Attorney for Appellant Attorneys for Appellee
Thomas J. O'Brien Steve Carter
O'Brien & Dekker Attorney General of Indiana
Grant H. Carlton
Deputy Attorney General
Indiana Supreme Court
Appellant (Defendant below),
State of Indiana,
Appellees (Plaintiff below).
Appeal from the Tippecanoe Circuit Court, No. 79C01-0011-CF-46
The Honorable Donald L. Daniel, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 79A02-0303-CR-251
January 6, 2005
Following a jury trial, the defendant, Mirtha McHenry, a bank teller, was convicted
of forgery, a class C felony, and theft, a class D felony, as
a result of her actions relating to an unauthorized withdrawal of $6,500 from
the account of a bank customer. Concluding that the evidence was insufficient
to establish her guilt of either crime, the Court of Appeals reversed the
convictions and remanded with instructions that she be discharged.
See footnote We grant transfer
ffirm the trial court.
See footnote 1. Sufficiency of Evidence
In her appeal from the convictions, the defendant alleges three grounds for r
(1) insufficient evidence; (2) refusal to strike two jurors for cause; and (3)
erroneous admission of surveillance videotape.
The defendant contends that neither of her convictions were supported by sufficient evidence.
Upon a challenge to the sufficiency of evidence to support a conviction,
a reviewing court does not reweigh the evidence or judge the credibility of
the witnesses, and respects "the jury's exclusive province to weigh conflicting evidence."
We have often emphasized that appe
llate courts must consider only the probative evidence
and reasonable inferences supporting the verdict.
See footnote Expressed another way, we have stated
that appellate courts must affirm "if the prob
ative 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."
Evidence at her jury trial established that the defendant, a bank teller, withdrew
$6,500 from the account of Charles Landes. The defendant testified that someone
had come to her wan t ing to make this withdrawal, that she had filled
in the withdrawal slip, and that she had the customer sign it and
gave him the money. Upon receiving his bank statement and discove r ing a
$6,500 withdrawal from his account, Landes immediately r e ported the error to the bank
and signed an affidavit of forgery stating that the signature on the wit h drawal
slip was not his and that he did not receive any of the
proceeds. The withdrawal slip was time-stamped 4:44 p.m. The bank's videotape
showed no one at the defendant's teller window when the transaction o c curred.
Bank records also disclosed that the defendant had accessed and viewed this customer's
account records twice during the two weeks before the wit h drawal.
Although reciting that "in reviewing the sufficiency of the evidence, we will not
reweigh the evidence or judge the credibility of witnesses,"
See footnote the Court of Appeals
reversed the convi
ctions, speculating that the withdrawal slip "may have been received earlier
and only stamped at 4:44 p.m." and that the defendant's prior inquiries into
the customer's account balance "may have been precipitated by a phone call request."
In reversing the jury's verdict, the Court of Appeals failed to restrict its
consideration to only the evidence and reasonable inferences favorable to the trial court's
verdict, but instead r
eweighed the evidence, improperly substituting its own judgment for that
of the jury. While the jury could have drawn the same
inferences as the Court of Appeals, they did not. They returned a
unanimous verdict of guilt on each count.
The defendant urges that the State failed to present evidence that she intended
to defraud the customer or the bank or that she took the money.
The State responds (and the defendant concedes) that intent to defraud may
be proven by circumstantial evidence,
See footnote and the State argues that the defendant acknowledged
sing the customer's account and performing the transaction that removed $6,500 from the
accountmoney that the customer did not receive. And the videotape enabled the
jury to infer that there was no customer at the defendant's teller window
when the withdrawal was made.
Finding that 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, we conclude that the evidence was sufficient to support the
judgment. 2. Failure to Exclude Jurors for Cause
The defendant contends that the trial court committed reversible error in allowing two
jurors who were depositors in the bank to serve as jurors. During
jury selection, when two jurors stated that they had accounts at the bank,
the defendant challenged them for cause, alleging they had a personal interest.
The trial court denied her challenges, and the defendant thereafter exhausted her peremptory
challenges. She argues that these two jurors should have been excused because
they each had a personal interest in the victim of her alleged victim
crimes. When the defendant challenged these jurors for cause, the trial court
questioned each about their status as account holders and the possible impact of
the bank's loss upon them. Each juror assured the court that this
would neither influence them as jurors nor affect their personal business with the
The defendant acknowledges that whether to excuse a juror for cause rests within
the sound discretion of the trial court.
