Bryce A. Swihart v. State of Indiana , 71 N.E.3d 60 ( 2017 )

FILED
Feb 22 2017, 6:52 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David M. Payne Curtis T. Hill, Jr.
Ryan & Payne Attorney General of Indiana
Marion, Indiana Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryce A. Swihart, February 22, 2017
Appellant-Defendant, Court of Appeals Case No.
27A02-1605-CR-1219
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Dana Kenworthy,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27D02-1504-F6-118
Bailey, Judge.
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Case Summary
[1] Bryce A. Swihart (“Swihart”) was convicted by a jury of two counts of Forgery,
as Level 6 felonies.1 He now appeals.
[2] We affirm.
Issues
[3] Swihart raises two issues for our review:
I. Whether there was sufficient evidence to sustain the
convictions for Forgery; and
II. Whether the trial court erred in determining Swihart’s jail
credit time.
Facts and Procedural History
[4] On the evening of January 13, 2015, Heather Underwood (“Underwood”) was
working as a store manager at Friendly Market on 2nd Street in Marion.
Friendly Market, among other things, provided check cashing services. Swihart
entered Friendly Market and presented Underwood a computer-printed check
for $2,248.33, purporting to have been drawn on an account belonging to Elite
1
Ind. Code § 35-43-5-2(d)(4).
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Motor Sales (“Elite Motors”) in Marion, and bearing the signature of one Scott
Miller. (Ex. 1.)
[5] Because of the value of the check and Friendly Market’s verification
procedures, Underwood took a photograph of the check and Swihart’s
identification card, which stated his place of residence as Peru, Indiana, and
contacted her supervisor to determine whether the check could be honored. An
attempt was made to contact Elite Motors to verify the check, but the attempt
failed because it was outside of Elite Motors’ regular hours. Underwood told
Swihart that he could try to return the following day during regular business
hours.
[6] Swihart returned to Friendly Market during the day on January 14, 2015.
Underwood said that several facets of the transaction raised “red flags” for her:
the check was drawn on a local bank and could have been cashed there without
paying her business’s higher fees; Swihart’s identification stated that he was
from Peru, Indiana, but he was trying to cash the check in another town; the
large amount of the check; Swihart’s agitation; and a conversation Swihart had
with another customer that prompted Swihart to leave and go to a different
store.
[7] Based on the conversation Underwood overheard, she called to another
Friendly Market store on 10th Street in Marion to warn that store’s manager,
Ashokbhai Patel (“Patel”), that Swihart might try to cash the check there.
Swihart eventually arrived at the 10th Street Friendly Market and presented the
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check to Patel for payment. Swihart claimed it was a payroll check, whereas on
the prior day he had told Underwood it was a check he received after selling
Elite Motors a vehicle. The large amount of the check also raised Patel’s
suspicions, and he declined to honor the check.
[8] Eventually, employees of Friendly Market successfully contacted Elite Motors’
owner, Alan Sample (“Sample”), who denied ever having written a check to
Swihart. Sample in turn contacted police.
[9] On January 15, 2015, Marion Police Department Officer Mark Kilgore
(“Officer Kilgore”) was dispatched to the Friendly Market on 2 nd Street to take
a report. Kilgore spoke with both Sample and Underwood, obtained a copy of
the check and Swihart’s identification card, and opened an investigation.
[10] On April 1, 2015, the State charged Swihart with two counts of Forgery.
Swihart was served with the arrest warrant on May 21, 2015, and was also
arrested on a number of charges in other Indiana counties.
[11] A jury trial was conducted on April 5, 2016, at the conclusion of which the jury
found Swihart guilty as charged. The trial court entered judgment of conviction
against Swihart and ordered a pre-sentence investigation.
[12] A sentencing hearing was conducted on May 9, 2016. The trial court sentenced
Swihart to 2 ½ years imprisonment for each count of Forgery, with the
sentences run concurrent with one another but consecutively to a sentence
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imposed in an unrelated case in Madison County. The trial court granted
Swihart jail credit time of 124 days against his sentence in this case.
[13] This appeal ensued.
Discussion and Decision
Sufficiency of the Evidence
[14] Swihart’s first contention on appeal is that there was insufficient evidence to
support the jury’s verdicts. Our standard of review in such cases is well settled.
We consider only the probative evidence and reasonable inferences supporting
the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess
the credibility of witnesses or reweigh evidence. Id. We will affirm the
conviction unless “no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726
N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may
reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens
v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).
[15] Swihart was charged with two counts of Forgery, as Level 6 felonies. To obtain
a conviction on each count, the State was required to prove beyond a
reasonable doubt that Swihart twice, with intent to defraud, uttered a written
instrument, check #5057, purportedly from Elite Motor Sales, made payable to
him for the amount of $2,248.33, in such a manner that it purported to be made
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by the authority of one who did not give authority. See I.C. 35-43-5-2(d)(4);
App’x Vol. 2 at 8.
