text:
    Michael PHELPS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 55A01-1108-CR-410.
    Court of Appeals of Indiana.
    June 11, 2012.

      Steven C. Litz, Monrovia, IN, Attorney for Appellant.

      Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

Michael Phelps appeals from his conviction of and sentence for Attempted Murder as a class A felony. Phelps presents the following consolidated and restated issues for our review:

1. Did the trial court with juvenile court jurisdiction abuse its discretion by waiving its jurisdiction?
2. Did the trial court with juvenile court jurisdiction err by denying Phelps’s motion to close the proceedings?
3. Did the trial court commit reversible error by denying Phelps’s motion for change of venue after jurisdiction had been waived?
4. Is Phelps’s sentence inappropriate in light of the nature of the offense and the character of the offender, or otherwise in violation of the state and federal constitutional prohibitions against cruel and unusual punishment?
We affirm.

Phelps began attending Martinsville West Middle School in 2007 upon entering the sixth grade. During that school year, Phelps accumulated twenty-four disciplinary referrals from five different staff members. Three involved altercations with other students and twenty-one were for refusing to cooperate with authority figures. The school attempted to modify Phelps’s behavior through an array of disciplinary actions.

Phelps was retained in the sixth grade because of his failing grades, which were the result of a lack of effort rather than an inability to master the content. During his second year of sixth grade, Phelps had five disciplinary referrals from four different staff members, two of which were for altercations with other students and three of which were for failure to cooperate with authority figures.

In the seventh grade, Phelps had thirteen disciplinary referrals, one of which involved an altercation with other students and twelve of which were for refusal to cooperate with authority figures. The school repeated its attempt to use a variety of measures such as student conferences, calling home, meeting with parents, after-school-detention, and in-school suspension, among others, to correct Phelps’s behavior. Phelps received an out-of-school suspension and was not allowed on school property for a period of time. The principal and other school officials communicated with Phelps’s mother numerous times about her son’s behavior. Phelps did not show a willingness to comply with school rules after receiving a disciplinary referral.

In the 2010-2011 school year Phelps was in the eighth grade. During that school year Phelps had eight disciplinary referrals from five different staff members. One of those referrals was for an altercation with other students and several other referrals were for refusing to cooperate with authority figures. On October 14, 2010, Phelps received his first referral to the juvenile system for truancy. He was placed on an informal adjustment for a period of three months. On November 29, 2010, Phelps made threats and punched another student in the face.

Two subsequent petitions were filed alleging that Phelps was delinquent for being in possession of paraphernalia. Phelps was adjudicated a delinquent and was placed on formal probation for six months. The very next day, Phelps received a disciplinary referral at school for rude and discourteous behavior. The day after that, Phelps received a disciplinary referral after he said he was going to blow up the school. Based on these referrals, the probation department filed a probation violation.

Phelps was suspended from school for ten days following his statement that he was going to blow up the school. The principal informed Phelps that his statement was taken seriously and they discussed Phelps’s other referrals and his decision not to be a serious student. Phelps was notified that he was not allowed on school property. The principal further informed Phelps that school officials were also recommending his expulsion from school in addition to the period of suspension.

On March 17, 2011, Phelps’s mother contacted the school to withdraw Phelps from school so that he could begin homeschooling. On March 22, 2011, Phelps’s mother returned his text books to the school, ensured that he had no pending fines, and completed the paperwork necessary for withdrawal. The principal informed Phelps’s mother that because he had withdrawn from school during a pending disciplinary action, Phelps would be considered a suspended student if he were to reenroll there.

During the period of suspension, Phelps spent time with his friend, Jeff Bunch. Phelps indicated that he wanted to steal a gun. Phelps subsequently stole a gun from the home of his former step-father, Andy Flanningan.

Phelps and another student at the middle school, Chance Jackson, did not get along with one another and had not for some time. Phelps had taunted Jackson on several occasions, and had attempted to engage him in a fight. Jackson, however, refused to fight Phelps.

Natalie Arnold had dated both Phelps and Jackson. Two weeks prior to March 25, 2011, Arnold saw Phelps at school. Arnold knew that Phelps was not supposed to be on school property and asked Phelps what he was doing. Phelps told her that he had some business to take care of and later showed Arnold a firearm. When Arnold inquired why Phelps had a gun, Phelps told her it was for her protection. On a separate occasion, Phelps sent a text message to Arnold stating that he wanted to shoot Jackson. Phelps and Arnold sent several text messages to one another, during one of which, Arnold asked Phelps to promise that he would not shoot Jackson.

A week to ten days prior to March 25, 2011, Darían Hoskins spoke with Phelps. Hoskins gave Phelps a hug and felt something in Phelps’s waistband. Hoskins asked Phelps what was in his waistband and Phelps replied that it was a gun. Phelps pulled out a black and silver firearm from the front of his pants and displayed it to Hoskins. Phelps also removed bullets from his pocket and showed them to Hoskins. Hoskins inquired why Phelps had a gun, and Phelps told him that he was having trouble with a kid at school named Chance. Phelps told Hoskins that he was going to shoot Chance at school.

On March 25, 2011, when Jeff Bunch arrived at school, Phelps was there and was asking if anyone had seen Chance Jackson. Phelps and Bunch started to enter the middle school, but turned around after Phelps indicated that there were too many people in there. Phelps and Bunch then entered a vestibule area where they found Jackson. Phelps stated to Jackson, “I hear you’ve been talking shit about me.” Trial Transcript at 36. Jackson replied, “No, I’ve been trying to avoid you.” Id. at 73. Phelps told Jackson that was not what he had heard, to which Jackson replied, “Well, you heard wrong.” Id. Phelps said, “So why won’t you fight me.” Id. Jackson stated that there was no reason to fight and that fighting would not solve anything. Jackson also told Phelps that he did not want to get kicked out of school. Phelps replied, “Too bad, bitch.” Id. Phelps then pulled out the black and silver firearm and shot Jackson twice in the abdomen. After the shooting, Phelps ran off, followed by Bunch.

Martinsville Police Officer Brian Chambers arrived at the school, which was at that time in complete lockdown. Due to the emergency and uncertainty if the assailant or assailants had additional plans, the children were required to sit on the floor in their classrooms. All the lights were turned off and the blinds were pulled while the SWAT team searched the school.

