Elnesto Ray Valle v. State of Indiana , 989 N.E.2d 1268 ( 2013 )

Jun 25 2013, 6:06 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CRAIG PERSINGER GREGORY F. ZOELLER
Marion, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ELNESTO RAY VALLE, )
)
Appellant-Defendant, )
)
vs. ) No. 27A02-1209-CR-772
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE GRANT CIRCUIT COURT
The Honorable Mark E. Spitzer, Judge
Cause No. 27C01-1205-FC-86
June 25, 2013
OPINION - FOR PUBLICATION
BRADFORD, Judge
As a result of two misbegotten schemes to bail himself out of jail, Appellant-
Defendant Elnesto Ray Valle was charged with and convicted of two counts of Class C
felony forgery and one count each of Class D felony attempted theft, Class C felony inmate
fraud, and Class A misdemeanor resisting law enforcement. The trial court sentenced Valle
to an aggregate term of sixteen years of incarceration. On appeal, Valle argues that
Appellee-Plaintiff the State of Indiana presented insufficient evidence to support his
conviction for Class C felony inmate fraud, claiming he did not obtain money or property by
misrepresenting his ability to re-pay his alleged victim. The evidence shows that Valle
obtained a future interest in the bail money as well as his release from prison, both of which,
we conclude, constitute property under Indiana Code section 35-31.5-2-253(a). Valle also
argues that his sixteen-year aggregate sentence is inappropriate in light of his character and
the nature of his crimes. We affirm.
FACTS AND PROCEDURAL HISTORY
In March of 2012, Valle was incarcerated in the Grant County Jail on a charge of
Class D felony possession of marijuana. He shared a jail cell with Edward Jay Brummett,
whom Valle considered a friend. On March 22, 2012, Valle placed a jail house telephone
call to his acquaintance Damishia Cox and urgently requested that she come to the jail and
pick up a $650 check to be released from Brummett’s inmate commissary account. Valle
instructed Cox to arrive at 9:30 a.m. on March 23, and, after cashing the check, to place $505
into Valle’s commissary account so that he could bail1 himself out of jail. Cox could keep
the remaining $145. Valle added that, if asked, Cox should lie and tell jail officials that she
was Brummett’s cousin. During a second telephone call to Cox on March 22, Valle advised
that he would give Cox a wake-up call the following morning.
On March 23, 2012, Valle called Cox at 8:00 a.m. and urged her to come to the jail.
Around this time, Valle also presented Jail Officer James Stone with an Inmate Personal
Items Release Form, which Valle purported had been completed by Brummett. The form
was signed, “Edword [sic] Brummet [sic],” and directed the release of $650 from Brummett’s
commissary account to Cox. Ex. 1. Cox arrived at the jail before this Release Form was
processed, prompting Corporal William Kirkpatrick to contact Officer Stone to see if a form
had been completed. Although Officer Stone had received the Release Form from Valle
earlier that morning, he had not received an Inmate Grievance Form. In order to release
money from an inmate’s commissary account, jail policy requires that a Release Form be
accompanied by a Grievance Form, explaining the reason for the money’s release.
Officer Stone approached Brummett in his jail cell, showed Brummett the Release
Form Valle had given him, and asked Brummett why he was releasing the money. Brummett
informed Officer Stone that he did not know Cox, had not completed a Release Form, and in
no way had authorized Valle to withdraw funds from his commissary account. Later that
day, Corporal Kirkpatrick found a second, identical Release Form in his inbox along with a
Appellant, Appellee, and the trial court all use the term “bond” to describe the security at issue in this
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case. We use the term “bail.” See Ex. 7 (Cash Bail Confirmation Fax).
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Grievance Form, signed, “Edword [sic] Brummet [sic].” Ex. 3. The form stated:
I currently have $739.69 on my account. My Grandma’s car payment is
tomorrow[.] The date of March 23, 2012[,] my cousin Damishia Cox will be
here at around 9:30 AM to pick up $650.00 (six hundred and fifty dollars)
exact amount[.] Please do not release any more than the amount given! I am
sending a release of property slip with this grievance so that there are no
confusions tomorrow morning.
Ex. 3. No money was ever released to Cox.
On March 26, 2012, undeterred by his failed attempt to make bail using Brummett’s
commissary funds, Valle attempted to contact his friend Heather Barrett in hope that she
might provide the requisite bail money. Valle found a telephone number for an individual
with the surname “Barrette” in the phone book and, believing this to be Heather’s number,
placed a call to it on the jail house telephone at 7:36 p.m. Instead of Heather, however,
Valle’s call reached Peter Barrett, an individual with no relation to Heather and whom Valle
did not know. Despite having reached the wrong Barrett, Valle engaged Peter in
conversation. Valle confided in Peter that he was in jail and enlisted Peter to call Valle’s
mother, Nancy, and his fiancée, Kristen, to see if they could bail Valle out of jail.
