February 6, 2014
CHARLOTTE N. MCGILL, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE SHELBY CIRCUIT COURT. The Honorable Charles D. O'Connor, Judge. Cause No. 73C01-1111-FD-326.
ATTORNEY FOR APPELLANT: GILDA W. CAVINESS, Caviness Law Office, LLC, Rushville, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, MICHAEL GENE WORDEN, Deputy Attorney General, Indianapolis, Indiana.
BARNES, Judge. ROBB, J., and BROWN, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
Charlotte McGill appeals her convictions for Class D
felony fraud and Class D felony theft. We affirm.
McGill raises two issues, which we restate as:
I. whether the evidence is sufficient to sustain her convictions; and
II. whether her convictions violate the prohibition against double jeopardy.
Glen Brooks was a Platinum level Advantage Rewards
Program member at Indiana Grand Casino ("Casino"). He accumulated points on his
player's card that he could redeem for food, merchandise, and cash for playing
on the slot machines, i.e. "free play." The player must enter a four-digit pin
number to access the free play. Brooks had two player's cards for his account.
On November 16, 2011, Brooks and his wife went to the Casino. After several
hours, he noticed that he had fewer points than earlier in the day. He was
missing $250.00 in free play and thousands of points. Brooks reported the
discrepancy to the authorities at the Casino.
Upon reviewing video surveillance and computer
records of Brooks's player's card, the authorities discovered that Brooks had
accidentally left his player's card in a slot machine. A Casino patron, later
identified as McGill, discovered the card, took it, used it repeatedly at
various slot machines, and took $250.00 in free play from Brooks's account.
Id. at 107. Agent Anthony Chapman of the Indiana Gaming Commission made
contact with McGill, who was still at the Casino. McGill denied having Brooks's
The State later charged McGill with Class D felony
fraud and Class D felony theft. In the fraud charging information, the State
alleged that McGill "did with the intent to defraud Indiana Grand Casino obtain
property, by using, without consent, a credit card, when said credit card has
issued to another person." App. p. 37. In the theft charging information, the
State alleged that McGill "did knowingly or intentionally exert unauthorized
control over the property of Glen T. Brooks, with the intent to deprive said
person of any part of the use or value of the property." Id. A jury found
McGill guilty as charged, and the trial court sentenced her to concurrent
sentences of one and one-half years with twenty days executed and seventeen
months of probation. McGill now appeals.
II. Sufficiency of the Evidence
McGill argues that the evidence is insufficient to
sustain her convictions. When reviewing the sufficiency of the evidence needed
to support a criminal conviction, we neither reweigh evidence nor judge witness
credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). "We
consider only the evidence supporting the judgment and any reasonable inferences
that can be drawn from such evidence." Id. We will affirm if there is
substantial evidence of probative value such that a reasonable trier of fact
could have concluded the defendant was guilty beyond a reasonable doubt. Id.
Indiana Code Section 35-43-5-4, which governs the
offense of fraud, provides: "A person who . . . with intent to defraud, obtains
property by . . . using, without consent, a credit card that was issued to
another person . . . commits fraud, a Class D felony." According to McGill, the
evidence is insufficient to show that she defrauded the Casino because there was
no explanation as to how she could have accessed Brooks's card without his pin
number. However, the video surveillance and the computer records from Brooks's
player's card clearly show that McGill used the player's card at various slot
machines and took $250.00 in free play. Although it is unclear how McGill
obtained Brooks's pin number, the evidence clearly demonstrated that she used
his card. The evidence is sufficient to sustain her conviction for fraud.
Indiana Code Section 35-43-4-2(a), which governs the
offense of theft, provides: "A person who knowingly or intentionally exerts
unauthorized control over property of another person, with intent to deprive the
other person of any part of its value or use, commits theft, a Class D felony."
McGill argues that the State "failed to present evidence sufficient to establish
that McGill knowingly or intentionally exerted control over Brooks's card or
ever intentionally held or controlled it." Appellant's Br. p. 12. However, the
video surveillance shows that Brooks accidentally left his card in a slot
machine. Another patron removed the card from the slot machine and left it on
the machine. Later, another patron set the card between two slot machines. The
video then shows McGill picking up the card and inserting it in the machine. The
card was then used at several slot machines, and McGill is seen on the video
surveillance at each of those slot machines. The evidence is sufficient to
sustain McGill's conviction for theft.
II. Double Jeopardy
Next, McGill argues that her convictions violate the
prohibition against double jeopardy. The Double Jeopardy Clause of the Indiana
Constitution provides "[n]o person shall be put in jeopardy twice for the same
offense." Ind. Const. art. 1, § 14. In Richardson v. State, 717 N.E.2d 32
(Ind. 1999), our supreme court concluded that two or more offenses are the same
offense in violation of Article 1, Section 14 if, with respect to either the
statutory elements of the challenged crimes or the actual evidence used to
obtain convictions, the essential elements of one challenged offense also
establish the essential elements of another challenged offense. Garrett v.
State, 992 N.E.2d 710, 719 (Ind. 2013).
McGill seems to argue that her convictions for fraud
and theft violate the actual evidence test. "Under the actual evidence test, we
examine the actual evidence presented at trial in order to determine whether
each challenged offense was established by separate and distinct facts." Id.
To find a double jeopardy violation under this test, we must conclude that there
is "a reasonable possibility that the evidentiary facts used by the fact-finder
to establish the essential elements of one offense may also have been used to
establish the essential elements of a second challenged offense." Id.
"The actual evidence test is applied to all the elements of both offenses."
Id. "'In other words . . . the Indiana Double Jeopardy Clause is not
violated when the evidentiary facts establishing the essential elements of one
offense also establish only one or even several, but not all, of the essential
elements of a second offense.'" Id. (quoting Spivey v. State, 761
N.E.2d 831, 833 (Ind. 2002)).
In Richardson, our supreme court acknowledged that
double jeopardy is not implicated where different victims are involved.
Frazier v. State, 988 N.E.2d 1257, 1264 (Ind.Ct.App. 2013) (citing
Richardson, 717 N.E.2d at 50 n.40). Our courts have repeatedly upheld this
principle, finding no double jeopardy violation where there are multiple victims
of the same crime. Id. Here, there are separate victims--the Casino and
Brooks. Consequently, McGill's
double jeopardy argument fails.
The evidence is sufficient to sustain McGill's convictions, and her convictions do not violate the prohibition against double jeopardy. We affirm.
ROBB, J., and BROWN, J., concur.