Jackson had sustained two gunshot wounds to his abdomen. Jackson told Officer Dawn Hofftnan of the Martinsville Police Department that Phelps had shot him. Jackson was then transported via Lifeline to Methodist Hospital in Indianapolis.

Bunch returned to the school and told police officers there that Phelps had tossed the firearm into a wooded area. Phelps was apprehended by Officer Blake Long near an elementary school. Phelps tested positive for marijuana when he was admitted to the detention center.

On March 28, 2011, the State filed a petition alleging that Phelps was a delinquent child. Thereafter, the State filed a motion to waive juvenile-court jurisdiction. A two-day hearing was held on the State’s motion at the conclusion of which the trial court took the matter under advisement. On April 25, 2011, the juvenile court held a hearing, during which it announced its findings and waived jurisdiction.

On April 26, 2011, the State charged Phelps with one count of attempted murder a class A felony, one count of aggravated battery as a class B felony, one count of carrying a handgun without a license on school property as a Class C felony, one count of trespassing on school property as a class D felony, possession of a firearm on school property as a class D felony, and one count of theft as a class D felony. On May 4, 2011, Phelps filed a motion for a change of venue, which was ultimately granted by the trial court.

Jury selection was held in Clay County. During voir dire, counsel for Phelps told the jury that the defense theory of the case was that although Phelps had shot Jackson, he had not intended to kill him. Several prospective jurors disagreed with the premise that a person could shoot another person twice without intending to kill the person. Phelps moved for another change of venue, to which the State objected. The trial court took the matter under advisement, deferring decision on the motion until further questioning of the prospective jurors had been completed.

After conferring with Phelps, Phelps’s counsel informed the trial court that Phelps wished to waive his right to a jury trial. After questioning Phelps, the trial court found that he was knowingly and voluntarily waiving his right to a jury trial. A bench trial was held on July 11, 2011, at which time the State dismissed all counts except for the count alleging attempted murder. The trial court found Phelps guilty of that count and sentenced him to thirty-five years executed with five years suspended and five years of probation. Phelps now appeals. Additional facts will be supplied where necessary.

1.

Phelps argues that the trial court having juvenile court jurisdiction abused its discretion by waiving that jurisdiction. In particular, Phelps contends that the State failed to establish that Phelps was beyond the rehabilitative resources of the juvenile system. Phelps asserts that he presented uncontroverted testimony that facilities were available that could address Phelps’s problems yet ensure the safety of the community.

Ind.Code Ann. § 31-80-3-2 (West, Westlaw current through legislation effective May 31, 2012) (the Waiver Statute) provides in relevant part as follows:

Upon motion of the prosecuting attorney and after full investigation and hearing, the juvenile court may waive jurisdiction if it find that:
(1) the child is charged with an act that is a felony:
(A) that is heinous or aggravated, with greater weight given to acts against the person than to acts against property; or
(B) that is a part of a repetitive pattern of delinquent acts, even though less serious;
(2) the child was at least fourteen (14) years of age when the act charged was allegedly committed;
(3) there is probable cause to believe that the child committed the act;
(4) the child is beyond rehabilitation under the juvenile justice system; and
(5) it is in the best interests of the safety and welfare of the community that the child stand trial as an adult.

We review the sufficiency of a particular waiver order in much the same way we review all sufficiency cases. We will not weigh the evidence or judge the credibility of witnesses. K.M. v. State, 804 N.E.2d 305 (Ind.Ct.App.2004). We look only to the evidence favorable to the State and the reasonable inferences to be drawn therefrom considering both the record established in the waiver hearing and the findings of fact stated by the trial court. Id.

Juvenile proceedings, unlike criminal proceedings, are civil in nature and the burden is on the State to establish by a preponderance of the evidence that juvenile jurisdiction should be waived. Id. We review the juvenile court’s decision to waive its jurisdiction for an abuse of discretion. Id. The juvenile court is entitled to give the evidence before it whatever weight it deems appropriate. Id.

We note at the outset that Phelps claims the trial court abused its discretion by making reference to the charged counts in addition to attempted murder and aggravated battery in its finding that Phelps engaged in a repetitive pattern of delinquent acts. Phelps argues that all of the charges related to the shooting did not constitute the repetitive commission of delinquent acts. The Waiver Statute, however, requires proof that the child committed an act that is a felony that is heinous or aggravated or part of a repetitive pattern of delinquent acts. Phelps agrees on appeal that the crimes of attempted murder and aggravated battery are especially heinous. Consequently, since the Waiver Statute is written in the disjunctive, and Phelps does not challenge the heinousness of the crimes with which he was charged, we find no abuse of discretion on that basis.

Phelps’s main contention is that the trial court abused its discretion in finding that he is beyond rehabilitation under the juvenile justice system. At the waiver hearing, Phelps presented the testimony of a psychologist, a minister of a residential facility, and two others who indicated that Phelps could benefit from programs in the juvenile justice system and that he was amenable to treatment. The State, on the other hand, presented the testimony of a juvenile probation officer, Brent Fultz, that Phelps was beyond rehabilitation in the juvenile justice system. Fultz was not aware of any residential placement facilities that would be willing to take on the liability of having Phelps placed there. Fultz, who had supervised several thousand juvenile probationers, stated that he assessed the seriousness of Phelps’s crime as a nine on a scale of one to ten, with ten being the most serious.

The State elicited testimony from the minister of the residential facility that the facility was not a secure facility and did not accept individuals who had committed crimes of violence. The minister agreed that Phelps did not qualify for his program. The psychologist who testified on Phelps’s behalf also stated that Phelps reacts angrily in many different situations and strikes out in anger when he feels threatened. He also testified that many people who have dysfunctional, troubled upbringings, such as Phelps’s, do not attempt to kill someone. The psychologist further testified that there was no significant difference in an adolescent who was sixteen years old and one who was fifteen years and eleven months old.

We conclude that Phelps’s argument amounts to an invitation to reweigh the evidence and reassess the credibility of witnesses, tasks our standard of review forbids us from undertaking. K.M. v. State, 804 N.E.2d 305 (Ind.Ct.App.2004). “The juvenile court in holding the waiver hearing is not compelled to give overriding weight to testimony that supports a finding the juvenile should remain in the juvenile system.” Gerrick v. State, 451 N.E.2d 327, 330 (Ind.1983).

