Lyle M. Moser v. State of Indiana

On the afternoon of Friday, December 13, 2013, Moser used an ATM to

deposit two checks at Star Financial Bank (“Star”), a federally-insured

institution. One check for $2,059.90 purported to be a cashier’s check and

identified South American Climbing as the remitter. The other check was for

$1,400.00 and was purported to have been issued by Community Caregivers in

Ohio. When Moser made the deposit, his account balance was zero.

[4] Immediately after Moser made the deposit, he began checking the balance and

attempted to withdraw money from the account. The funds were posted to

Moser’s account the next day, and he used his ATM card to make several cash

withdrawals and purchases. By Sunday evening, there were insufficient funds

in the account, and the ATM card was declined by a merchant.

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[5] When Star attempted to process the checks the next week, both checks were

dishonored by their respective banks. Michelle Halter, a security analyst and

senior investigator for Star, began an investigation. She noticed typos on both

checks and saw that one of them previously had been presented for payment

and rejected. Halter contacted Moser regarding the checks. Moser explained to

Halter that he received the checks as payment for car parts he sold on Craigslist.

Moser denied having been overpaid and offered to bring in the envelopes the

checks were mailed in but never did.

[6] On April 29, 2014, the State charged Moser with Class C felony fraud on a

financial institution. That same day, Moser sent a letter to the prosecutor’s

office describing himself as a victim of a Craigslist scam, offering to repay the

money, and indicating that he could provide emails and envelopes to support

his claim. The letter indicated he had spoken with a detective and would meet

with the detective when he returned to Indiana. Moser never contacted the

detective, produced the emails, or repaid Star.

[7] A jury found Moser guilty as charged. The trial court sentenced him to eight

years in the Department of Correction. Moser now appeals.

Analysis

I. Sufficiency

[8] Moser argues there is insufficient evidence of his intent to defraud Star. When

reviewing a challenge to the sufficiency of the evidence, we neither reweigh the

evidence nor assess the credibility of witnesses. Bailey v. State, 979 N.E.2d 133,

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135 (Ind. 2012). We view the evidence—even if conflicting—and all reasonable

inferences drawn from it in a light most favorable to the conviction and affirm if

there is substantial evidence of probative value supporting each element of the

crime from which a reasonable trier of fact could have found the defendant

guilty beyond a reasonable doubt. Id.

[9] At the time Moser committed the offense, Indiana Code Section 35-43-5-8(1)

defined Class C felony fraud on a financial institution as knowingly executing

or attempting to execute a scheme or artifice to defraud a state or federally

chartered or federally-insured financial institution. “A person engages in

conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high

probability that he is doing so.” Ind. Code § 35-41-2-2(b).

[10] Moser contends the State did not prove that he knowingly defrauded Star. He

refers us to his letter to the prosecutor describing himself as a victim of a

Craigslist scheme and to his testimony explaining the inconsistencies in his

various versions of events.

[11] The evidence most favorable to the verdict, however, established that Moser

knowingly defrauded Star. For example, there were obvious typos on both

checks including the misspelled “remmitter,” the lack of capitalization of

Moser’s last name, and an extra period in an address line. Ex. 3. Also, when

Moser attempted to cash one of the checks, it was declined, and he was

instructed to take the check to his bank. Instead, he deposited the checks into

an account with a zero balance at an ATM on a Friday afternoon while the

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bank was open and then performed several balance inquires, withdrawals, and

purchases, ultimately depleting the funds in two days, before the checks were

processed by Star.

[12] Further, Moser’s statements to Halter and the prosecutor were riddled with

inconsistencies and were inconsistent with his trial testimony. Despite claiming

to have emails and envelopes to support his story of being a victim of a

Craigslist scheme, he never produced the emails and waited until the trial to

present the envelopes that did not positively verify his story. At trial, Moser

claimed that one person purchased the car and parts he had listed for sale on

Craigslist and sent Moser three checks, one from Community Caregivers, one

from South American Climbing, and one from Sears Optical, in advance of

receiving the car and parts. Moser claimed he never cashed the third check and

had the envelope at home. He also testified that the car and parts were picked

up after he became aware the checks were bad, but he did not report the

incident to the police.

[13] Finally, Moser testified that his asking price for the car was $1,500.00, which he

sold for $2,059.00, and that the asking price for the parts was $500.00, which he

sold for $1,400.00. Moser agreed that the purchaser overpaid by roughly

$1,500.00 and claimed that the purchaser instructed him to pay the two people

who picked up the car and parts $500.00 each. This is inconsistent with

Halter’s testimony that, when she spoke with Moser, he claimed there was no

overpayment.

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[14] From this evidence, the jury could conclude that Moser knowingly defrauded

Star. Moser’s arguments to the contrary are a request to reweigh the evidence,

which we cannot do.

II. Sentence

[15] Moser argues that his eight-year sentence is inappropriate. Indiana Appellate

Rule 7(B) permits us to revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, we find that the sentence is

inappropriate in light of the nature of the offense and the character of the

offender. Although Appellate Rule 7(B) does not require us to be “extremely”

deferential to a trial court’s sentencing decision, we still must give due

consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.

App. 2007). We also understand and recognize the unique perspective a trial

court brings to its sentencing decisions. Id. “Additionally, a defendant bears

the burden of persuading the appellate court that his or her sentence is

inappropriate.” Id.

[16] The principal role of Appellate Rule 7(B) review “should be to attempt to

leaven the outliers, and identify some guiding principles for trial courts and

those charged with improvement of the sentencing statutes, but not to achieve a

perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225

(Ind. 2008). We “should focus on the forest—the aggregate sentence—rather

than the trees—consecutive or concurrent, number of counts, or length of the

sentence on any individual count.” Id. Whether a sentence is inappropriate

ultimately turns on the culpability of the defendant, the severity of the crime,

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the damage done to others, and myriad other factors that come to light in a

given case. Id. at 1224. When reviewing the appropriateness of a sentence

under Appellate Rule 7(B), we may consider all aspects of the penal

consequences imposed by the trial court in sentencing the defendant, including

whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

1023, 1025 (Ind. 2010).

[17] Even if the nature of the offense is not particularly egregious, Moser did present

three different versions of the crime, ultimately painting himself as a victim of a

Craigslist scheme. Regarding his character, forty-year-old Moser has seventeen

misdemeanor convictions and eight felony convictions. His felony convictions

include burglary, receiving stolen property, receiving stolen auto parts, theft,

and three counts of fraud. His misdemeanor convictions include multiple

counts of check deception and criminal conversion. As the trial court aptly

observed, Moser “has no respect for other people, or for the rules of society. He

clearly is a thief . . . .” Sentencing Tr. p. 13. Moser has not shown that his

sentence is inappropriate.

There is sufficient evidence to support Moser’s conviction and he has not

established that his sentence is inappropriate. We affirm.