Vlietstra v. State

800 N.E.2d 972, 2003 Ind. App. LEXIS 2408, 2003 WL 23024204

• Court: Indiana Court of Appeals
• Decided: December 30, 2003
• Docket: 46A04-0302-CR-54
• Status: Published

Opinions

OPINION

SULLIVAN, Judge.

Following a jury trial, Jeffrey A. Vliets-tra was convicted of four counts of Receiving Stolen Property, a Class D felony.¹ Upon appeal, Vlietstra presents several issues for our review, which we restate as: (1) whether the trial court improperly admitted hearsay evidence; and (2) whether the evidence is sufficient to support Vliets-tra's convictions.

We reverse.²

The record reveals that in the spring of 2001, Vlietstra told Richard Newenhouse that he had some John Deere tractors which he wished to sell. Mr. Newenhouse had previously purchased a Jeep from Vlietstra. Vlietstra eventually sold Mr. Newenhouse three John Deere tractors: a model number 425, which was sold for $2,000; a model number 445, which was also sold for $2,000; and a model number 4200, which was sold for $5,000. The tractors were delivered on three separate occasions. Mr. Newenhouse also received a front-end loader and a "brush hog" rotary mower from Vlietstra to attach to one of the tractors. Mr. Newenhouse sold one of the tractors, model number 425, to his father-in-law for $2,000. Mr. Newenhouse attempted to "wip[el out" the PIN number³ on one of the tractors with a marker because he "figured there was something wrong with [the tractors]...." Transcript at 22.

On November 1, 2001, the police contacted Mrs. Newenhouse and accompanied her to the Newenhouses' home. One of the officers, Indiana State Police Detective Brian Olehy, received Mrs. Newenhouse's permission to check the tractors to determine if they had been stolen. Over Vliets-tra's objections, Detective Olehy testified that he checked with the National Crime Information Center ("NCIC") and determined that the model number 445 tractor, the model number 4200, the front-end loader, and the mower had all been reported as stolen. Detective Olehy then confiscated the items so that they could be returned to their owners. The Newenhouses told the police that they had received the items from Vlietstra The Newenhouses did not tell the police about the third tractor, model number 425, which had been sold to Mrs. Newenbouse's father. Nor did they speak of it when deposed by Vlietstra's trial counsel.

On November 21, 2001, the State charged Vlietstra with four counts of receiving stolen property. Count I pertained to the front-end loader; Count II pertained to the model 445 tractor; Count III pertained to the model 4200 tractor; and Count IV pertained to the mower. Approximately one week before trial, Captain Bernard Johnsen, Deputy Chief of the St. John Police Department, received a telephone call from Vlietstra, who was in jail at that time. Vlietstra informed Captain Johnsen of the tractor which Mr. Newenhouse had sold to his father-in-law. Vlietstra told Captain Johnsen that the tractor in question was a model 425 John Deere which had been taken from Klug Implement in Michigan. Vlietstra denied any involvement in the situation. A jury trial was held on September 17 and 18, 2002. The jury found Vlietstra guilty as charged, and on December 6, 2002, the trial court sentenced him to two years incarceration on each count, to run consecutively, for a total of eight years.⁴

Vlietstra claims that the trial court erred in admitting into evidence that portion of Detective Olehy's testimony wherein he referred to information he learned from the NCIC. At trial, Detective Olehy testified that he learned that the two tractors, the front-end loader, and the mower on the Newenhouses' property were stolen by running the items' information through the NCIC database. Vlietstra claims that the trial court erred in overruling his hearsay objections to this testimony. Decisions regarding the admissibility of evidence are within the trial court's sound discretion and will not be reversed absent an abuse of that discretion. Cockrell v. State, 743 N.E.2d 799, 804 (Ind.Ct.App.2001). Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Id. (citing Ind. Evidence Rule 801(c)). - Hearsay which does not fall within an exception to the hearsay rule is inadmissible. Id. (citing Ind. Evidence Rule 802).