Phelps also argues that the trial court abused its discretion by finding that Phelps’s waiver from juvenile court jurisdiction was in the best interests of the safety and welfare of the community. Again, Phelps points to the testimony of the psychologist who testified on his behalf during the hearing. The psychologist stated that Phelps had not demonstrated serious violent tendencies with anyone else, was never violent with females or family, and was never violent toward adults. The trial court had before it, however, the evidence set forth above outlining Phelps’s pattern of disciplinary problems at school and the school’s myriad efforts to help Phelps adjust his behavior, all to no avail. We will not reweigh the evidence or reassess witness credibility. The trial court did not abuse its discretion in finding that the State had met its burden of establishing this factor.

In sum, we find that the trial court did not abuse its discretion by finding that the State had met its burden by a preponderance of the evidence of establishing that the juvenile court should waive its jurisdiction. The challenges presented here on appeal pertain to the weight of the evidence. There was sufficient evidence before the juvenile court to support its decision.

2.

Phelps claims that the trial court erred by denying his request that the juvenile waiver hearing be closed to the public. Phelps asks this Court to clarify the interaction between Ind.Code Ann. § 31-32-6-3 (West, Westlaw current through legislation effective May 31, 2012) (Open Proceedings Statute) and I.C. § 31-32-6-4 (West, Westlaw current through legislation effective May 31, 2012) (Closed Proceedings Statute).

The Open Proceedings Statute provides that a delinquency proceeding in which a child is alleged to have committed an act that would be murder or a felony if committed by an adult is open to the public. I.C. § 31-32-6-3. The Open Proceedings Statute, however, provides for an exception under the Closed Proceedings Statute. Under section 4, upon a motion by the State, the child, the child’s guardian ad litem, counsel, parent, guardian, or custodian, the juvenile court may issue an order closing a proceeding during the testimony of a health care provider under certain circumstances. I.C. § 31-32-6-4 (West, Westlaw current through legislation effective May 31, 2012).

The State contends, and Phelps appears to acknowledge, that since the trial court denied the request to close the proceedings, and the proceedings remained open to the public, the question here is moot. There is no relief from the trial court’s ruling that can be afforded Phelps on appeal. This court will not engage in discussions of moot questions. See Richardson v. State, 402 N.E.2d 1012 (Ind.Ct.App.1980) (appellate court does not engage in discussion of moot questions or render advisory opinions).

That said, we note that the Closed Proceedings Statute provides that the trial court may issue an order to close the proceeding during a health care provider’s testimony. Inherent within the statutory language is the discretion provided the trial court in reaching that decision. The legislature has not spoken on the issue of whether a party may waive the possibility of closed proceedings by calling a witness to testify as to privileged matters in this context. We do not offer an opinion on this topic and find no juvenile trial court error in the exercise of its discretion to keep the waiver proceedings open.

3.

Phelps contends that once jurisdiction was waived, and the jury venire was being selected, the trial court erred by denying his second motion for change of venue. During voir dire, Phelps’s counsel advanced the defense theory that although Phelps shot Jackson twice, he did not intend to kill him. Several of the prospective jurors rejected that premise. Phelps’s counsel moved for a change of venue, to which the State objected. The trial court advised counsel that the motion would be taken under advisement. Defense counsel conferred with Phelps and informed the trial court that Phelps was waiving his right to a jury trial. The trial court questioned Phelps, determined that the waiver was knowingly and voluntarily made, and proceeded with a bench trial.

Our Supreme Court has held that a trial court has the discretion to postpone ruling on a motion for change of venue pending voir dire. Davidson v. State, 580 N.E.2d 238 (Ind.1991). We review a trial court’s decision on a motion for change of venue for an abuse of discretion. Id. Here, Phelps waived his right to jury trial without allowing the trial court the opportunity to rule on his motion. As a consequence, Phelps has failed to preserve this issue for our review. “Error can only be predicated on questions presented to and ruled upon by the trial court.” Wells v. State, 441 N.E.2d 458, 463 (Ind.1982). Because the motion for change of venue was withdrawn from the trial court prior to a ruling thereon, no error has been preserved for our review.

4.

Phelps asserts that his thirty-five-year sentence for his attempted murder conviction is inappropriate in light of the nature of the offense and the character of the offender. As such, he asks this court to revise his sentence under Ind. Appellate Rule 7(B). He also contends that his sentence is violative of federal and state constitutional prohibitions against cruel and unusual punishment.

Although framed primarily as an App. Rule 7(B) argument, Phelps appears to argue that the trial court abused its discretion in the weight given to the aggravating circumstances and the mitigating circumstance of his remorse for his crime. He also appears to argue that the trial court failed to find Phelps’s mental health issues as a mitigating circumstance. In addition to the constitutional arguments raised by Phelps we will consider his sentence under an abuse of discretion standard and inappropriateness standard of review. The sentencing range for a class A felony conviction is a fixed term of between twenty and fifty years, with the advisory sentence being thirty years. Ind.Code § 35-50-2-4 (West, Westlaw current through legislation effective May 31, 2012).

Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482 (Ind.2007) clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs if the decision is “clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. at 490. The trial court can abuse its discretion by (1) issuing an inadequate sentencing statement, (2) finding aggravating or mitigating factors that are not supported by the record, (3) omitting factors that are clearly supported by the record and advanced for consideration, or (4) by finding factors that are improper as a matter of law. Laster v. State, 956 N.E.2d 187 (Ind.Ct.App.2011).

The trial court identified the following aggravating factors when sentencing Phelps: (1) The offense occurred in the presence of other children; (2) Phelps shot Jackson twice; (3) Phelps had stolen a gun before he committed the crime in this case; (4) Jackson’s injuries were substantial and long-term; and (5) Phelps made a deadly weapon in jail after he was incarcerated for this crime. Phelps does not dispute the validity of any of the aggravating factors found by the trial court, but instead argues that only the aggravating circumstance of Jackson’s substantial injuries should carry significant weight. Because a trial court can no longer abuse its discretion by failing to properly weigh aggravating and mitigating factors, we find no abuse of discretion in regard to the aggravating circumstances found. See Anglemyer v. State, 868 N.E.2d 482. (no abuse of discretion in failing to properly weigh aggravating and mitigating factors).

As for the mitigating factors, Phelps argues that the trial court omitted mitigating factors including his mental health, Jackson’s role in inducing the offense, and Phelps’s acceptance of responsibility and remorse for his actions. When the allegation is that the trial court failed to identify or find a mitigating factor, the defendant is required to establish that the mitigating evidence in not only supported by the record, but that the mitigator is significant. Id. Where the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exist. Id.

