McHenry v. State

Attorney for Appellant Attorneys for Appellee

Thomas J. O'Brien Steve Carter

O'Brien & Dekker Attorney General of Indiana

Lafayette, Indiana

Grant H. Carlton

Deputy Attorney General

Indianapolis, Indiana

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__

In the

Indiana Supreme Court

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No. 79S02-0501-CR-001

Mirtha McHenry,

Appellant (Defendant below),

v.

State of Indiana,

Appellees (Plaintiff below).

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Appeal from the Tippecanoe Circuit Court, No. 79C01-0011-CF-46

The Honorable Donald L. Daniel, Judge

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On Petition To Transfer from the Indiana Court of Appeals, No. 79A02-0303-

CR-251

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January 6, 2005

Dickson, Justice.

Following a jury trial, the defendant, Mirtha McHenry, a bank teller,

was convicted of forgery, a class C felony, and theft, a class D felony, as

a result of her actions relating to an unauthorized withdrawal of $6,500

from the account of a bank customer. Concluding that the evidence was

insufficient to establish her guilt of either crime, the Court of Appeals

reversed the convictions and remanded with instructions that she be

discharged.[1] We grant transfer and affirm the trial court.[2]

In her appeal from the convictions, the defendant alleges three

grounds for reversal: (1) insufficient evidence; (2) refusal to strike two

jurors for cause; and (3) erroneous admission of surveillance videotape.

1. Sufficiency of Evidence

The defendant contends that neither of her convictions were supported

by sufficient evidence. Upon a challenge to the sufficiency of evidence to

support a conviction, a reviewing court does not reweigh the evidence or

judge the credibility of the witnesses, and respects "the jury's exclusive

province to weigh conflicting evidence."[3] We have often emphasized that

appellate courts must consider only the probative evidence and reasonable

inferences supporting the verdict.[4] Expressed another way, we have

stated that appellate courts must 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."[5]

Evidence at her jury trial established that the defendant, a bank

teller, withdrew $6,500 from the account of Charles Landes. The defendant

testified that someone had come to her wanting to make this withdrawal,

that she had filled in the withdrawal slip, and that she had the customer

sign it and gave him the money. Upon receiving his bank statement and

discovering a $6,500 withdrawal from his account, Landes immediately

reported the error to the bank and signed an affidavit of forgery stating

that the signature on the withdrawal slip was not his and that he did not

receive any of the proceeds. The withdrawal slip was time-stamped 4:44

p.m. The bank's videotape showed no one at the defendant's teller window

when the transaction occurred. Bank records also disclosed that the

defendant had accessed and viewed this customer's account records twice

during the two weeks before the withdrawal.

Although reciting that "in reviewing the sufficiency of the evidence,

we will not reweigh the evidence or judge the credibility of witnesses,"[6]

the Court of Appeals reversed the convictions, speculating that the

withdrawal slip "may have been received earlier and only stamped at 4:44

p.m." and that the defendant's prior inquiries into the customer's account

balance "may have been precipitated by a phone call request."[7]

In reversing the jury's verdict, the Court of Appeals failed to

restrict its consideration to only the evidence and reasonable inferences

favorable to the trial court's verdict, but instead reweighed the evidence,

improperly substituting its own judgment for that of the jury. While the

jury could have drawn the same inferences as the Court of Appeals, they did

not. They returned a unanimous verdict of guilt on each count.

The defendant urges that the State failed to present evidence that she

intended to defraud the customer or the bank or that she took the money.

The State responds (and the defendant concedes) that intent to defraud may

be proven by circumstantial evidence,[8] and the State argues that the

defendant acknowledged accessing the customer's account and performing the

transaction that removed $6,500 from the account—money that the customer

did not receive. And the videotape enabled the jury to infer that there

was no customer at the defendant's teller window when the withdrawal was

made.

Finding that 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, we conclude that the evidence

was sufficient to support the judgment.

2. Failure to Exclude Jurors for Cause

The defendant contends that the trial court committed reversible

error in allowing two jurors who were depositors in the bank to serve as

jurors. During jury selection, when two jurors stated that they had

accounts at the bank, the defendant challenged them for cause, alleging

they had a personal interest. The trial court denied her challenges, and

the defendant thereafter exhausted her peremptory challenges. She argues

that these two jurors should have been excused because they each had a

personal interest in the victim of her alleged victim crimes. When the

defendant challenged these jurors for cause, the trial court questioned

each about their status as account holders and the possible impact of the

bank's loss upon them. Each juror assured the court that this would

neither influence them as jurors nor affect their personal business with

the bank.