See footnote She urges, however, that the
financial interests of these j
urors as bank depositors raised a presumption of implied
bias, citing Woolston v. State.
Woolston involved a juror who had a close relationship to the State Police
due to his wife's employment. The juror was familiar with three of
the officers who were to testify for the State and knew that his
wife had worked on some of the evidence in the case. Noting
that a challenge for cause had been held to exist in cases where
a juror's spouse had been hired for future employment by the prosecutor and
in another where the juror's wife was a second cousin to a member
of the prosecutor's staff, Woolston found that, based on the juror's relationship to
the State, it was error for the trial court to deny the challenge
In the present case, the jurors were challenged not for their relationship with
the State but for their status as depositors in the bank where the
alleged crimes occurred. The trial court co
nsidered the challenge, questioned the jurors,
and then denied the challenge. We decline to find any abuse of
discretion in this ruling. 3. Surveillance Videotape
The defendant also contends that the trial court committed reversible error in admitting
the bank's surveillance video. The video shows that no person was at
the defendant's teller window at the time she entered the questioned transaction.
The defendant's objection at trial was that the videotape was not a business
record and that there was an inadequate foundation, the particulars of which were
not specified. On appeal, the defendant does not present argument as to
the business record issue but rather argues generally that because the state did
not present information to support the reliability of the surveillance tape other than
the affidavit of a records custodian, it failed to lay a proper foundation
for the admission of the video.
The parties agree that under a "silent witness" theory, videotapes may be admitted
as substantive evidence, but "there must be a strong showing of authenticity and
competency" and that when automatic cameras are involved, "there should be evidence as
to how and when the camera was loaded, how frequently the camera was
activated, when the photographs were taken, and the processing and changing of custody
of the film after its removal from the camera."
The State argues that witness testimony established the videotape's authenticity. The bank
manager removed the videotape, and a police detective checked it to assure that
it was the tape covering the date in question. The detective then
watched the tape to match the transa
ctions and customers' account numbers with the
representations on the videotape. In addition, the bank's custodian of records verified
by affidavit that the tape was a regularly conducted activity of the bank
and that she had examined the records to verify its trustworthiness.
Rulings on the admission of evidence are subject to appellate review for abuse
See footnote We are not persuaded that the trial court abused its
discretion in admitting the videotape.
We grant transfer and affirm the judgment of the trial court.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
McHenry v. State, 797 N.E.2d 852, 855 (Ind. Ct. App. 2003).
As an experiment, this opinion departs from the author's usual style of
citation and footnote use. Cf. Indiana Appellate Rule 22. Generally adhering
to the footnote recommendations of Bryan Garner, The Winning Brief, 139-47 (2d ed.
2004), all citations unessential to the text are placed in footnotes, and substantive
matter that otherwise might appear in footnotes is included in the text.
This revised format does not meet with universal approval. See Richard A.
Posner, Against Footnotes, 38 Court. Rev. 24 (Summer 2001). The public, the
bench, and the bar are invited to comment to the Supreme Court Administrator,
315 State House, Indianapolis, IN 46204.
Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind. 2001).
Bald v. State, 766 N.E.2d 1170, 1173 (Ind. 2002); Raines v. State,
514 N.E.2d 298, 299 (Ind. 1987); Loyd v. State, 272 Ind. 404, 407,
398 N.E.2d 1260, 1264 (Ind. 1980), cert. denied, 449 U.S. 881, 101 S.Ct.
231, 66 L.Ed.2d 105.
Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000).
McHenry, 797 N.E.2d at 854.
Id. at 855 (emphasis added).
Wendling v. State, 465 N.E.2d 169 (Ind. 1984).
Wisehart v. State, 693 N.E.2d 23, 55 (Ind. 1998).
453 N.E.2d 965, 968 (Ind. 1983).
Brief of Appellant at 15; Brief of Appellee at 7.
Edward v. State, 762 N.E.2d 128, 136 (Ind. Ct. App. 2002).
McManus v. State, 814 N.E.2d 253, 264 (Ind. 2004); Janes v. State,
780 N.E.2d 373, 376 (Ind. 2002).