Adrian Anthony v. State of Indiana

In the early morning hours of October 24, 2013, Anthony and three

accomplices––Michael Pugh, Taiwan Lundy, and Trae Spells––broke into a

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Northside-Indianapolis home belonging to R.N. and his wife, B.N. One of the

men entered the bedroom and held R.N. and B.N. at gunpoint while the

remaining group members ransacked the house taking anything of value

including jewelry, purses, watches, electronics, and televisions. The individual

holding the couple at gunpoint asked them where they kept their cash. When

the couple responded that they did not keep money in the house, the individual

fired the gun over their heads and continued to question them about where they

kept their money until R.N. stated that their money was in the bank. R.N. then

gave the men a PIN to use with his debit card.

[4] The couple remained at gunpoint while one member of the group took B.N.’s

2006 Jeep Commander to a nearby ATM and attempted to withdraw money

from R.N.’s account without success. Eventually, the man returned and

accused R.N. of lying about his PIN. The men threatened to kill the couple and

R.N. offered to go to the ATM with the men to retrieve money, suggesting that

the PIN may have been entered incorrectly. The group then violently assaulted

R.N. before ultimately deciding to take R.N. to the ATM.

[5] While being held at gunpoint, R.N. drove Anthony to the ATM and attempted

to withdraw money himself. However, R.N. was unable to complete a

transaction with the same ATM card because his account had been locked due

to the number of unsuccessful prior attempts. Anthony then stated, “You lied

to me again. You guys are dead.” Tr. p. 79. R.N. told Anthony that his wife

had a separate account with a different ATM card and the two then returned to

the house to retrieve it.

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[6] After locating B.N.’s debit card, Anthony forced B.N. to drive him back to the

ATM. Once at the ATM, B.N. attempted to withdraw $800 but the amount

was denied because there is a maximum of $500 which may be withdrawn in a

given period of time. B.N. then successfully withdrew $500 and gave it to

Anthony. B.N. then attempted to make additional withdrawals but was

unsuccessful. All told, there were thirteen attempted ATM transactions with

only one being successful. The first five unsuccessful transactions occurred

around 6:18 a.m., the second five unsuccessful transactions occurred around

7:37 a.m., and the final three transactions, including the sole successful

withdrawal, occurred around 8:01 a.m.

[7] After returning to the house, Anthony and the other men tied up R.N. and

B.N., loaded the stolen items into B.N.’s vehicle, and savagely beat the couple

over the head with a DVD player before leaving the house. After they were

sure that the group had left, the couple freed themselves and called 911.

[8] The State charged Anthony with one count of Class A felony burglary, one

count of Class A felony conspiracy to commit burglary, four counts of Class B

felony robbery, eleven counts of Class B felony criminal confinement, two

counts of Class C felony intimidation, thirteen counts of Class C felony forgery,

one count of Class C felony conspiracy to commit forgery, one count of Class C

felony sexual battery, one count of Class A felony criminal deviate conduct,

three counts of Class C felony battery, and two counts of Class B felony

carjacking. The jury found Anthony guilty on thirty-five counts, not guilty on

one count of Class C felony battery, and was unable to reach a verdict regarding

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sexual battery, criminal deviate conduct, and two counts of criminal

confinement. Anthony received six years for each forgery conviction to be

served concurrently and an aggregate sentence of eighty-eight years executed in

the DOC.

Discussion and Decision

[9] On appeal, Anthony argues that there is insufficient evidence to sustain his

convictions for forgery.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt.

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007) (citations and quotations

omitted). However, questions concerning the interpretation of a statute are

legal issues which we review de novo. Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct.

App. 2008).

[10] Anthony argues that using the victims’ ATM cards did not qualify as “uttering”

a written instrument for purposes of the forgery statute. Indiana code section

35-43-5-2 (2014) provides that “A person who, with intent to defraud, makes,

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utters, or possesses a written instrument in such a manner that it purports to

have been made: (1) by another person…; or (4) by authority of one who did

not give authority; commits forgery, a Class C felony.” The charging

information alleged that Anthony and Spells “with the intent to defraud,

utter[ed] to Chase Bank a written instrument, that is: a debit card...in such a

manner that said instrument purported to have been made by the authority of

[R.N. or B.N.], who did not give authority.” Appellant’s App. pp. 51-53. The

jury was instructed that “utter,” as defined by Indiana code section 35-31.5-2

345, means “to issue, authenticate, transfer, publish, deliver, sell, transmit,

present, or use.”

[11] At first glance, it appears that Anthony’s behavior qualifies as forgery under the

express language of the statute. Anthony uttered (i.e., presented or used)

written instruments––the victims’ debit cards––in a manner such that it

appeared that the victims were authorizing withdrawals. Anthony argues that

the victims’ debit cards were not forged and so he did not use a forged

instrument. However, it is not an essential element of forgery that the

instrument used necessarily be forged or inauthentic. Rather, impersonating

another so as to use an authentic written instrument belonging to them without

authorization is sufficient to prove forgery. Borjas v. State, 946 N.E.2d 1230,

1233 (Ind. Ct. App. 2011), trans. denied; see also Green v. State, 945 N.E.2d 205

(Ind. Ct. App. 2011)).

[12] In Borjas, this court held that an individual who attempts to use a credit card

belonging to another person, and authenticates that card with a signature

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purporting to be the other person, can be convicted of forgery. Id. (“we hold

that the State presented sufficient evidence that Borjas uttered a written

instrument when she signed Hornbeak’s name to authenticate the purchases she

made using Hornbeak’s credit card.”). The parties disagree on whether entering

a PIN is analogous to signing another person’s name to authenticate a credit

card. We find no meaningful distinction.

[13] Using a debit card to withdraw money from an ATM is essentially the same as

writing oneself a check to cash at the bank. If an individual steals a victim’s

checkbook, forges the victim’s signature, and attempts to cash a check, then the

individual is clearly guilty of forgery. The same logic applies to an ATM

transaction. Like a signature, a personal identification number is a means by

which the bank can attempt to verify a person’s identity and assure that they are

authorized to access the account. By using the victims’ PINs, Anthony was

attempting to defraud the bank by purporting to be the victims. We agree with

the State that distinguishing ATM transactions as Anthony suggests would

allow defendants to avoid criminal liability due to advances in technology.