At 7:56 p.m., Valle called Peter a second time. Peter reported to Valle that he had
spoken with Nancy and that she did not have the money for Valle’s bail. Peter had not
attempted to contact Kristen, but he informed Valle that Nancy was going to call her. During
this conversation, Valle told Peter that he was incarcerated for possession of marijuana, and
Peter replied that he “got in trouble with that when [he] was in the Navy.” Ex. 13. This
prompted Valle to share that he had been in the National Guard. Valle and Peter proceeded
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to discuss veteran’s benefits, and, eventually, the conversation veered into Peter volunteering
to bail Valle out of jail. Specifically, Peter asked Valle, “[H]ow would you be able to pay
this back if somebody got the money up for ya?” Ex. 13. Valle replied that he could “go
straight to [his] cousin’s house” to get the money, and that “[he would] be able to pay it right
back..like within 15 minutes of being released.” Ex. 13. Valle went on to say he could
“probably” give Peter $800 in return. Ex. 13. Ultimately, Peter decided that he would call
Kristin to see if she had the bail money, and if not, he would consider bailing Valle out
himself when the bank opened on Monday morning.
Although the two agreed that Valle would call Peter back the following morning, at
8:11 p.m. that night, Valle called Peter a third time. Peter reported that he had been unable to
reach Kristin, and Valle advised Peter that he could use a credit card to post Valle’s bail.
Peter proposed that they wait to see if Nancy would be able to raise the money, but Valle was
insistent on being bailed out immediately. Valle again told Peter that he would pay Peter
back promptly upon his release. Further, Valle lied and told Peter that his Godfather
manages a roofing company, where Valle had worked prior to his arrest. Valle added that he
would “have no problem” getting his job back once released. Ex. 14. The conversation
ended with Valle giving Peter the phone number to call with his credit card number and Peter
giving Valle his address so the two could settle up after Valle’s release. Again, Valle told
Peter he would pay him $800 in return.
At 8:51 p.m., Valle called Peter a fourth time to check on the status of his bail. Peter
informed Valle that he had successfully paid the bail using his credit card and that he had
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been charged a $75 service fee. Valle emphasized that he would pay Peter $800 and stated
that he would call Peter as soon as he was released. Shortly after Valle’s release, Valle called
Peter, but at trial, Peter could not recall what was said. Peter never received any money back
directly from Valle. The bail money was posted with the Clerk of the Court, where it
remained until the Judge ordered it released to Peter as restitution. The $75 service fee was
not returned.
On May 9, 2012, the State charged Valle as follows: Counts 1 and 2, Class C felony
forgery;2 Count 3, Class D felony attempted theft;3 and Count 4, Class C felony inmate fraud.4
On May 20, 2012, Marion Police Officer Gregg Melton was executing arrest warrants on
these charges, when Valle fled into an apartment and locked the door. Officer Melton kicked
open the door and pursued Valle to the rear of the apartment, where Valle was apprehended
in a room containing five other individuals. On May 21, 2012, the State added Count 5,
Class A misdemeanor resisting law enforcement.5 Valle was tried by a jury and found guilty
as charged. The trial court sentenced Valle as follows: eight years executed on Counts 1 and
2, to be served concurrently with three years executed on Count 3; and eight years executed
on Count 4, to be served concurrently with one year executed on Count 5. The court went on
to find the following aggravating circumstances:
1. At the age of 25, [Valle] has accumulated a lengthy juvenile and
adult history, including numerous probation violations, spanning
2
Ind. Code § 35-43-5-2(b)(2) (2011).
3
Ind. Code §§ 35-43-4-2(a), 35-31-2-4 (2011).
4
Ind. Code § 35-43-5-20(b)(1) (2011).
5
Ind. Code § 35-44-3-3(a)(3) (2011).
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several jurisdictions, and demonstrating that [he] has been in virtually
continuous trouble with the law since age 11.
2. These offenses were committed while [Valle] was incarcerated
awaiting trial or on bond on another offense, to which he recently pled
guilty.
3. [Peter Barrett] was mentally incapacitated, and [Valle] took
advantage of such incapacitation in committing [inmate fraud].
Appellant’s App. p. 77. The court found no mitigating circumstances. Based upon the
“significant aggravating circumstances,” the court ordered that the concurrent sentences for
Counts 1, 2, and 3 be served consecutively with those for Counts 4 and 5, for an aggregate
sentence of sixteen years executed. Appellant’s App. p. 69.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
Valle argues that the State failed to present sufficient evidence to support his Class C
felony inmate fraud conviction.
“In reviewing the sufficiency of the evidence, we neither re-weigh the
evidence nor judge the credibility of the witnesses.” Vance v. State, 640
N.E.2d 51, 57 (Ind. 1994). “[W]e look only to the probative evidence
supporting the verdict and the reasonable inferences therefrom to determine
whether a reasonable trier of fact could conclude the defendant was guilty
beyond a reasonable doubt.” Frias v. State, 547 N.E.2d 809, 813-14 (Ind.
1989). “If there is substantial evidence of probative value to support the
conviction it will not be set aside.” Brown v. State, 677 N.E.2d 517, 519 (Ind.
1997).