Phelps did not establish a nexus between his mental health issues and the shooting of Jackson. The psychologist Phelps called to testify about his mental health issues stated that none of Phelps’s mental health issues affected his ability to control his behavior. Thus, the trial court did not err by failing to find Phelps’s mental health issues to be a significant mitigating factor. See Lopez v. State, 869 N.E.2d 1254 (Ind.Ct.App.2007) (no trial court error in questioning the extent to which mental illness was in control of the defendant’s behavior and caused her to commit her crimes).

Phelps argues that Jackson’s role in inducing the offense should have been found as a mitigating factor. Phelps contended that Jackson spread personal information about Arnold, who had been the girlfriend of each boy at some period of time. Jackson supposedly used a nickname for Arnold, which directly made reference to that personal information. Phelps argues that Jackson’s actions in that regard explain Phelps’s anger toward Jackson, and that the trial court abused its discretion by not finding this mitigating factor. The psychologist who testified in this trial, however, stated that he had discussed with Phelps the alleged rumor being spread by Jackson about Arnold, and asked Phelps to what degree that might have contributed to his shooting Jackson. Phelps indicated that the trouble between Jackson and Arnold had very little to do with the shooting. He indicated that his own feelings of anger toward Jackson were the primary basis for the shooting. We cannot say that the trial court abused its discretion by omitting this proffered mitigating factor.

Phelps also contends that the trial court should have found his remorse to be a significant mitigating factor. A trial court is under no obligation to accept a defendant’s alleged remorse as a mitigating circumstance. Manns v. State, 687 N.E.2d 842 (Ind.Ct.App.1994). The trial court possesses the ability to directly observe a defendant and can best determine whether a defendant’s remorse is genuine. Mead v. State, 875 N.E.2d 804 (Ind.Ct.App.2007). Substantial deference must be given to the trial court’s evaluation of a defendant’s remorse. Id. We find no abuse of discretion in the trial court’s treatment of this proffered mitigating circumstance.

Turning now to Phelps’s argument that his sentence is inappropriate, we note that we have the constitutional authority to revise a sentence if, after careful consideration of the trial court’s decision, we conclude the sentence is inappropriate in light of the nature of the offense and character of the offender. See Ind. Appellate Rule 7(B); Anglemyer v. State, 868 N.E.2d 482. Even if a trial court follows the appropriate procedure in arriving at its sentence, we maintain the constitutional power to revise a sentence we find inappropriate. Hope v. State, 834 N.E.2d 713 (Ind.Ct.App.2005). Although we are not required under App. R. 7(B) to be “extremely” deferential to a trial court’s sentencing decision, we recognize the unique perspective a trial court brings to such determinations. Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007). On appeal, Phelps bears the burden of persuading us that his sentence is inappropriate. Rutherford v. State, 866 N.E.2d 867.

As for the nature of the offense, we observe that Phelps stole a handgun from his former step-father, Andy Flan-ningan. Phelps showed the handgun to others in the period of time leading up to the shooting. Phelps entered onto school property, from which he had been banned, and did so just as school was about to begin for the day. Other students were present at the school then and observed Phelps on school property. Phelps sought out Jackson and then shot him twice after a brief verbal altercation between the two. Phelps then fled the scene, discarding his jacket in order to conceal his identity, and discarded the still-loaded handgun along the way. We cannot say that the slightly enhanced sentence for attempted murder is inappropriate in light of the nature of the offense.

As for the character of the offender, we observe that Phelps had much difficulty with complying with the direction of authority figures at his school. He displayed an inability to control or curb his anger. Phelps, who had the intellectual ability to succeed at school, chose not to take advantage of those opportunities, especially in light of his substance-abuse-ridden family setting. Phelps himself suffered from substance-abuse issues. Phelps refused to take advantage of the rehabilitative efforts offered by people within his school system. We cannot say that the slightly enhanced sentence for attempted murder is inappropriate in light of the character of the offender.

We now turn to Phelps’s constitutional claims regarding his sentence. Phelps contends that his sentence of thirty-five years with five years suspended to probation for attempted murder is cruel and unusual punishment under article 1, section 16 of the Indiana Constitution and the Eighth Amendment to the federal constitution. A penalty is disproportional under article 1, section 16 of the Indiana Constitution only when the criminal penalty is not graduated and proportioned to the nature of the offense. Conner v. State, 626 N.E.2d 803 (Ind.1993). “The constitutional prohibition against cruel and unusual punishments proscribes atrocious or obsolete punishments and is aimed at the kind and form of the punishment, rather than the duration or amount.” Ellis v. State, 736 N.E.2d 731, 736 (Ind.2000). Here, the record reveals that the trial court took great care in arriving at Phelps’s sentence. Our Supreme Court has held that a thirty-year sentence imposed for a sixteen-year-old’s conviction for the crime of attempted robbery did not constitute cruel and unusual punishment. See Douglas v. State, 481 N.E.2d 107 (Ind.1985). We find no violation here of article 1, section 16 of the Indiana Constitution.

The Eighth Amendment of the federal constitution proscribes grossly disproportionate punishments. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Our focus is upon whether Phelps’s case is “the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” U.S. v. Gross, 437 F.3d 691, 692-93 (7th Cir.2006), cert. denied, 548 U.S. 913, 126 S.Ct. 2944, 165 L.Ed.2d 967 (2006) (quoting Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003)). We find nothing unusual about a thirty-five year sentence, with five years suspended, for a conviction of attempted murder.

Judgment affirmed.

MAY, J., and BARNES, J., concur.

      . Ind.Code Ann. § 35-42-1-1 (West, Westlaw current through legislation effective May 31, 2012) (murder); Ind.Code Ann. § 35-41-5-1 (West, Westlaw current through legislation effective May 31, 2012) (attempt).


source: Caselaw Access Project

author: VAIDIK, Judge.

license: Public Domain

text:
    In re the Matter of B.N. and H.C. Children in Need of Services. M.C. (Mother), Appellant-Respondent, v. MARION COUNTY DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner, and Child Advocates, Inc., Appellee-Guardian Ad Litem.
    No. 49A02-1110-JC-1025.
    Court of Appeals of Indiana.
    June 13, 2012.

