Tamara Fitzgerald v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Dec 31 2015, 10:14 am
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 ATTORNEYS FOR APPELLEE
Zachary J. Stock Gregory F. Zoeller
Zachary J. Stock, Attorney at Law. P.C. Attorney General of Indiana
Carmel, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tamara Fitzgerald, December 31, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1505-CR-366
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G06-1408-FC-40962
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial, Tamara Fitzgerald was convicted of insurance fraud as a
Class C felony and false informing as a Class B misdemeanor. Fitzgerald
appeals, raising two issues for our review: (1) whether the trial court committed
fundamental error by admitting certain records into evidence; and (2) whether
her convictions violate the Double Jeopardy Clause of the Indiana
Constitution. Concluding the trial court did not commit fundamental error and
Fitzgerald’s convictions do not constitute double jeopardy, we affirm
Fitzgerald’s convictions.
Facts and Procedural History
[2] On February 11, 2009, Fitzgerald and her husband bought a 2000 Cadillac
DeVille bearing the vehicle identification number (“VIN”)
1G6KD54Y1YU237954. They purchased the vehicle in Virginia from
Fitzgerald’s sister, Yolanda Royal. Royal did not transfer the vehicle’s
certificate of title because she was unable to locate it. Instead, the parties
executed a bill of sale. The vehicle remained registered in Virginia, in Royal’s
name, but was added to an Erie Insurance (“Erie”) policy issued to Fitzgerald
in June 2009.
[3] On June 16, 2011, Fitzgerald contacted the Indianapolis Metropolitan Police
Department (“IMPD”) to report the vehicle stolen. Fitzgerald told the police
she left the vehicle parked at 30th Street and German Church Road the day
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before with the key stuck in the ignition, and when she returned for the vehicle,
it was gone. Fitzgerald completed a Verification of Stolen Vehicle Report,
listing Royal as the vehicle’s owner and noting “key stuck in the ignition.”
State’s Exhibit 28.
[4] Later that day, Fitzgerald filed a claim with Erie. She gave a recorded
statement over the telephone and also submitted an Affidavit of Vehicle Theft.
During the recorded statement, Fitzgerald told a claims adjuster she left the
vehicle in a parking lot at 30th Street and German Church Road on June 15,
2011, and her husband discovered the vehicle was missing when he went to
retrieve it the following day. Fitzgerald stated they promptly reported the theft
to the police and provided the claims adjuster with the IMPD case number.
Fitzgerald also stated she had only one set of keys for the vehicle and left the
vehicle locked in the parking lot:
Q. Now how many sets of keys are there for the vehicle?
R. There was only one set.
Q. And where were those keys kept?
R. The keys are—my husband keeps the keys. They hang—
he hangs them up. He doesn’t take them with him but he
has the keys.
Q. And that set of keys is accounted for now?
R. Yes.
***
Q. And the vehicle was left locked?
R. Yes, it was locked.
Q. And the keys were?
R. I brought the key back.
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Q. Okay.
R. The one that I used, yeah.
State’s Ex. 7, at 6-7, 9.
[5] Fitzgerald advised the claims adjuster she was not the titled owner of the
vehicle and provided the bill of sale for proof of ownership. When the claim
was being processed, the claims adjuster contacted Fitzgerald to collect
additional information about the keys. Fitzgerald told the claims adjuster the
key was stuck in the ignition during that conversation. Notwithstanding the
discrepancy in Fitzgerald’s account, Erie settled the claim in July 2011 and sent
Fitzgerald a check for $5,051.77. The check was enclosed in a letter stating Erie
was withholding $1,200.00 from the settlement pending receipt of the vehicle’s
certificate of title. Fitzgerald deposited the check but never provided the
certificate of title.
[6] In February 2014, Erie discovered another discrepancy with regard to
Fitzgerald’s claim. An Erie investigator consulted a national database that
tracks insurance claims and scrap metal sales and realized “the vehicle appeared
to have been sold as scrap approximately nine to ten days before the reported
day of loss.” Transcript at 84-85. A 2000 Cadillac Deville with the same VIN
as the vehicle Fitzgerald reported stolen was sold to Integrity Metals
(“Integrity”) as scrap on June 6, 2011, over a week before Fitzgerald claims she
left the vehicle in a parking lot. The investigator contacted Integrity directly
and confirmed the vehicle had been sold as scrap on June 6, 2011, by Kenneth
Long of Big Red’s Discount Towing (“Discount Towing”).
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[7] Suspecting fraud, Erie referred the case to the Marion County Prosecutor’s
Office for further investigation. Thereafter, on August 25, 2014, the State
charged Fitzgerald with Count I, insurance fraud, a Class C felony; Count II,
theft, a Class D felony; and Count III, false informing, a Class B misdemeanor.