[16] Swihart’s argument on appeal is an express request that this Court reweigh the
evidence at trial. He directly attacks the credibility of witnesses, asks that we
disregard the evidence that favors the verdict, and argues that we should instead
rely upon the absence of a video recording from the Friendly Market stores. 2
We will not do so.
[17] The evidence that favors the verdict is as follows. Underwood testified that
Swihart, whom she did not know prior to January 13, 2015, twice presented
himself, a computer-printed check drawn on Elite Motors’ account, and his
identification to the 2nd Street Friendly Market location, but that she did not
honor the check. Patel testified that Swihart attempted to do the same thing at
the 10th Street Friendly Market location, and that he, too, did not honor the
check. Underwood and Patel both identified Swihart in open court as having
presented himself at the stores they managed. Further, Sample testified that his
business has never used computer-printed checks and never used the type of
check paper that Swihart presented, that he had never met Swihart, and that he
had never authorized payment to Swihart of any amount of money. A copy of
2
Concerning Underwood’s testimony that regular customers came to the store on January 13, 2015, Swihart
argues, “How on earth can anyone remember numerous other customers who came to the store on that
particular day without any incident or event to trigger recollection of the event. [sic] The most honest answer
would have been, ‘I don’t recall who else came to the store on that particular day.’” (Appellant’s Br. at 14.)
Swihart later characterizes the testimony as “at best, shaky.” (Appellant’s Br. at 15.)
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Swihart’s identification card and the check were entered into evidence. This is
more than sufficient evidence to sustain Swihart’s convictions, and we
accordingly affirm the convictions.3
Credit Time
[18] We turn to Swihart’s other contention on appeal, that the trial court erred when
it did not permit credit for time served prior to trial in one county to be applied
to his sentence in this case.
[19] Our prior case law has held:
When a defendant is incarcerated on multiple unrelated charges
at the same time, a period of confinement may be the result of
more than one offense. Diedrich v. State, 744 N.E.2d 1004, 1005
(Ind. Ct. App. 2001). If a person is incarcerated awaiting trial on
more than one charge and is sentenced to concurrent terms for
the separate crimes, he is entitled to credit time applied against
each separate term. Stephens v. State, 735 N.E.2d 278, 284 (Ind.
Ct. App. 2000), trans. denied. However, “[w]here a defendant is
convicted of multiple offenses and sentenced to consecutive
terms, the jail credit is applied against the aggregate sentence.”
Shane v. State, 716 N.E.2d 391, 400 (Ind. 1999).
Hall v. State, 944 N.E.2d 538, 542 (Ind. Ct. App. 2011), trans. denied.
3
To the extent Swihart relies upon the best evidence rule, as set forth in our Rules of Evidence, we note that
the long-established purpose of the rule is to ensure that the best version of a particular item of evidence is
presented—not that one item of evidence should be disregarded as being less reliable or somehow not as good
as another. Jackson v. State, 274 Ind. 297, 301, 411 N.E.2d 609, 612 (Ind. 1980). In suggesting that the
conviction cannot be sustained with a video recording from store security cameras, Swihart advances the
second, rejected interpretation of the rule. We accordingly do not address this facet of Swihart’s argument.
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[20] Here, the trial court granted Swihart jail credit time of 124 days, representing
the time he was held in jail prior to trial in this cause. Swihart had been
incarcerated for a total of 353 days prior to his sentencing hearing in this case.
However, the difference between the 353 days of total incarceration and the 124
days of credit time awarded in this case was reflected in credit time counted
against his sentence in another case in Madison County; that sentence was run
consecutive to the sentence in this case. Swihart argues that “he was entitled to
pretrial credit time from the time his warrant was served on the current charge,
notwithstanding the fact that some of that credit time was applied on another charge
from Madison County.” (Appellant’s Br. at 16; emphasis added.) That is,
despite his sentences in this case having been run consecutive to the sentence in
his case from Madison County, Swihart requests that we determine that the
trial court erred when it did exactly as prior case law has held: ensured that
“‘jail credit is applied against the aggregate sentence.’” Hall, 944 N.E.2d at 542(quoting Shane v. State, 716 N.E.2d 391, 400 (Ind. 1999)).
[21] Swihart provides no rationale for this beyond suggesting we consult the overall
statutory scheme for credit time, and acknowledges that his argument is
contrary to precedent. Yet we are bound by the decisions of the Indiana
Supreme Court, the decisions of which are binding upon us until either it or the
General Assembly changes the law. Grabill Cabinet Co., Inc. v. Sullivan, 919
N.E.2d 1162, 1167 (Ind. Ct. App. 2010). To the extent Swihart seeks a change
in the law, it is to those institutions that he should address his request.
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[22] Having found no error, we accordingly affirm the trial court’s determination of
jail credit time.
Conclusion
[23] There was sufficient evidence to support Swihart’s conviction. The trial court
did not err in determining jail credit time.
[24] Affirmed.
Najam, J., and May, J., concur.
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