Court of Appeals of Indiana | Memorandum Decision 19A-CR-1966 | January 30, 2020 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Sally Skodinski

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Courtney L. Abshire

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brett Michael Horein,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 30, 2020

Court of Appeals Case No.

19A-CR-1966

Appeal from the St. Joseph 

Superior Court

The Honorable David C. 

Chapleau, Judge

The Honorable Julie Verheye, 

Magistrate

Trial Court Cause No.

71D06-1903-CM-1167

Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1966 | January 30, 2020 Page 2 of 7

Statement of the Case

[1] Brett Horein (“Horein”) appeals his conviction, following a bench trial, for 

Class A misdemeanor conversion.

1

 Horein argues that there was insufficient 

evidence to support his conviction. Concluding that Horein’s argument is

merely a request to reweigh the evidence, we deny this request and affirm his 

conviction.

[2] We affirm.

Issue

Whether sufficient evidence supports Horein’s conviction.

Facts

[3] On February 19, 2019, Horein called his father, Bruce Horein (“Bruce”), and 

asked if he could go to Bruce’s house to use his laptop. Bruce agreed. Bruce—

who had had a prior incident with Horein that led to Bruce testifying in a 

criminal case against his son in January—arranged for Ronald Baker (“Baker”),

who was a friend of both Horein and Bruce, to be at the house when Horein 

arrived. Thereafter, Horein and his friend Lennie (“Lennie”) went to Bruce’s 

house. After Horein had used Bruce’s laptop, he walked over to a cabinet 

where Bruce kept his cell phones and electronics. In this cabinet, Bruce had a 

refurbished iPhone that he had previously purchased online for his wife, and 

1

IND. CODE § 35-43-4-3.
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the phone was still in its box. Horein took the box, opened it, took out the cell 

phone, and asked Bruce why he had Horein’s cell phone. Bruce told Horein, 

“That’s not your phone[.]” (Tr. Vol. 2 At 17). Horein responded, “How do 

you know? You have my phone.” (Tr. Vol. 2 at 17). Bruce again told Horein 

that the phone was not his and that he had purchased it for his wife. When 

Bruce approached Horein to take the phone, Horein “became very angry” and 

“came at” Bruce. (Tr. Vol. 2 At 18). Lennie intervened and pushed Horein 

away from Bruce. Horein took out his own cell phone that he had brought with 

him, threw it at Bruce, and said “this piece of crap is your phone.” (Tr. Vol. 2 

at 18). Horein then left Bruce’s house with Bruce’s refurbished iPhone and 

never returned it. Thereafter, Bruce contacted the police. 

[4] The State charged Horein with Class A misdemeanor conversion. On July 25, 

2019, the trial court held a bench trial, during which Bruce and Baker testified 

regarding Horein’s actions at Bruce’s house. Baker also testified he had been 

with Bruce when he had made the online purchase of the refurbished iPhone 

and that he knew Bruce had purchased it for his wife. Additionally, Baker 

corroborated Bruce’s testimony that Bruce had told Horein that the refurbished 

iPhone did not belong to Horein. The trial court found Horein guilty as 

charged, imposed a sentence of thirty (30) days, and ordered him to pay 

restitution. Horein now appeals.

Decision

[5] Horein argues that the evidence was insufficient to support his Class A

misdemeanor conversion conviction. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1966 | January 30, 2020 Page 4 of 7

When reviewing the sufficiency of the evidence to support a 

conviction, appellate courts must consider only the probative 

evidence and reasonable inferences supporting the verdict. It is 

the fact-finder’s role, not that of appellate courts, to assess 

witness credibility and weigh the evidence to determine whether 

it is sufficient to support a conviction. To preserve this structure, 

when appellate courts are confronted with conflicting evidence, 

they must consider it most favorably to the trial court’s ruling. 

Appellate courts affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a 

reasonable doubt. It is therefore not necessary that the evidence 

overcome every reasonable hypothesis of innocence. The 

evidence is sufficient if an inference may reasonably be drawn 

from it to support the verdict. 