A jury trial was held on March 4, 2015. Long testified Discount Towing buys
cars to sell as scrap and is not in the business of towing cars to be repaired.
Customers call and request pick up, and the Discount Towing office dispatches
Long to tow the cars to the salvage yard. Customers are paid in cash, and
Discount Towing does not maintain records of these transactions. Long
recalled taking cars to Integrity on June 6, 2011, but he did not remember
which cars or from whom the cars were purchased. Integrity’s office manager,
Heidi Kerstiens, also testified. Kerstiens testified to Integrity’s business
practices, and the State introduced records maintained by Integrity through
Kerstiens’ testimony. The records showed Long sold five vehicles to Integrity
on June 6, 2011, including a 2000 Cadillac Deville, VIN
1G6KD54Y1YU237954.
[8] The jury found Fitzgerald guilty on all counts. The trial court merged Count I
and Count II and entered judgment of conviction for insurance fraud and false
informing. This appeal followed.
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Discussion and Decision
I. Admission of Evidence
A. Standard of Review
[9] Fitzgerald contends the trial court erred by admitting Integrity’s records into
evidence. She argues the records constituted inadmissible hearsay because
there was an insufficient foundation to admit them under the business records
exception. See Ind. Evidence Rule 803(6). Fitzgerald concedes, however, she
did not object to the admission of the records at trial. Therefore, unless she can
show the trial court committed fundamental error by admitting the records, the
issue is waived. Stephenson v. State, 29 N.E.3d 111, 118 (Ind. 2015).
[10] “Fundamental error is an extremely narrow exception to the waiver rule where
the defendant faces the heavy burden of showing that the alleged errors are so
prejudicial to the defendant’s rights as to make a fair trial impossible.” Ryan v.
State, 9 N.E.3d 663, 668 (Ind. 2014) (citation and internal quotation marks
omitted). The error must be “so egregious and abhorrent to fundamental due
process” that the trial judge should have acted, “irrespective of the parties’
failure to object or otherwise preserve the error for appeal.” Whiting v. State,
969 N.E.2d 24, 34 (Ind. 2012).
B. Integrity’s Records
[11] Hearsay is an out-of-court statement offered into evidence to prove the truth of
the matter asserted. Evid. R. 801(c). Hearsay is inadmissible unless it falls
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under a recognized exception. Evid. R. 802. One such exception exists for
records that satisfy the requirements of Evidence Rule 803(6), which provides,
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
***
(6) Records of a Regularly Conducted Activity. A record of an
act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a business, organization, occupation,
or calling, whether or not for profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of
trustworthiness.
Fitzgerald argues there was an insufficient foundation to admit Integrity’s
records under Evidence Rule 803(6), the business records exception.
[12] At trial, Kerstiens thoroughly explained the process of selling a vehicle to
Integrity. First, the customer must present (1) a government-issued photo ID,
and (2) either a valid salvage license or the vehicle’s certificate of title. Licensed
salvage dealers such as Discount Towing do not have to present a certificate of
title in order to sell a vehicle as scrap. Then, the customer drives the vehicle
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onto a scale. While on the scale, the vehicle is photographed, and Integrity’s
computer system records the weight. Once the weight is recorded, an employee
checks the VIN and records that information in the Integrity computer system.1
Finally, the vehicle is shredded, and the customer is paid. Every step of the
process is recorded in Integrity’s computer system, and each customer is
photographed and assigned a unique customer number.
[13] Kerstiens testified these records are created in the regular course of Integrity’s
business, at or near the time of each transaction, and contain information
entered into Integrity’s computer system by a person with knowledge and a
duty to report accurately. Through Kerstiens’ testimony, the State admitted
Exhibits 17 through 25. Exhibit 17 is a report that Kerstiens created on March
18, 2014, showing all of the transactions between Integrity and Discount
Towing from January 2001 to March 2014. The report includes information
such as the date and ticket number for each transaction, the amount paid, and
details about the vehicles, including their make, model, year, and VIN. Exhibit
18 is a “Scale Purchase Ticket,” stating Long sold five vehicles to Integrity on
June 6, 2011, and certifying Long had the right to possess and sell these
vehicles. Exhibit 19 is a “Payment Receipt,” stating Integrity paid $2,252.50 for
the five vehicles sold on June 6, 2011. The vehicles are not identified by make,
model, year, or VIN on the ticket or the receipt. Exhibits 20 through 22 are
1
Every vehicle has a unique, seventeen-character VIN that identifies the vehicle by make, model, and year.