      Amy Karozos, Greenwood, IN, Attorney for Appellant.
    Patrick M. Rhodes, Indiana Department of Child Services, Robert J. Henke, DCS Central Administration, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

M.C. (“Mother”) appeals from the juvenile court’s determination that her son and daughter are Children in Need of Services (“CHINS”). Mother contends that the evidence is insufficient to support the juvenile court’s conclusion that her children’s physical and mental health were seriously impaired or endangered because of her inability, refusal, or neglect to supply them with necessary food, clothing, shelter, medical care, education, or supervision. We conclude that the evidence in this case is indeed insufficient to support the juvenile court’s determination that B.N. and C.H. are CHINS, and we therefore reverse.

Facts and Procedural History

On May 26, 2011, police stopped Mother in the parking lot of a gas station. When police searched her car, they found oxyco-done, Xanax, and marijuana. Her seven-year-old son B.N. was in the back seat of the vehicle. Police also discovered that Mother’s driver’s license was suspended. Mother was taken into custody by police and charged with possession of a controlled substance (oxycodone) and possession of marijuana. The Department of Children and Family Services (“DCS”) took custody of B.N. and Mother’s three-year-old daughter, H.C.

On May 31, DCS filed a petition alleging that B.N. and H.C. were CHINS because Mother had failed to provide them with a “safe and appropriate living environment free from drugs.” Appellant’s App. p. 29. Specifically, the petition alleged that the children were CHINS under Indiana Code section 31-34-1-1, which provides that a child is a CHINS if “[t]he child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision.”

Because Mother wished to have B.N. and C.H. returned to her care, she voluntarily submitted to four drug screens in June and July. At each drug screen, Mother provided DCS staff with current prescriptions for oxycodone and Xanax. Mother tested negative at each drug screen, and B.N. and H.C. were returned to her care in mid-July. After their return, Mother voluntarily submitted to a fifth drug screen, which was also negative.

A fact-finding hearing was held on October 17. At the hearing, DCS introduced evidence of Mother’s May 26 arrest as well as DCS’s previous involvement with Mother and B.N. four years earlier — -in 2007, DCS had substantiated claims of domestic violence by the children’s father, William Neighbors, against Mother.

Michelle Jeffries, a DCS family case manager, testified to her involvement with Mother since her May 26 arrest. FCM Jeffries informed the court of Mother’s voluntary, negative drug screens. Tr. p. 40. She also told the court that Mother had voluntarily participated in home-based services, though at the time of the hearing she was no longer doing so. Jef-fries also said that DCS made a referral for a substance-abuse assessment for Mother and mental-health assessments for the children; however, those assessments had not been completed. Jeffries also stated that Mother had recently been ordered to undergo random drug screenings, but Mother, who did not have a valid driver’s license, had not reported to these screenings. Jeffries also told the court that Mother, B.N., and C.H. were living in a house that Mother was renting and that Mother was employed. Jeffries also said that to her knowledge, Mother no longer saw Neighbors. Id.

DCS summarized their concerns regarding Mother as follows: Mother had been arrested and charged with possession of a controlled substance (oxycodone) and possession of marijuana and had admitted smoking marijuana in the past, Mother had not completed recent random drug screens, and visits to Mother’s current home, which she rented, indicated that other individuals may have been staying there.

Mother presented the court with a prescription for oxycodone, which was valid at the time of her arrest. Though she did not produce a prescription for Xanax, Mother testified that she had been taking Xanax and oxycodone with valid prescriptions since 2007. Id. at 65. Mother explained that the medication helped her cope with anxiety after the 2007 domestic-violence incident with Neighbors. She also confirmed that she had a protective order against Neighbors and no longer saw him. Id. at 49.

That same day, the juvenile court entered an order finding B.N. and C.H. to be CHINS. The order included the following factual findings:

1. [H.C.] is a minor whose date of birth [is] December 5, 2007.
2. [B.N.] is a minor whose date of birth is July 31, 2004.
3. Their Mother is [M.C.].
4. Their Father is [Mr. Neighbors].
5. On May 26, 2011[,] [Mother] was arrested in her car for possession of a controlled substance, oxycodone, and possession of marijuana. [B.N.] was in the car with her when she was arrested.
6. [Mother] admitted that she used marijuana 2 times a day, but that she had a valid prescription for the oxyco-done.
7. She also knew that at the time of her arrest, her driver’s license was suspended.
8. [Mother] has a prior history with DCS regarding domestic violence between [Mother] and Mr. Neighbors. In 2007, an informal adjustment was completed by [Mother],
11. Since the beginning of this case the DCS FCM [Jeffries] has asked for but has not received the following: proof of a valid prescription for oxycodone (was presented in court at the fact finding); proof of a valid prescription for Xanax; proof of employment, a copy of her lease, and proof that [H.C.] is enrolled in Head Start.
12. [Mother] did not have her children complete a mental health assessment because she was confused about the referral.
13. [Mother] participated voluntarily with home based before the children were returned home, but after the children were moved back home she was confused about meeting with them.

Appellant’s App. p. 20-21.

Mother now appeals.

Discussion and Decision

Mother contends that the evidence is insufficient to support the juvenile court’s finding that B.N. and C.H. are CHINS.

Because a CHINS proceeding is a civil action, the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. Ind.Code § 31-34-12-3; In re N.E., 919 N.E.2d 102, 105 (Ind.2010). Upon review of a juvenile court’s CHINS determination, we consider only the evidence most favorable to the judgment and the reasonable inferences therefrom. In re T.S., 881 N.E.2d 1110, 1112 (Ind.Ct.App.2008). We neither reweigh the evidence nor reassess the credibility of the witnesses. Id. Here, the juvenile court made findings of fact and conclusions of law in adjudicating the children CHINS. When a juvenile court enters specific findings and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.2005). First, we determine whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Id. We will set aside the juvenile court’s judgment only if it is clearly erroneous. Id.

The juvenile court determined that the children were CHINS according to Indiana Code section 31-34-1-1, which provides:

A child is a child in need of services if before the child becomes eighteen (18) years of age:
(1) the child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive intervention of the court.

In finding that B.N. and C.H. were CHINS under this section, the juvenile court relied on the following facts: Mother was arrested and charged with possession of a controlled substance (oxycodone) and possession of marijuana, she admitted using marijuana in the past, her driver’s license was suspended, she had previous involvement with DCS regarding domestic violence with the children’s father, she had not provided all documentation requested by DCS, and she had not completed the referrals made by DCS or the services she had volunteered for.