In support of his claim that information received from the NCIC is hearsay, Vliets-tra cites Broecker v. State, 161 Ind.App. , 314 N.E.2d 428 (1974), and Gibbs v. State, 426 N.E.2d 1150 (Ind.Ct.App.1981). In Broecker, the defendant appealed his conviction for auto theft, claiming in part that testimony at his trial referring to information received from the NCIC was inadmissible hearsay. The Broecker court held that the defendant had failed to properly preserve the error for appeal. 161 Ind.App. at 208, 314 N.E.2d at 429. Nevertheless, the court addressed the merits of the defendant's claim and concluded that the evidence was not offered to prove the truth of the matter asserted. 161 Ind.App. at 209, 314 N.E.2d at 430. The court further held that even if the evidence had been erroneously admitted, it was harmless error. Id. Similarly, in Gibbs, the defendant claimed that the trial court erred in allowing a police officer to testify as to information he had garnered from the NCIC. The Gibbs court held that the officer's testimony was cumulative of other evidence and at most harmless error. 426 N.E.2d at 1157. Thus, neither of the cases cited by Vlietstra specifically holds that information from the NCIC is hearsay.

Be that as it may, we conclude that Detective Olehy's testimony regarding the information he received from the NCIC was, by definition, hearsay⁵ It was a statement ⁶ made out of court and offered to prove the fact that the property in question was stolen. The trial court thus erred in admitting such into evidence. At trial, the State made no attempt to establish that the NCIC information fit within one of the various exceptions to the hearsay rule. Upon appeal, the State makes no argument that the NCIC testimony was not hearsay or fit within any exception to the hearsay rule but argues solely that the admission of the NCIC information was at most harmless error.

Before we address the question of harmless error, we consider whether the evidence, absent Detective Olehy's improperly admitted testimony concerning information he learned from the NCIC, is insufficient to support Vlietstra's convictions for receiving stolen property. The statute defining this crime reads, "A person who knowingly or intentionally receives, retains, or disposes of the property of another person that has been the subject of theft commits receiving stolen property, a Class D felony." IC. § 85-48-4-2(b). Thus, to convict Vlietstra, the State had to prove the property at issue in the present case was the subject of a theft.⁷

In response to Vlietstra's claim of insufficient evidence, the State points to several pieces of evidence introduced at trial: that Vlietstra sold the property to Mr. Newen-house for less than fair retail value; that Mr. Newenhouse paid for the property in cash; that no paperwork was executed for the sale of the property; that Vlietstra delivered the two tractors at issue here on separate occasions; that Vlietstra told Mr. Newenhouse that he would deliver a mower deck for one tractor but instead delivered the rotary mower and front-end loader; that the tractors appeared relatively new and came with keys and operating manuals; that the police confiscated the property in question and "returned it to the original owners," Appellee's Brief at 17; and that Viietstra told Captain John-sen about the third tractor which Mr. Newenhouse had sold to his father-in-law.

We fail to see how some of the evidence cited by the State establishes that the property in question was stolen. That the tractors were delivered on separate occasions and that Vlietstra delivered attachments different from what was agreed to seem to us irrelevant to the issue of whether the property was stolen. Similarly, that the tractors were delivered with keys and operating manuals does not support an inference that they were stolen. The fact that Mr. Newenhouse paid in cash is a relatively benign fact, which neither supports nor refutes an inference that the property paid for was stolen. Although the State's argument on this point is not entirely clear, the fact that no "paperwork" was executed is similarly a neutral factor. The State does not suggest that one is required to execute any paperwork when selling a tractor and/or attachments thereto. Though, if stolen tractors were being sold, one would not expect the deal to be memorialized in writing. The fact that the tractors appeared relatively new and were sold for less than fair retail value might raise suspicion regarding the transaction. Yet this does not establish that the property was stolen.

As far as the evidence regarding the conversation between Vlietstra and Captain Johnsen, this too does not establish that the property was stolen.⁸ Of all the items involved, the hearsay evidence would suggest that only two were reported stolen from the same county.⁹ Moreover, the evidence which is claimed to establish the situs of the thefts for which Vlietstra was charged came from the NCIC. It too was inadmissible hearsay and cannot be used to support the convictions. Therefore, the fact that Vlietstra knew certain details concerning the theft of the tractor which was eventually sold to Mr. Newenhouse's father-in-law cannot be used in conjunction with inadmissible evidence to establish that the property was stolen.

A slightly more probative piece of evidence is Detective Olehy's testimony that he confiscated the items in question until they "could be turned over to the rightful owners." Transcript at 186. The fact that the property had "rightful" owners suggests that neither Vlietstra nor the New-enhouses were the rightful owners. However, Detective Olehy's knowledge of the "rightful" owners came from the NCIC, information which we have concluded was improperly admitted hearsay and which cannot be used to support the convie-tions.¹⁰

Considering the evidence most favorable to the verdict, and the reasonable inferences drawn therefrom, we conclude that, although there is a suspicion that the tractors and other items were stolen (a suspicion which could have been readily proven by calling the owners of the property to testify), the State failed to prove beyond a reasonable doubt that the property in question was stolen and that Vlietstra knew this. See Cockrell, 743 N.E.2d at 806-07 (speculation is insuffi-clent to support convictions, and if after considering evidence supporting the verdict and reasonable inferences therefrom, we conclude that no reasonable trier of fact could find each element of the crime beyond a reasonable doubt, we may not affirm the conviction). Vlietstra's convie-tions for receiving stolen property must therefore be reversed. See United States v. Davis, 568 F.2d 514 (6th Cir.1978).

