FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LESA LUX JOHNSON STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARCUS L. SANDERS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-0206-CR-514
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION NO. 4
The Honorable Patricia Gifford, Judge
Cause No. 49G04-0102-CF-46449
February 7, 2003
OPINION - FOR PUBLICATION
MATHIAS, Judge
Marcus L. Sanders (“Sanders”) was convicted of forgery,[1] as a Class
C felony, and theft,[2] as a Class D felony, in Marion Superior Court. He
was sentenced to four years, with two years suspended, for forgery and 547
days executed for theft in the Department of Correction, both counts to be
served concurrently. He now appeals raising two issues, which we restate
as:
I. Whether the trial court properly considered in its determination
of guilt a letter written to the judge by Sanders; and,
II. Whether the State presented sufficient evidence of Sanders’s
mens rea to satisfy the “intent” element of forgery and theft.
Finding that the court properly considered Sanders’s letter and that
there was sufficient evidence of Sanders’s intent, we affirm.
Facts and Procedural History
On January 17, 2001, Sanders deposited a $3500 check, dated January
16, 2001 and made out in his name, at the Harvester Credit Union. The
check was drawn on the account of “The Herb Shop” and bore “William
Parker’s” signature. Sanders withdrew $1000 from the account the day he
deposited the check, $1000 one day after he deposited the check, $1000 two
days after he deposited the check, and the remaining $500, three days after
he deposited the check. Subsequently, the $3500 check was found to be
counterfeit.
Sanders claimed that he received the check from an Alex Cox (“Cox”).
Sanders stated that he had met Cox in November of 2000, while working as a
waiter at Red Lobster. Tr. p. 6. Sanders additionally alleged that he was
having a secret sexual relationship with Cox. Tr. p. 6. The $3500 check
did not bear Cox’s name, and Sanders was unable to produce any other
information concerning Cox. Tr. pp. 21-22.
Detective Francis Simmons was unable to locate any “Alex Cox” through
a check of the Bureau of Motor Vehicles, the records of local utility
companies, or the Marion County Justice System. Furthermore, “The Herb
Shop” was not located at the address listed on the check, and there was no
record of “The Herb Shop” with the Better Business Bureau.
The State charged Sanders on February 23, 2001, with Class C felony
forgery and Class D felony theft. Sanders waived a jury trial and
proceeded to a bench trial on May 3, 2002. During the trial, Sanders’s ex-
girlfriend, Kimberly Taylor, testified that Sanders had showed her the
$3500 check in late November. Tr. pp. 41-42.
Before announcing the court’s verdict, the trial court noted:
Well I would agree that the case does turn on the credibility of
defendant in this matter. I [have] noted from the testimony that when
the defendant testified here today that he stated under oath that he
had been employed at Red Lobster since 1999[;] however, in the letter
that he admitted he wrote to me on April the 17th in the year 2001, he
indicated that he had been employed with O’Charley’s as a waiter for
two and a half years and upon his release he would maintain his
employment with the company.
Tr. pp. 54-55. After noting this inconsistency, as well as several other
reasons to doubt the credibility of Sanders, the trial court found Sanders
guilty of forgery, as a Class C felony, and theft, as a Class D felony.
Sanders was sentenced to four years, with two years suspended, on the
forgery charge, and 547 days executed on the theft charge, both counts to
be served concurrently. Sanders now appeals.
Discussion and Decision
Sanders argues that the trial court’s consideration of the April 17,
2001 letter, which Sanders wrote to the judge on his own initiative,
constituted an improper use of judicial notice, and that the State
presented insufficient evidence of his mens rea to prove the “intent”
element of forgery and theft.
I. Judicial Notice
A court may take judicial notice of a fact. A judicially-noticed
fact must be one not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial court, or
(2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. Ind. Evidence Rule 201(a)
(2001). Judicial notice excuses the party having the burden of
establishing a fact from the necessity of producing formal proof.
Hutchinson v. State, 477 N.E.2d 850, 854 (Ind. 1985).
A trial judge may take judicial notice of the pleadings and filings
in the very case that is being tried. Owen v. State, 272 Ind. 122, 129,
396 N.E.2d 376, 381 (1979). The court may take judicial notice of a fact,
or of the contents of the pleadings and filings in the case before it, and
a rebuttable presumption arises, which requires the defendant to come
forward with evidence to dispute the presumption. Id. (citing Sumpter v.
