The trial court granted summary judgment to the plaintiff and awarded it treble damages and attorney’s fees under the Indiana Crime Victims’ Compensation Act, finding that the undisputed facts established that the defendant had committed criminal fraud. We reverse the judgment on the fraud claims because there are genuine issues of material fact as to whether the defendant acted with the requisite criminal intent.
Even assuming FMBs designated evidence clearly establishes these alleged badges of fraud, it is not entitled to summary judgment. As we recently explained, “the mens rea element for a criminal offense is almost inevitably, absent a defendant’s confession or admission, a matter of circumstantial proof.” Hampton v. State, 961 N.E.2d 480, 487 (Ind. 2012). Therefore, finding criminal intent in the absence of a confession invariably requires weighing evidence, judging witness credibility, and drawing reasonable inferences from the facts, all of which are improper in considering a motion for summary judgment. E.g., Bell v. Northside Fin. Corp., 452 N.E.2d 951, 953 (Ind. 1983). Accordingly, summary judgment is almost never appropriate where the claim requires a showing that the defendant acted with criminal intent or fraudulent intent. White, 555 N.E.2d at 457-58; see also Jones, 547 N.E.2d at 891 (“[B]efore such a motion could be granted it would have to be clear that all the ‘badges of fraud’ pointed to a finding of intent with no inference of a pure motive possible.”).
In sum, although FMB’s evidence tends to show three badges of fraud, it is not sufficient to warrant entry of summary judgment on the element of mens rea. Drawing all reasonable inferences in favor of the nonmoving party, it is possible that the trier of fact could find a simple breach of contract here instead of criminal fraud, regardless of how strong the badges of fraud may be. Cf. Tracy v. Morell, 948 N.E.2d 855, 859-61, 863-64 (Ind. Ct. App. 2011) (holding evidence was sufficient to sustain finding that defendant had not acted fraudulently on basis of his testimony even though such testimony was dubious and self-serving when compared to over-whelming objective factors suggesting otherwise).
We emphasize that the issue here is whether summary judgment was proper. It is not how strong or weak the badges of fraud are. FMB may be able to offer circumstantial evidence tending to demonstrate strong indicia of fraud. But determining whether those facts actually establish that Klinker committed criminal fraud is a question for the trier of fact. Accordingly, we do not hold that FMB’s evidence would be legally insufficient to sustain a finding of fraud at the conclusion of trial. We hold only that the evidence designated by the movant at the summary judgment stage in this case does not justify dispensing with the trial altogether. [Footnote omitted.]
Shepard, C.J., and Dickson, Rucker, and David, JJ., concur.