The judgment of the trial court is reversed and the cause is remanded with instructions to vacate the convictions and the sentences thereon.

RILEY, J., concurs. FRIEDLANDER, J., dissents with opinion.

1 . IC. § 35-43-4-2(b) (Burns Code Ed. Repl. 1998).

2 . Because of this result, we do not address the other issues Vlietstra presents upon appeal.

3 . A PIN number is similar to a VIN number on an automobile.

4 . Also on December 6, 2002, Vlietstra filed in open court a motion for judgment on the evidence, which the trial court treated as a motion to correct error. The trial court denied this motion on December 12, 2002.

5 . Courts in other jurisdictions have likewise concluded that, whether or not NCIC information fits within any exception to the hearsay rule, such information is hearsay. See, e.g., United States v. Davis, 568 F.2d 514 (6th Cir.1978); United States v. Johnson, 413 F.2d 1396 (11th Cir.1969) (noting that NCIC information was double hearsay in that witness testified as to what he learned from NCIC and NCIC in turn gathered information from other police departments); State v. Broussard, 819 So.2d 1141 (La.Ct.App.2002); Sanders v. State, 786 So.2d 1078 (Miss.Ct.App.2001); Dillingham v. Commonwealth, 995 S.W.2d 377 (Ky.1999), cert. denied 528 U.S. 1166, 120 S.Ct. 1186, 145 L.Ed.2d 1092 (2000); State v. Underwood, 286 N.J.Super. 129, 668 A.2d 447 (1995); Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995) (approving trial court's refusal to admit NCIC printout where proponent failed to establish proper basis for admitting such under the business records exception), cert. denied 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996); Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986) (NCIC printout admissible hearsay when it fit within business records exception to the hearsay rule); State v. Buck, 670 S.W.2d 600 (Tenn.1984) (stating that information in NCIC reports is pure hearsay of a dubious degree of accuracy, prepared for purposes other than court use, contains information that is likely to be prejudicial under all circumstances, and is not the best evidence of matters that can be proven 'by reliable, documentary evidence).

6 . "A 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." Evid. R. 801(a).

7 . In addition to these explicit elements of the crime, the State must also prove beyond a reasonable doubt that a defendant accused of receiving stolen property knew that the property had been the subject of theft. Gibson v. State, 643 N.E.2d 885, 887 (Ind.1994). The test of knowledge is not whether a reasonable person would have known that the property had been the subject of theft but whether, from the circumstances surrounding the possession, the defendant knew that it had been the subject of theft. Id. at 888. Here, Vlietstra does not claim that the State failed to prove that he knew that the property had been stolen. Instead, he argues that the State failed to prove that the property had in fact been stolen. Of course, for the State to prove that Vlietstra knew that the property was stolen, it must prove that the property was actually stolen.

8 . Even considering the evidence of Vlietstra's conversation with Captain Johnsen, there is insufficient proof that the property in question was stolen. We therefore need not consider Johnsen's claim that the admission of Johnsen's testimony violated Indiana Evidence Rule 404(b).

9 . According to the information Detective Olehy garnered from the NCIC, the model 445 tractor was reported stolen by the Lafayette Police Department, the model 4200 was reported stolen by the Berrien County Sheriff's Department in Michigan, the rotary mower was reported stolen by the Benton County Sheriff's Department, and the front-end loader was reported stolen by the Lebanon Police Department. According to the conversation between Vlietstra and Captain Johnsen, the model 425 tractor which was sold to Mr. Newenhouse's father-in-law was stolen from Eau Claire, Michigan, which is in Berrien County, Michigan. The latter tractor, however, was not the subject of a charge against Vlietstra.

10 . Although not referred to by the State, we note that Mrs. Newenhouse testified that Detective Olehy told her that the items were "stolen." Transcript at 60. However, the record indicates that the police learned this information by "run{ing] the numbers" on the tractors, ie. using the NCIC-information which we have determined to be hearsay. Id.