recognizing that incarceration “almost always” works a Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016 Page 7 of 11 hardship on others and concluding that the defendant failed to show “special circumstances” because there were other people who could take care of the defendant’s mother while she was incarcerated
How later courts described this case
- recognizing that incarceration “almost always” works a Court of Appeals of Indiana | Memorandum Decision 02A03-1608-CR-1735 | December 22, 2016 Page 7 of 11 hardship on others and concluding that the defendant failed to show “special circumstances” because there were other people who could take care of the defendant’s mother while she was incarcerated
- recognizing that incarceration “almost always” works a hardship on others and concluding that the defendant failed to show “special circumstances” because there were other people who Court of Appeals of Indiana | Memorandum Decision 79A02-1504-CR-279 | March 14, 2016 Page 15 of 19 could take care of the defendant’s mother while she was incarcerated
- recognizing that incarceration almost always works a hardship on others and concluding that defendant failed to show special circumstances because there were other people who could take care of defendant’s mother while defendent was incarcerated
- providing that the relative weight or value assignable to aggravating and mitigating factors is not subject to review for abuse of discretion
Written by the judges who cited it.
The opinion
MAY, Judge,
concurring in result.
Although I agree with the majority's outcome, I respectfully concur only in result with its analysis of the second issue.
The heart of my disagreement is this statement by the majority: "Because knowledge of the falsity of the instrument [is] not an essential element of forgery, it follows that actual falsity is not an essential element." (Op. at 245.) The majority relies on this deduction to hold Final Instruction 6 was an incorrect statement of law because "the State was required to prove something that the statute itself does not require." (Id.) The "something" that the majority asserts the State erroneously was required to prove was an "actual falsity" in the instrument. (Id.)
As a general premise, 1 am opposed to making broad general holdings that are not required by the facts of the case before us. See, e.g., State ex rel. Clemens v. Kern, 215 Ind. 515, 526 , 20 N.E.2d 514, 519 (1939) ("Courts of appeal should exercise care not to discuss questions which are unnecessary to a full and final disposition of the case under consideration."), reh'g denied 215 Ind. 515 , 21 N.E.2d 141 (1939). The majority asserts we are reviewing this alleged instructional error for fundamental error because Benefield failed to object to this instruction on this basis at trial. The majority concludes in Section B of Issue 2 that this alleged error could not have been fundamental because it increased the State's burden of proof. Accordingly, the majority could have decided this issue on the ground Benefield was not prejudiced, and did not need to address the merits of this argument. Neither party raised this argument on appeal, and neither party was prejudiced thereby; there accordingly was no reason for the majority to address it sua sponte.
Nor is the majority's deduction supported by its premise. Wendling noted Indiana law does not require the State to prove a defendant's knowledge of the falsity of the instrument, 465 N.E.2d at 179, and I agree with this premise. However, it does not follow that actual falsity is not an element of forgery. The State cannot obtain a conviction of forgery without demonstrating some "actual falsity." Ind.Code § 35-43-5-2 provides: "A person who, with intent to defraud, makes, utters, or possesses a written instrument in such a manner that it purports to have been made: (1) by another person; (2) at another time; (8) with different provisions; or (4) by authority of one who did not give authority; commits forgery ..." That language indicates the State cannot obtain a conviction unless the instrument is made in a manner that makes it false as to the maker, the time made, a provision therein, or the authority on which it was made, or unless there is a falsity in the manner in which the instrument is uttered or possessed. With no falsity in the making, possession, or uttering, a forgery cannot occur. Accordingly, I believe the majority's broad holding mischaracterizes the State's burden to obtain a conviction of forgery.
Finally, even if the statutory language could be read to relieve the State of any obligation to demonstrate actual falsity, I *250 still would not hold Instruction 6 was "an incorrect statement of law." (Op. at 245.) Instruction 6's definition of "defraud" requires only that a person "make a misrepresentation of an existing material fact." (Id. at 245.) That instruction does not require actual falsity as to the instrument itself. It requires only a misrepresentation as to an "existing material fact"which could include a falsity in the manner in which the instrument is uttered or possessed. As such, the instruction does not conflict with the statute and is not an inaccurate statement of law.
Nevertheless, as I agree with the majority that Final Instruction 6 was not fundamental error, I concur in the majority's result.