James Christian Warner v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
Feb 17 2014, 7:09 am
regarded as precedent or cited before any
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 A. SHOAF GREGORY F. ZOELLER
Columbus, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES CHRISTIAN WARNER, )
)
Appellant-Defendant, )
)
vs. ) No. 03A01-1305-CR-212
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen R. Heimann, Judge
Cause No. 03C01-1210-FC-5410
February 17, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
James Christian Warner (“Warner”) appeals from his conviction after a jury trial of
attempted inmate fraud1 as a Class C felony, contending that there is insufficient evidence
to support his conviction.
We affirm.
FACTS AND PROCEDURAL HISTORY
Warner wrote a letter to Ruby Dilk (“Ruby”) and a letter to Priscilla Young
(“Priscilla”) from the Bartholomew County Jail where Warner was an inmate. Warner
addressed the letters to the Asbury United Methodist Church, of which both women were
members, and where the services for their recently deceased husbands were being prepared.
In Warner’s letter to Ruby, postmarked September 14, 2012, he acknowledged the
death of her husband, Raymond, and claimed that Raymond owed Warner $200.00 for
work that he had performed for Raymond. Warner asked Ruby to send a money order to
him in jail for that amount. Raymond had not known Warner, had never seen him before,
nor had Warner ever done work for Raymond. Raymond, who was eighty-nine years old
and legally blind prior to his death on September 11, 2012, had not worked for five years.
All of the work that was completed at Raymond and Ruby’s house was done by one
particular handyman, who was not Warner. Raymond’s obituary, which appeared in The
Republic newspaper on September 13, 2012, gave the name and address of both Ruby and
the Asbury United Methodist Church.
1
See Ind. Code § 35-43-5-20 (inmate fraud); Ind. Code § 35-41-5-1 (attempt).
2
Three days later, in a letter to Priscilla, postmarked September 17, 2012, Warner
acknowledged the death of Priscilla’s husband, Jack, who had passed away on September
15, 2012. Warner represented in the letter that Jack had been his chemistry teacher.
Warner further described Jack as a good friend who had never let Warner down. Warner
told Priscilla that his girlfriend was upset because she could not afford to send him a money
order to buy long underwear to fend off the cold. Warner claimed not to have enough
money to write a letter to his girlfriend, but explained that a roommate had given him a
stamp to write to Priscilla.
Warner had not been one of Jack’s chemistry students, had attended a different high
school, and had never taken chemistry classes from Jack. Priscilla did not know Warner,
and to her knowledge, since Priscilla knew all of Jack’s friends, Jack did not know Warner.
After Priscilla read the letter, she felt as if Warner wanted her to send him money in jail
because of his reference to a money order. Jack’s obituary appeared in The Republic on
September 16, 2012, and specifically stated that Jack had been a chemistry teacher at
Columbus East High School, gave Priscilla’s name, and the name of Asbury United
Methodist Church.
Once the letters were received at Asbury United Methodist Church, they were
opened by Paul Johnson (“Johnson”), who was employed in administration at the church.
Johnson, who was in the process of planning the services of the two men, opened the letters
because he did not want to concern or trouble the widows of the two men. Johnson thought
that it was unusual that the letters to the two women were from the same inmate, that
Ruby’s requested money outright, and that Priscilla’s indirectly requested that support be
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provided to him by her. The timing of the receipt of the letters also concerned Johnson
since they were received within four days of each other, and within a day after the
appearance of the obituary in the newspaper. Johnson contacted Detective Tom Foust
(“Detective Foust”), with the Columbus Police Department.
Detective Foust gave the letters to Detective Kevin Abner (“Detective Abner”), who
was employed with the Bartholomew County Sheriff’s Office. After reading the letters
from Warner, Detective Abner believed that Warner was seeking money from the women.
In the course of his investigation, Detective Abner obtained Warner’s school and college
records, confirming that Warner was never a student of Jack’s. Detective Abner went to
the Bartholomew County Jail to interview Warner about the letters. Warner admitted to
Detective Abner that he had written the letters, but refused to explain his claimed
connection to Raymond and Jack. Detective Abner confirmed with Warner, and Warner
admitted, that inmates at the jail received The Republic newspaper and that Warner read
the obituaries in particular.
The State charged Warner with two counts of inmate fraud. The jury found Warner
guilty of committing inmate fraud as to Ruby and attempted inmate fraud as to Priscilla.
The trial court sentenced Warner to two eight-year executed sentences to be served
concurrently. Warner now appeals his conviction for attempted inmate fraud.
