The trial court did not abuse its discretion by admitting evidence under Indiana

Evidence Rule 404(b), and the evidence is sufficient to support Wise’s

conviction for check fraud. We therefore affirm.

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[21] Affirmed.

Barnes, J., and Altice, J., concur.

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