We first examine whether the juvenile court’s findings were supported by the evidence. Specifically, Mother argues that Finding 11 is not supported by the evidence. The finding reads:

Since the beginning of this case the DCS FCM [Jeffries] has asked for but has not received the following: proof of a valid prescription for oxycodone (was presented in court at the fact finding); proof of a valid prescription for Xanax; proof of employment, a copy of her lease, and proof that [H.C.] is enrolled in Head Start.

Appellant’s App. p. 20. Mother directs our attention to the testimony of FCM Jef-fries. Jeffries testified that at each drug screen, Mother presented a valid prescription for both oxycodone and Xanax. Jef-fries stated that Mother had not given her documentation showing that Mother had a valid prescription for oxycodone at the time she was arrested. However, Mother presented this documentation to the court on October 17. Moreover, Jeffries clearly stated that Mother had provided her a letter showing that she was employed. See Tr. p. 41. From this, we conclude that within Finding 11, the juvenile court’s findings regarding oxycodone and proof of employment are not supported by the evidence.

We must next determine whether the remaining findings support the court’s judgment. We conclude that they do not. The first prong of Section 31-34-1-1 requires DCS to show that a child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision. The evidence presented at fact-finding does not meet this burden. Although Mother was charged with possession of marijuana and admitted using marijuana in the past, she tested negative at each drug screening. Further, Mother presented the court with a prescription for oxycodone, which was valid at the time she was arrested, and Mother was not charged with any crime relating to her possession of Xanax.

The other facts relied upon by the juvenile court also fail to establish that the children were impaired or endangered. With respect to Mother’s participation in services, Mother volunteered to participate in services after her arrest; these were not mandatory services required by DCS. To that end, the juvenile court did not find that Mother refused to participate in services, only that she was confused about what participation was required of her. Mother’s previous involvement with DCS stemmed from a domestic-violence incident four years ago in which the children’s father, William Neighbors, was violent toward Mother. Jeffries testified that to her knowledge, Mother no longer saw Neighbors. Mother confirmed this and further testified that she had a protective order against Neighbors. Finally, there was no evidence that Mother’s suspended driver’s license had any effect on the condition of the children.

In sum, there was simply no evidence that the children’s physical or mental condition was seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of Mother to supply the children with necessary food, clothing, shelter, medical care, education, or supervision. We therefore conclude that the juvenile court’s determination that the children are CHINS was clearly erroneous.

Reversed.

CRONE, J., and BRADFORD, J., concur.

      . At that time, Mother had been charged with possession of a controlled substance and possession of marijuana but had not been convicted of any charges.

      . DCS asks that we consider evidence presented at pretrial hearings and included in the juvenile court's dispositional order. We decline to do so. We consider only the evidence presented at fact-finding and relied upon by the juvenile court in determining that B.N. and C.H. are CHINS.

      . Mother’s participation in services, to the extent it would be relevant, would go to whether coercive intervention of the court was needed. We need not reach the second prong of Indiana Code section 31-34-1-1, however, as we conclude that DCS failed to prove the first prong of the section.


author: MAY, Judge. SULLIVAN, Senior Judge,

text:
    Rafael BOCANEGRA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A03-1108-CR-361.
    Court of Appeals of Indiana.
    June 22, 2012.

      Peter D. Todd, Elkhart, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Rafael Bocanegra appeals his conviction of forgery, a Class C felony. Bocanegra argues the State did not prove his intent to defraud. We affirm and remand.

FACTS AND PROCEDURAL HISTORY

Bocanegra applied for a job with Keystone RV Company (“Keystone”) in Gosh-en, Indiana. On the application, he listed his name as “John Giron” and provided a Social Security number (“SSN”). (State’s Exhibit 1.) He listed “Gonzalo Bocanegra” as an emergency contact person. (Id.) Bocanegra submitted with his application a Social Security card bearing the name John Giron and an identification card purportedly issued by the State of Ohio that bore the name John Giron. Keystone hired Bocanegra.

John Giron, a resident of Cicero, Illinois, received a letter from the Internal Revenue Service accusing him of failing to report income from Keystone. Giron filed a police report in Goshen and an investigation revealed Bocanegra had used Giron’s name and SSN on Keystone’s job application and on the Social Security card he provided to Keystone. Bocanegra admitted to the police that he was not Giron. He said a neighbor had given him a Social Security card and an identification card so he could get a job with Keystone.

The State charged Bocanegra with forgery, a Class C felony, and identity deception, a Class D felony, Ind.Code § 35-43-5-3.5 (2009). A jury found him guilty, and the trial court sentenced him only on the forgery conviction.

DISCUSSION AND DECISION

When an appellant challenges the sufficiency of evidence supporting a conviction, we do not reweigh the evidence or judge the credibility of the witnesses. Joslyn v. State, 942 N.E.2d 809, 811 (Ind.2011). We consider only the probative evidence and reasonable inferences drawn from the evidence that support the verdict. Id. We will affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

To convict Bocanegra of forgery, the State was required to prove beyond a reasonable doubt that (1) Bocanegra, (2) with intent to defraud, (3) made, uttered, or possessed a written instrument in such a manner that it purported to have been made (a) by another person (b) at another time (c) with different provisions or (d) by authority of one who did not give authority. Ind.Code § 35-43-5-2.

Proof of intent to defraud requires a showing the defendant demonstrated “intent to deceive and thereby work a reliance and injury.” Wendling v. State, 465 N.E.2d 169, 170 (Ind.1984) (emphasis added). Actual injury is not required; potential injury is enough. See Diallo v. State, 928 N.E.2d 250, 252 (Ind.Ct.App.2010) (“[T]here must be a potential benefit to the maker or potential injury to the defrauded party”) (quoting Jacobs v. State, 640 N.E.2d 61, 65 (Ind.Ct.App.1994) (emphasis added)).

In Lohmiller v. State, 884 N.E.2d 903 (Ind.Ct.App.2008), we addressed whether Lohmiller had intent to defraud. Lohmil-ler was licensed to practice as a nurse in Georgia. She moved to Indiana but did not acquire an Indiana nursing license. Lohmiller began working at the Carroll County Health Department and was promoted to a position that required her to have an Indiana license. She signed her name as “Rebecca Lohmiller RN, MSN” on at least twenty-seven occasions. Loh-miller had received a job description for her position, which indicated the employee must be a graduate of an accredited school of nursing and licensed in Indiana.

