Mayberry v. State

CONOVER, Judge.

Defendant-Appellant Lucille Mayberry appeals her conviction for forgery, a class C felony. IND.CODE 35-43-5-2.

We affirm.

Mayberry presents two issues for our review:

1. whether the trial court erred in admitting evidence of approximately twenty forged checks made out to her; and

2. whether her sentence is manifestly unreasonable.

Thelma Myers, age 85, and Lucille May-berry, age 66, live in the same apartment complex in Haubstadt, Indiana. Mayberry helped Myers with household chores such as bringing in the mail, giving her baths, and other chores. In September, 1992, Mayberry cashed a $50 check drawn on Myers’ account at a store. When the check went through Myers’ bank, an employee, who was familiar with Myers, noticed the account was overdrawn and the signature on the check was different from the signature on the bank card. She alerted the police.

When the police interviewed Mayberry, she stated Myers had written the check in question and asked her to cash it just as she had done several times previously. She contended after she cashed it, she had given the money to Myers. While at her apartment, the police found in the bathtub a deposit envelope addressed to Myers’ bank with a sticky note reading “overdrawn $108.71.” She admitted she hid the *246 envelope there so she would not appear to be guilty.

The State charged Mayberry with forgery. After a lengthy discussion at trial, the court permitted the State to introduce twenty-two allegedly forged checks drawn on Myers’ account to show a common scheme or plan. Mayberry objected. The State presented to the jury testimony to show: 1) twenty-one of these checks were made out to Mayberry for amounts from $25 to $250; 2) the signatures on the checks were not that of Myers; 3) Myers denied writing the checks; 4) none of the checks written to Mayberry had been recorded in the check register; 5) Myers’ check register showed a balance of approximately $12,000 when in fact she was overdrawn on the account; and 6) Mayberry had cashed the checks. The jury found Mayberry guilty as charged. The court sentenced her to seven years. She appeals.

Mayberry first contends the trial court erred in admitting, over objection, evidence of the additional forged checks. She argues the court erred in ruling the uncharged misconduct proved a common scheme or plan. Further, she claims it was unfair to charge her with one count of forgery and then require her to defend against twenty-two other allegations of forgery.

Evidence of crimes extrinsic to the crime for which the defendant is on trial is generally inadmissible. Gibbs v. State (1989), Ind., 538 N.E.2d 937, 939 . However, there are certain exceptions to this general rule such as evidence which promotes an inference about the defendant’s intent, motive, purpose, identity, or common scheme or plan. Williams v. State (1986), Ind., 489 N.E.2d 53, 55 . The trial court has broad discretion in ruling upon the relevance of such evidence. Clarkson v. State (1985), Ind., 486 N.E.2d 501, 506 . Evidence of uncharged misconduct may be admissible if it promotes a legitimate inference about some issue in the cause, notwithstanding its incidental revelations of bad character or criminal propensity. Bedgood v. State (1985), Ind., 477 N.E.2d 869, 872-873 . However, because the admission of prior crimes can taint the fairness of the trial, the exception must be cautiously applied. Clark v. State (1989), Ind., 536 N.E.2d 493, 494 .

Admission of evidence for extrinsic offenses which is used to show a common plan or scheme has been permitted for two purposes: 1) to show a preconceived plan that includes the charged crime, and 2) to prove intent, motive, purpose or identity by showing the defendant committed other crimes with identical modus operandi. Lannan v. State (1992), Ind., 600 N.E.2d 1334 ; Gibbs, 538 N.E.2d at 939 .

To prove a preconceived plan, the extrinsic offenses are admissible only if the charged crime and the extrinsic crimes are so related in character, time, and place of commission as to establish some plan which embraced both the prior criminal activity and the charged crime. Malone v. State (1982), Ind., 441 N.E.2d 1339, 1345 . The uncharged crimes must be tangibly connected to the one for which the defendant is on trial. Johnson v. State (1989), Ind. App., 544 N.E.2d 164, 170 , trans. denied.

In forgery cases, evidence of other checks drawn shortly before or shortly after the charged crime and cashed in the same locale has been admitted to prove a preconceived plan or scheme. Vanway v. State (1989), Ind., 541 N.E.2d 523, 527 ; Boney v. State (1986), Ind.App., 498 N.E.2d 67, 69 ; Cooper v. State (1923), 193 Ind. 144 , 139 N.E. 184, 185 .

In the instant case, the evidence of the other forged checks could only be properly admitted if it tended to prove a disputed fact in issue. See Street v. State (1991), Ind.App., 567 N.E.2d 1180, 1185 . The State charged Mayberry with one count of forgery for the $50 check. Thus, the State was required to prove Mayberry’s intent to defraud Myers. IC 35-43-5-2; Eifler v. State (1991), Ind.App., 570 N.E.2d 70, 77 , trans. denied. Mayberry denied she intended to defraud Myers. She told the police she worked for Myers. She claimed Myers had written her the check and had received the money. Myers stated Mayberry never worked for her and denied she had *247 written the check to Myers. Her testimony, however, was rambling and confused, raising the inference the elderly victim’s memory was faulty. As evidence of a common plan or scheme on the part of Mayber-ry to defraud Myers, the State offered the twenty-two forged checks drawn on Myers’ account. Twenty-one of the checks were made payable to Mayberry. They were all dated approximately two weeks apart and none were recorded in Myers’ checkbook register, as noted. The other checks are tangibly related in character, time, and place of commission to the crime charged and demonstrate a pattern which supports a reasonable inference Mayberry had a preconceived plan to defraud Myers of her savings. The probative value of this evidence outweighs its prejudicial effect. Therefore, the trial court did not err in admitting the other checks into evidence.

Mayberry contends her seven year sentence was manifestly unreasonable because the mitigating factors outweigh the aggravating factors. The determination of a sentence rests with the discretion of the trial court. Duvall v. State (1989), Ind., 540 N.E.2d 34, 36 . An appellate court will not alter a sentence authorized by statute unless the sentence is manifestly unreasonable in light of the offender and the offense. Durbin v. State (1989), Ind.App., 547 N.E.2d 1096, 1100 . A sentence is not manifestly unreasonable unless no reasonable person could consider the sentence appropriate. Reichard v. State (1987), Ind., 510 N.E.2d 163, 167 .

The trial court set out a statement of the mitigating and aggravating factors in this case. IC 35-38-1-3. In aggravation, the court found the age of victim (85 years old), the lack of remorse of the defendant, defendant’s varying accounts of events, the pattern of conduct by which defendant took several thousand dollars of the victim’s savings, and the harassing phone calls made to the victim. In mitigation, the court considered the defendant’s age, health problems, and absence of prior convictions.

The presumptive sentence for a class C felony is four years, with not more than four years added for aggravating circumstances. IC 35-50-2-6. The trial court enhanced the presumptive sentence by three years, which is within statutory limits. To enhance a sentence, the trial court need only to state one aggravating factor. Duvall, 540 N.E.2d at 36 . A trial court properly may consider evidence of prior criminal conduct which has not been reduced to conviction and evidence of prior uncharged crimes. Hensley v. State (1991), Ind.App., 573 N.E.2d 913, 917 , trans. denied. While Mayberry may feel the mitigating factors entitle her to a shorter sentence, we do not find the sentence manifestly unreasonable in light of the legitimate aggravating factors. The trial court court did not abuse its discretion in sentencing Mayberry.

Affirmed.

SULLIVAN, J., concurs in result with separate opinion.

MILLER, J., concurs in part and dissents in part with separate opinion.