The defendant acknowledges that whether to excuse a juror for cause

rests within the sound discretion of the trial court.[9] She urges,

however, that the financial interests of these jurors as bank depositors

raised a presumption of implied bias, citing Woolston v. State.[10]

Woolston involved a juror who had a close relationship to the State

Police due to his wife's employment. The juror was familiar with three of

the officers who were to testify for the State and knew that his wife had

worked on some of the evidence in the case. Noting that a challenge for

cause had been held to exist in cases where a juror's spouse had been hired

for future employment by the prosecutor and in another where the juror's

wife was a second cousin to a member of the prosecutor's staff, Woolston

found that, based on the juror's relationship to the State, it was error

for the trial court to deny the challenge for cause.[11]

In the present case, the jurors were challenged not for their

relationship with the State but for their status as depositors in the bank

where the alleged crimes occurred. The trial court considered the

challenge, questioned the jurors, and then denied the challenge. We

decline to find any abuse of discretion in this ruling.

3. Surveillance Videotape

The defendant also contends that the trial court committed reversible

error in admitting the bank's surveillance video. The video shows that no

person was at the defendant's teller window at the time she entered the

questioned transaction. The defendant's objection at trial was that the

videotape was not a business record and that there was an inadequate

foundation, the particulars of which were not specified. On appeal, the

defendant does not present argument as to the business record issue but

rather argues generally that because the state did not present information

to support the reliability of the surveillance tape other than the

affidavit of a records custodian, it failed to lay a proper foundation for

the admission of the video.

The parties agree that under a "silent witness" theory, videotapes may

be admitted as substantive evidence, but "there must be a strong showing of

authenticity and competency" and that when automatic cameras are involved,

"there should be evidence as to how and when the camera was loaded, how

frequently the camera was activated, when the photographs were taken, and

the processing and changing of custody of the film after its removal from

the camera."[12]

The State argues that witness testimony established the videotape's

authenticity. The bank manager removed the videotape, and a police

detective checked it to assure that it was the tape covering the date in

question. The detective then watched the tape to match the transactions

and customers' account numbers with the representations on the videotape.

In addition, the bank's custodian of records verified by affidavit that the

tape was a regularly conducted activity of the bank and that she had

examined the records to verify its trustworthiness.

Rulings on the admission of evidence are subject to appellate review

for abuse of discretion.[13] We are not persuaded that the trial court

abused its discretion in admitting the videotape.

Conclusion

We grant transfer and affirm the judgment of the trial court.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

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[1] McHenry v. State, 797 N.E.2d 852, 855 (Ind. Ct. App. 2003).

[2] As an experiment, this opinion departs from the author's usual

style of citation and footnote use. Cf. Indiana Appellate Rule 22.

Generally adhering to the footnote recommendations of Bryan Garner, The

Winning Brief, 139-47 (2d ed. 2004), all citations unessential to the text

are placed in footnotes, and substantive matter that otherwise might appear

in footnotes is included in the text. This revised format does not meet

with universal approval. See Richard A. Posner, Against Footnotes, 38

Court. Rev. 24 (Summer 2001). The public, the bench, and the bar are

invited to comment to the Supreme Court Administrator, 315 State House,

Indianapolis, IN 46204.

[3] Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind. 2001).

[4] Bald v. State, 766 N.E.2d 1170, 1173 (Ind. 2002); Raines v. State,

514 N.E.2d 298, 299 (Ind. 1987); Loyd v. State, 272 Ind. 404, 407, 398

N.E.2d 1260, 1264 (Ind. 1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231,

66 L.Ed.2d 105.

[5] Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000).

[6] McHenry, 797 N.E.2d at 854.

[7] Id. at 855 (emphasis added).

[8] Wendling v. State, 465 N.E.2d 169 (Ind. 1984).

[9] Wisehart v. State, 693 N.E.2d 23, 55 (Ind. 1998).

[10] 453 N.E.2d 965, 968 (Ind. 1983).

[11] Id.

[12] Brief of Appellant at 15; Brief of Appellee at 7. See Edward v.

State, 762 N.E.2d 128, 136 (Ind. Ct. App. 2002).

[13] McManus v. State, 814 N.E.2d 253, 264 (Ind. 2004); Janes v.

State, 780 N.E.2d 373, 376 (Ind. 2002).