The Vital Records Clerk for the health department asked for a copy of her Indiana nursing license when Lohmiller was hired and on occasion throughout her employment. Lohmiller said her license was in a bank safety deposit box. After the department was unable to find a record of the license in the State’s records, Lohmiller was again asked for confirmation and she provided alternate names. Finally, after providing excuses for four years, Lohmiller confessed to the department that she was not a licensed nurse in Indiana. The State charged Lohmiller with forgery and practicing nursing without a license.

We found the State had proven her intent to defraud:

In sum, the evidence presented at trial shows Lohmiller’s elaborate scheme to pass herself off as a nurse registered in Indiana. After knowingly accepting a job that required the employee to be a nurse registered in Indiana, Lohmiller lied about her qualifications for four years. While in that position, she signed at least twenty-seven documents in which she held herself out to be an Indiana-licensed nurse. This evidence is sufficient to show that Lohmiller knowingly or intentionally made or uttered a written instrument in such a manner that it purports to have been made by authority of one who did not give authority.

Id. at 909.

The case before us is similar. The jury heard Bocanegra did not have the documents he needed to work legally in the United States and he used someone else’s documents, and it could reasonably have inferred Keystone was subject to potential penalties for hiring a person who was not legally permitted to work. There was sufficient evidence, in the form of potential injury to his employer, of his intent to defraud.

Bocanegra’s offense took place in 2010, and he argues a showing of actual injury to the defrauded party is now required. He correctly notes the statute in place at the time of an alleged criminal act controls the prosecution of an offense and the punishment therefor. Collins v. State, 911 N.E.2d 700, 708 (Ind.Ct.App.2009), trans. denied. On July 1, 2005, an amendment to Ind.Code § 35-43-5-2, the statute under which Bocanegra was charged with forgery, took effect. It created and defined the crime of counterfeiting, a Class D felony. 2005 Ind. Acts 1448.

Bocanegra argues the 2005 amendment evidences legislative intent to distinguish forgery as a Class C felony from the newer offense of counterfeiting. With the passage of the 2005 amendment, he argues, we had in place two different offenses, a greater and a lesser crime. In the lesser offense of counterfeiting, there need not be intent to defraud. Ind.Code § 35-43-5-2(a).

Bocanegra argues the sole purpose for the creation of the offense of counterfeiting was to permit prosecution when the State cannot prove intent to defraud, as until the statutory amendment in 2005, there was no crime of which to convict a defendant who intentionally deceived a victim and benefitted from such deception yet caused no harm. Bocanegra received a benefit from his deception; he obtained employment for which he was paid. But he claims the State did not prove Keystone sustained any actual injury, as Keystone received the labor from Bocanegra for which it bargained. The State did not charge Bocanegra with counterfeiting, and the jury was not instructed as to that offense.

We find persuasive the reasoning underlying Bocanegra’s argument, but we must decline to disregard those Indiana decisions after the passage of the counterfeiting statute in 2005 that indicate actual injury still need not be proven in order to convict of forgery. Panels of this court have continued after 2005 to recognize, at least in dicta, that potential injury is enough to prove intent to defraud for forgery purposes. See, e.g., Diallo v. State, 928 N.E.2d 250, 252-53 (Ind.Ct.App.2010):

“An intent to defraud involves an intent to deceive and thereby work a reliance and an injury.” Williams v. State, 892 N.E.2d 666, 671 (Ind.Ct.App.2008) (citing Wendling v. State, 465 N.E.2d 169, 170 (Ind.1984)). “[Tjhere must be a potential benefit to the maker or potential injury to the defrauded party.” Jacobs [v. State, 640 N.E.2d 61, 65 (Ind.Ct.App.1994) ]. Because intent is a mental state, the fact-finder often must “resort to the reasonable inferences based upon an examination of the surrounding circumstances to determine” whether — from the person’s conduct and the natural consequences therefrom — there is a showing or inference of the requisite criminal intent. M.Q.M. v. State, 840 N.E.2d 441, 446 (Ind.Ct.App.2006).

(Emphasis added.)

A post-2005 disciplinary order, In re Sniadecki, 924 N.E.2d 109, 118 (Ind.2010), suggests our Indiana Supreme Court still believes potential injury is enough. Snia-decki falsified documents, and directed his staff to create false documents, in order to obtain a loan so he could repay a client to whom he owed money. The finding Snia-decki had intent to defraud and committed forgery appears premised on injury that was only potential. The lender ultimately withdrew funding on May 19, 2008, because of an anonymous phone call suggesting there were falsehoods in the documentation. Sniadecki ultimately obtained a loan from a relative of his wife, and he paid his client the amount due on the promissory note.

Though there apparently was no actual injury, our Supreme Court found “[b]y the actions described above, Respondent committed forgery, see Indiana Code § 35-43-5-2,” and violated Professional Conduct Rules prohibiting committing a criminal act, i.e., forgery, that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. 924 N.E.2d at 118-19. And see In re Rawls, 936 N.E.2d 812, 816 (Ind.2010) (where Rawls “created a fraudulent receipt, criminally forged a client’s name on it, and submitted it to the Commission, acting as an agency of this Court, with the intent of deceiving the Commission.” Any injury to the Commission appeared to be only “potential.”).

We therefore hold potential injury remains a sufficient basis for a finding of criminal intent in a forgery prosecution. As the jury could have reasonably inferred Bocanegra’s misrepresentations subjected his employer to potential injury, we affirm his conviction of forgery and remand for vacation of the identity deception conviction.

Affirmed and remanded.

BROWN, J., concurs.

SULLIVAN, SR. J., dissents with separate opinion.

SULLIVAN, Senior Judge,

dissenting.

I respectfully dissent from the majority opinion, which affirms the conviction for forgery, a Class C felony. Ind.Code § 35-43-5-2(b) (2006).