Fields v. State, 679 N.E.2d 898, 900 (Ind. 1997) (brackets in original).
Indiana Code section 35-43-5-20 provides:
(b) An inmate who, with the intent of obtaining money or other property from
a person who is not an inmate, knowingly or intentionally:
(1) makes a misrepresentation to a person who is not an inmate and obtains
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or attempts to obtain money or other property from the person who is not
an inmate;
…
commits inmate fraud, a Class C felony.
Valle concedes that the evidence sufficiently supports the conclusion that he made
misrepresentations to Peter about his prospective employment and ability to repay Peter.
Valle claims, however, that he did not obtain money or property from these
misrepresentations.
At trial, the State argued that Valle obtained the bail money posted by Peter because,
in order to complete the bail transaction, Peter agreed to the following provision:
The cardholder acknowledges that he/she relinquishes any claim to these funds
and understands and agrees that these funds will become the property of the
defendant. Furthermore, the cardholder understands that upon disposition of
the charges/cases against the defendant, any funds ordered returned by the
court will be returned to the defendant and not the cardholder.
Ex. 7 (emphasis added). Valle contends that this evidence is insufficient to prove that he
obtained money or property because he never possessed the bail money; it remained with the
County Clerk throughout trial and was returned to Peter at sentencing. We rephrase this issue
as whether Valle’s future interest in the bail money constitutes property for the purposes of
inmate fraud. We conclude that it does.
The Indiana Criminal Code defines “property” as “anything of value,” including: “(1)
a gain or advantage or anything that might reasonably be regarded as such by the beneficiary”
and “(10) contract rights, choses-in-action, and other interests in or claims to wealth[.]” Ind.
Code § 35-31.5-2-253(a). That the bail money, less the $75 service fee, was ultimately
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ordered returned to Peter is of no matter. Had Valle’s plan not been thwarted, he would have
been entitled to the bail money if returned by the court.
The State also argued at trial that Valle obtained property in the form of his release
from jail. We agree. In addition to any “gain or advantage,” Indiana Code section 35-31.5-2-
253(a) includes “(3) intangibles” in its definition of “property.” Valle’s claim that his release
was somehow incidental to the cash bail is untenable. The relevant code provisions above do
not differentiate between direct and indirect benefits, and, by definition, an inmate’s release
is the intended and direct result of bail. BLACK’S LAW DICTIONARY 150 (8th ed. 2004)
(defining “bail” as “[a] security such as cash or a bond … required by a court for the release
of a prisoner who must appear in court at a future time.”); id. (defining “cash bail” as “[a]
sum of money (rather than a surety bond) posted to secure a prisoner’s release from jail.”).
The evidence was sufficient to support Valle’s conviction for inmate fraud.
II. Appropriateness of the Sentence
Valle also argues that his sixteen-year aggregate sentence is inappropriate in light of
his character and the nature of the offense. We “may revise a sentence authorized by statute
if, after due consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender.” Ind.
Appellate Rule 7(B). “Although appellate review of sentences must give due consideration
to the trial court’s sentence because of the special expertise of the trial bench in making
sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when
certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App.
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2006), trans. denied (citations and quotation marks omitted). “[W]hether we regard a
sentence as appropriate at the end of the day turns on our sense of the culpability of the
defendant, the severity of the crime, the damage done to others, and myriad other factors that
come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In
addition to the “due consideration” we are required to give to the trial court’s sentencing
decision, “we understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).
With regard to the character of the offender, Valle concedes that he has an “extensive
and serious” criminal record, “especially for a 25 year old man.” Appellant’s Br. p. 10.
Notwithstanding his significant juvenile history, Valle has been convicted of six prior
felonies and eight misdemeanors and has committed eight probation violations. “This history
reflects an individual who has been given numerous opportunities to reform his criminal
behavior” and “shown no inclination or willingness to change.” Appellant’s Br. 10. In fact,
as the trial court found, Valle committed the present offenses while he was either
incarcerated awaiting trial or on bail for an additional felony offense, to which he has since
pled guilty.
With regard to the nature of the offenses, Valle claims that his sixteen-year aggregate
sentence is inappropriate because no threats were made and no one was injured in their
commission. His crimes, however, were aggravating in other ways. In committing forgery,
Valle victimized his cellmate Brummett, whom Valle considered a friend. In committing
attempted theft, Valle involved his acquaintance Cox, an individual with no criminal history
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and whom Valle asked to lie to jail officials. In committing inmate fraud, Valle took
advantage of Peter, an individual the trial court determined to be “mentally incapacitated.”
Appellant’s App. p. 77. And in resisting law enforcement by fleeing into an apartment, Valle
endangered the five other individuals in the apartment. Valle further claims that his sentence
is inappropriate because the pecuniary loss resulting from his crimes was only $75. But, had
Valle’s plans not been thwarted, an additional $505 would have been lost. Moreover, Peter,
a recipient of disability benefits, was without $505 for five months during the pendency of
Valle’s trial.
The judgment of the trial court is affirmed.
BROWN, J., concurs.
RILEY, J., concurs in part and dissents in part.
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