DISCUSSION AND DECISION
Warner appeals challenging the sufficiency of the evidence supporting his
conviction. Our standard of review for sufficiency claims is well settled. When we review
a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the
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credibility of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct. App. 2009)
(citing Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003)). We look only to the probative
evidence supporting the judgment and the reasonable inferences therein to determine
whether a reasonable trier of fact could conclude the defendant was guilty beyond a
reasonable doubt. Id. If there is substantial evidence of probative value to support the
conviction, it will not be set aside. Id. It is the function of the trier of fact to resolve
conflicts of testimony and to determine the weight of the evidence and the credibility of
the witnesses. Yowler v. State, 894 N.E.2d 1000, 1002 (Ind. Ct. App. 2008).
In order to establish that Warner committed the crime of attempted inmate fraud of
Priscilla, the State was required to prove beyond a reasonable doubt that Warner, who was
confined in a county jail, and with the intent to obtain money or other property from a
person who is not an inmate, knowingly or intentionally makes a misrepresentation to one
who is not an inmate and obtains or attempts to obtain money or other property from the
person who is not an inmate. Ind. Code § 35-43-5-20. Warner contends that because he
did not make a direct request for money, there was reasonable doubt that he knowingly or
intentionally committed the offense against Priscilla.
Although Warner did not make a direct solicitation of money from Priscilla, the
content of the letter was such that a jury could infer that Warner intended to solicit money
from her. Warner lied to Priscilla, who was recently widowed, about being a student of
Jack’s and a “true friend” of his. Appellant’s App. at 42. Warner had not known Jack and
had not been his student. Warner wrote about how upset his girlfriend was that she did not
have the means to send a money order to Warner so that he could buy long underwear. In
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that seven-sentence letter, Warner also stated that he could not afford to write to his
girlfriend, but wrote to Priscilla with the help of a fellow inmate who had supplied him
with the necessary postage. Priscilla testified that, after reading the letter, she felt like
Warner wanted her to send him money in jail. Johnson and Detective Faust testified that
they believed Warner sought money from both women. Additionally, when Detective
Faust questioned Warner in jail, Warner refused to explain how he knew Raymond or Jack.
The jury was entitled to discount Warner’s testimony at trial in which he attempted to
explain his intent and describe how he knew the two men. “We are also mindful that the
jury is the trier of fact and is entitled to determine which version of the incident to credit.”
Duren v. State, 720 N.E.2d 1198, 1201 (Ind. Ct. App. 1999) (citing Barton v. State, 490
N.E.2d 317, 318 (Ind. 1986)).
“We will affirm if there is probative evidence from which a reasonable jury could
have found the defendant guilty beyond a reasonable doubt.” Gonzalez v. State, 908 N.E.2d
338, 340 (Ind. Ct. App. 2009) (citing Pelley v. State, 901 N.E.2d 494, 500 (Ind. 2009)).
“Circumstantial evidence alone may support a conviction if inferences may reasonably be
drawn that allowed the factfinder to find the defendant guilty beyond a reasonable doubt.”
Id. The inferences here are sufficient to support Warner’s conviction for attempted inmate
fraud.
We likewise reject Warner’s claim that the jury verdicts in this case are inconsistent
or that an inconsistent-verdict argument can be used to support his claim of insufficient
evidence. “The evaluation of whether a conviction is supported by sufficient evidence is
independent from and irrelevant to the assessment of whether two verdicts are
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contradictory and irreconcilable.” Beattie v. State, 924 N.E.2d 643, 648 (Ind. 2010). Not
only is Beattie inapplicable to Warner’s claim, even if it were, the jury’s verdicts were not
inconsistent or irreconcilable. Warner was charged with two separate offenses against two
different women and was found guilty of both offenses. There is nothing inconsistent in
the jury’s decision to find Warner guilty of attempting the commission of the offense
against one victim, and guilty of the actual offense against the other.
Warner suggests that the trial court committed an instructional error in the
instructions given to the jury regarding attempted inmate fraud. This issue has been waived
because Warner failed to preserve the issue for review at trial and has failed to present
cogent argument on appeal. Nonetheless, we find no error here. The State correctly
observes that the statute defining the offense of inmate fraud does not require that a direct
solicitation of money be made in order to have committed the offense. Rather, there must
be knowing or intentional misrepresentations made in order to obtain or attempt to obtain
money or other property. The jurors used the evidence of Warner’s direct solicitation of
money from Ruby and the inference that Warner was seeking money from Priscilla to
arrive at the two different guilty verdicts. The jury could have found Warner guilty of two
counts of actual inmate fraud. Warner has failed to establish reversible error on the basis
of insufficient evidence.
Affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
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