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

and citations omitted) (emphasis in original).

[6] The conversion statute, INDIANA CODE § 35-43-4-3(a), provides that “[a] person 

who knowingly or intentionally exerts unauthorized control over property of 

another person commits criminal conversion, a Class A misdemeanor.” Thus, 

to convict Horein for conversion as charged, the State was required to establish 

beyond a reasonable doubt that Horein knowingly or intentionally exerted

unauthorized control over Bruce’s refurbished iPhone. “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.” I.C. § 35-41-2-2(b). “A person engages in 

conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious 

objective to do so.” I.C. § 35-41-2-2(a). 
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[7] Horein contends that the State failed to prove that he had the required intent

because he “reasonably believed” that the refurbished iPhone was his own. 

(Horein’s Br. 7). To support his argument, Horein cites to the statutory defense 

of mistake of fact in INDIANA CODE § 35-41-3-7, which provides that “[i]t is a 

defense that the person who engaged in the prohibited conduct was reasonably 

mistaken about a matter of fact, if the mistake negates the culpability required 

for commission of the offense.” A mistake of fact defense requires a defendant 

to prove that: (1) the mistake was honest and reasonable; (2) the mistake was

about a matter of fact; and (3) the mistake negates the culpability required to 

commit the crime. See Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997); Nolan 

v. State, 863 N.E.2d 398, 404 (Ind. Ct. App. 2007), trans denied. A mistake of 

fact defense is a question for the finder of fact, and we review the issue by the 

same standard as we do with a challenge to the sufficiency of the evidence. 

Saunders v. State, 848 N.E.2d 1117, 1121 (Ind. Ct. App. 2006), trans. denied.

[8] Horein “acknowledges that the defense of ‘mistake of fact’ was not specifically 

presented at trial,” but he contends that the trial court “should have considered 

it” nonetheless. (Horein’s Br. 7). We disagree. Because Horein is raising this 

affirmative defense for the first time on appeal, he has waived it. See Lafary v. 

Lafary, 476 N.E.2d 155, 159 (Ind. Ct. App. 1985) (providing that affirmative 

defenses must be raised at trial and cannot be raised for the first time on 

appeal).

[9] Waiver notwithstanding, Horein has failed to show that any mistake of fact was 

reasonable. “Reasonableness [of a mistake of fact] is an objective test inquiring 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1966 | January 30, 2020 Page 6 of 7

what a reasonable man situated in similar circumstances would do.” Nolan, 863 

N.E.2d at 404. Here, the evidence showed that Bruce had previously purchased 

a refurbished iPhone for his wife. The phone was in its box and placed in 

Bruce’s cabinet. Horein, who had gone to Bruce’s house with his own cell 

phone, went into Bruce’s cabinet and took the refurbished iPhone out of the 

box. When Horein stated that the phone was his, Bruce told Horein that it was 

not and that he had purchased it for his wife. When Bruce approached Horein 

to take the phone, Horein “became very angry” and “came at” Bruce. (Tr. Vol. 

2 At 18). Horein took out his own cell phone that he had brought with him, 

threw it at Bruce, and said “this piece of crap is your phone.” (Tr. Vol. 2 at 18). 

Horein then left Bruce’s house with Bruce’s refurbished iPhone and never 

returned it. Baker, who had been with Bruce when he purchased the 

refurbished iPhone online and was at Bruce’s house the day that Horein was 

there, corroborated Bruce’s testimony. The trial court, as finder of fact,

determined that the State had “met its burden of establishing that the elements 

of conversion, that Mr. Brett Horein [had] knowingly or intentionally exerted 

unauthorized control over the property of Bruce Horein.” (Tr. Vol. 2 at 37).

Horein’s argument is simply a request to reweigh the evidence and reassess the 

trial court’s credibility determination, which we will not do. See Drane, 867 

N.E.2d at 146. Accordingly, we affirm Horein’s Class A misdemeanor 

conversion conviction.
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[10] Affirmed.

May, J., and Crone, J., concur.