State, 264 Ind. 117, 123, 340 N.E.2d 764, 769 (1976)).[3]
Under the holding of Owen, the court in the case at bar may take
judicial notice of the April 17, 2001 letter in its file[4] if the
requirements of Indiana Evidence Rule 201(a) have been met.[5] Of course
the issue of whether Sanders worked at O’Charley’s for two and a half years
is not a fact suitable for judicial notice. However, the court did not
take judicial notice of this fact; rather, it took judicial notice of the
fact that Sanders wrote the court a letter claiming that he had worked at
O’Charley’s for two and a half years. We believe that this is a fact
capable of ready and accurate determination, as required by Indiana
Evidence Rule 201(a), by simply asking Sanders if he had written the
letter—as the trial court did. Tr. p. 44.
Thus, because the trial court properly considered information in its
own file, and the information within the file met the requirements of
Indiana Evidence Rule 201(a), the court’s consideration of the April 17,
2001 letter from Sanders was proper.
II. The Intent to Deprive Element of Forgery
Sanders argues that the State did not present sufficient evidence of
his mens rea to establish the “intent” element of forgery. Our standard of
review for sufficiency claims is well settled. In reviewing a claim of
insufficient evidence, we will affirm the conviction unless, considering
only the evidence and the reasonable inferences favorable to the judgment,
and neither reweighing the evidence nor judging the credibility of the
witnesses, we conclude that no reasonable fact finder could find the
elements of the crime proven beyond a reasonable doubt. Tyson v. State,
766 N.E.2d 715, 717-18 (Ind. 2002) (citing Jenkins v. State, 726 N.E.2d
268, 270 (Ind. 2000)).
To convict a defendant of forgery, the State must prove beyond a
reasonable doubt that the defendant, with the intent to defraud, made or
uttered a written instrument in such a matter that it purports to have been
made by another person. Ind. Code § 35-43-5-2 (1998). Intent in a forgery
prosecution, or in any crime for that matter, may be proven by
circumstantial evidence. Williams v. State, 541 N.E.2d 921, 923 (Ind.
1989) (citing Wendling v. State, 465 N.E.2d 169, 170 (Ind. 1984)).
Specifically, Sanders asserts that the State did not present
sufficient evidence to prove that he knew the $3500 check was counterfeit.
We disagree. Although Sanders stated that he received the check from Cox,
the check was made out to Sanders, and it didn’t have Cox’s signature on
it. Secondly, Cox was never located by the police investigation. Further
still, “The Herb Shop” was not located at the address listed on the check.
Finally, Sanders’s own witness testified that she saw the check in late
November - despite the fact that the check was dated for January 16, 2001.
Thus, sufficient evidence of Sanders’s intent was presented to support his
conviction for forgery and theft.
Conclusion
The court properly considered Sanders’s April 17, 2001 letter and
there was sufficient evidence to establish Sanders’s conviction of forgery,
as a Class C felony, and theft, as a class D felony.
Affirmed.
BAKER, J., and RILEY, J., concur.
-----------------------
[1] Ind. Code § 35-43-5-2 (1998).
[2] Ind. Code § 35-43-4-2 (1998).
[3] Appellant cites State v. Hicks, 525 N.E.2d 316, 317 (Ind. Ct. App.
1988), Hutchinson v. State, 477 N.E.2d 850, 854 (Ind. 1985), and Szymenski
v. State, 500 N.E.2d 213, 215 (Ind. Ct. App. 1986). Appellant asserts that
these cases stand for the proposition that it is impermissible for a trial
court to take judicial notice of a letter in its file. Br. of Appellant at
7. However, the three cases cited by appellant concern instances where the
trial court took judicial notice of its own records from a different case.
See Hicks, 525 N.E.2d at 317; Hutchinson, 477 N.E.2d at 854; Szymenski, 500
N.E.2d at 215. Thus, because the case at bar concerns a letter in the
court’s current file, and not a letter from another case, the three cases
cited by appellant are not on point. Owen, stating that a court may take
judicial notice of documents in its file, is controlling law, and the only
issue is whether the requirements of Indiana Evidence Rule 201(a) have been
met. See Owen, 396 N.E.2d at 381.
[4] A court may take judicial notice whether requested or not. Ind.
Evidence Rule 201(c).
[5] The State claims that Indiana Evidence Rule 201(d) “qualifies”
Sanders’s letter to be admitted. Indiana Evidence Rule 201(d) states: “[a]
court shall take judicial notice if requested by a party and supplied with
the necessary information.” Br. of Appellant at 6. The State’s
interpretation of Indiana Evidence Rule 201(d) is erroneous. Indiana
Evidence Rule 201(d) compels the court to take judicial notice when the
requirements of Indiana Evidence Rule 201(a) have been met and a request
has been made by one of the parties; Indiana Evidence Rule 201(d) is not a
separate category of judicial notice within itself.