Proof of intent to defraud requires a showing that the defendant demonstrated “intent to deceive and thereby work a reliance and injury.” Wendling v. State, 465 N.E.2d 169, 170 (Ind.1984) (emphasis added); see also Diallo v. State, 928 N.E.2d 250, 252 (Ind.Ct.App.2010). With regard to proof of the basic requirement of an intent to deceive, the majority opinion relies heavily on Lohmiller v. State, 884 N.E.2d 903 (Ind.Ct.App.2008), in which a panel of this Court concluded that the evidence was sufficient to sustain a conviction for forgery. Lohmiller is not controlling here, but it serves to illustrate an important point regarding Indiana Code section 35-43-5-2.

It is clear that the statute in place at the time of the alleged criminal act or acts is the statute which controls the prosecution of an offense and the punishment therefor. See Collins v. State, 911 N.E.2d 700, 708 (Ind.Ct.App.2009) (“The law [that] is in effect at the time that the crime was committed is controlling.”), trans. denied. Lohmiller involved acts by the defendant which occurred on or before June 29, 2004. On July 1, 2005, an amendment to Indiana Code section 35-43-5-2 took effect, creating and defining the crime of counterfeiting, a Class D felony. 2005 Ind. Acts 1448. Thus, at the time of Lohmiller’s offenses, the provision of Indiana Code section 35-43-5-2 creating and defining the crime of counterfeiting was not yet in effect, having been enacted and effective as of July 1, 2005. Lohmiller could not have been validly charged with or convicted of counterfeiting. That is not the case with the matter before us.

Here, Bocanegra convincingly argues that the 2005 statutory amendment evidences a clear intent to draw a line of demarcation between what was then the only offense, i.e., forgery as a Class C felony, and the lesser offense of counterfeiting. With the passage of the 2005 amendment, we then had in place two different offenses, a greater and a lesser crime. In the lesser offense of counterfeiting, there need not be an intent to defraud. Ind.Code § 35-43-5-2(a). I conclude that Bocanegra’s argument is correct as to the current state of the law.

Lohmiller addresses a finding of intent to defraud under the forgery provision of the statute. Until the statutory amendment in 2005, there was no crime of which to convict a defendant who intentionally deceived the “victim” and benefitted from such deception but caused no harm.

Here, Bocanegra certainly received a benefit from his deception in that he obtained employment for which he was paid. But even though Keystone relied upon the information provided by Bocanegra and hired him, I do not discern any injury sustained by Keystone. Keystone received the labor from Bocanegra for which it bargained.

Thus, even if we hold the forgery provision of the statute in play without regard to the applicable existence of the lesser offense of counterfeiting and apply the Lohmiller rationale to this evidence, a fatal omission is present. To obtain a forgery conviction the State must prove harm to the entity deceived. Here, that entity is the employer, Keystone. It is not relevant to prove that a third party, such as an unsuccessful applicant for the position filled by Bocanegra, was harmed. Under the facts of our case, it is clear that there was no intent to deceive any entity other than Keystone.

The evidence demonstrates that Keystone relied upon Bocanegra’s deception in hiring him. The fact remains, however, that Bocanegra performed the work for which he was hired and paid. I discern no legally cognizable harm to Keystone from that. One might deduce that by hiring Bocanegra, Keystone was incurring a prospective or possible inquiry and sanctions for hiring an illegal alien. See Jacobs v. State, 640 N.E.2d 61, 65 (Ind.Ct.App.1994) (stating that potential injury is sufficient to prove intent to defraud), trans. denied,; Lewis v. State, 169 Ind.App. 172, 346 N.E.2d 754, 759 (1976) (holding that proof of actual harm from the fraudulent act is “immaterial”). Nevertheless, such speculative “harm” does not meet the requirement for proof of a legal harm or injury.

The word “potential” is defined as “capable of coming into being; possible.” Black’s Law Dictionary 1206 (8th ed. 1999). This Court has said that a determination of factual issues “depend[s] upon probability NOT possibility or certainty.” Beaman v. Hedrick, 146 Ind.App. 404, 255 N.E.2d 828, 832 (1970) (emphasis in original). Thus, a mere “possibility” is not an adequate test for an act that allows conviction for a crime calling for a significant term of imprisonment. Accordingly, I would decline to follow those cases which suggest that a potential harm is of itself sufficient to support a forgery conviction as it is defined under the Indiana statute.

I conclude that there is insufficient proof of an injury to Keystone because it received the benefit of Bocanegra’s work regardless of his legal status, without any negative consequences set forth in the record. In my opinion, Bocanegra’s conviction is not sustained by the evidence.

For the reasons stated above, I would reverse Bocanegra’s conviction for forgery.

      . Ind.Code § 35-43-5-2(b).

      . The court found the identity deception conviction "would merge for sentencing purposes.” (Tr. at 294.) The court should have vacated the identity deception conviction, and we remand for that purpose. See Clark v. State, 752 N.E.2d 209, 210 (Ind.Ct.App.2001), trans. denied.

      . The State asserts “[a] company’s reliance on a defendant's claims to have proper credentials for employment is sufficient evidence of intent to defraud.” (Br. of Appellee at 7), citing Lohmiller, 884 N.E.2d at 908-09. There is no such statement in Lohmiller, and we decline the State's invitation to hold someone else's reliance on a defendant’s words or acts, without more, proves the defendant spoke or acted with criminal intent.

      . The State does not argue there was injury to any entity other than Keystone.

      . We acknowledge all rely on pre-2005 decisions, and none explicitly considered the effect of the counterfeiting statute.

      . The other decisions are unpublished: Arline v. State, 959 N.E.2d 402 (Ind.Ct.App.2011), Jones v. State, 957 N.E.2d 214 (Ind.Ct.App.2011), and Stewart v. State, 873 N.E.2d 1144 (Ind.Ct.App.2007), trans. denied. The finding of intent to defraud in Arline appears to be based on benefit to Arline rather than injury, potential or otherwise, to anyone. In Jones, he basis for the finding of intent to defraud is less clear, as both benefit and injury were discussed. But Jones was convicted of theft from the same victim based on the same forgery, suggesting there was actual injury. The Stewart panel was also less than explicit, but the facts of that case indicate both the benefit and the injury were only "potential.” Stewart presented counterfeit Postal Service money orders on several occasions, but it does not appear any were accepted.

      . The State did not charge Bocanegra with counterfeiting, and the jury was not instructed as to that offense.

      . However, I do not agree with the majority, as stated in footnote 2, that under the circumstances the identity deception conviction must be vacated. I would leave in place the identity deception conviction. I would do so in light of my view that the forgery conviction should be reversed.