See Tr. at 92; State’s Ex. 17. The VIN is listed on the vehicle’s certificate of title and on the vehicle itself,
usually in the window or on a door frame. Tr. at 100.
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photographs of Long and the vehicles sold on June 6, 2011. Exhibits 23
through 25 show the information Integrity maintains about Long, including a
copy of his commercial driver’s license and a copy of his salvage license.
[14] Fitzgerald did not object to any of these exhibits at trial but argues the trial
court committed fundamental error by admitting them because Kerstiens’
testimony was an inadequate foundation for the business records exception.
Specifically, Fitzgerald contends Kerstiens’ testimony failed to establish the
records were made by someone with knowledge, see Evid. R. 803(6)(A),
because Kerstiens only testified to “what is typically done,” and did not identify
the specific employee who handled the transaction. Appellant’s Brief at 9.
[15] We first note,
The reliability of business records stems from the fact that the
organization depends on them to operate, from the sense that
they are subject to review, audit, or internal checks, from the
precision engendered by the repetition, and from the fact that the
person furnishing the information has a duty to do it correctly.
Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997). Therefore, the proponent of a
business record can satisfy the requirements of Evidence Rule 803(6) “by calling
a witness who has a functional understanding of the record keeping process of
the business with respect to the specific entry, transaction, or declaration
contained in the document.” Rolland v. State, 851 N.E.2d 1042, 1045 (Ind. Ct.
App. 2006). “The witness need not have personally made or filed the record or
have firsthand knowledge of the transaction represented by it in order to
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sponsor the exhibit.” Id. Moreover, a sponsoring witness is not required to
testify that she knows the person who recorded the information had personal
knowledge of the transactions. Payne v. State, 658 N.E.2d 635, 645 (Ind. Ct.
App. 1995), trans. denied. Records kept in the regular course of business are
presumed to have been created by someone with knowledge, unless there is a
showing to the contrary. Id.
[16] Fitzgerald concedes Integrity’s records were kept in the regular course of
business, and she points to no evidence showing the person who created the
records lacked knowledge. We therefore disagree Kerstiens’ testimony failed to
establish the records were made by someone with knowledge. As to Exhibits 18
through 25, we conclude Kerstiens’ testimony provided an adequate foundation
for their admission under Evidence Rule 803(6). There was no error in
admitting these exhibits, let alone fundamental error.
[17] But as to Exhibit 17, we conclude it does not satisfy the requirements of
Evidence Rule 803(6). Exhibit 17 is a twenty-three-page report that Kerstiens
created on March 18, 2014, showing all of the transactions between Integrity
and Discount Towing from January 2001 to March 2014. It was not created at
or near the time of each transaction. See Evid. R. 803(6)(A). However, we do
not believe the trial court committed fundamental error by admitting the report.
Pursuant to Evidence Rule 1006, a proponent may use a summary to prove the
content of voluminous writings or recordings, as long as the underlying
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documents are made available to the opposing party. 2 Given the summary of
the records was itself twenty-three pages long, the underlying records are likely
so voluminous “that they cannot be conveniently examined in court.” Evid. R.
1006. Accordingly, we find no fundamental error in the admission of Exhibit
17.
II. Double Jeopardy
A. Standard of Review
[18] Fitzgerald also contends her convictions for false informing and insurance fraud
violate the Double Jeopardy Clause of the Indiana Constitution, which
provides, “No person shall be put in jeopardy twice for the same offense.” Ind.
Const. art. 1, § 14. We review whether multiple convictions violate the Double
Jeopardy Clause de novo. Jones v. State, 976 N.E.2d 1271, 1275 (Ind. Ct. App.
2012), trans. denied. Two convictions constitute the “same offense” for double
jeopardy purposes “if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)
(emphasis in original).
2
The State did not admit the records summarized in Exhibit 17, but Evidence Rule 1006 does not require
this. The underlying records must only be made available to opposing party, Evid. Rule 1006, and nothing in
the record suggests Integrity’s records were not made available to Fitzgerald.
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B. False Informing and Insurance Fraud
[19] Fitzgerald argues her convictions violate the actual evidence test because both
offenses were proven by the fact that the Cadillac was sold as scrap on June 6,
2011. In order to find a double jeopardy violation under the actual evidence
test, we must conclude there is a reasonable possibility that the evidentiary facts
used by the factfinder to establish the essential elements of one offense may also
have been used to establish all the essential elements of a second challenged
offense. Hines v. State, 30 N.E.3d 1216, 1222 (Ind. 2015).
[20] Fitzgerald was convicted of false informing and insurance fraud. A person
commits false informing if she “gives a false report of the commission of a
crime or gives false information in the official investigation of the commission
of a crime, knowing the report or information to be false . . . .” Ind. Code § 35-
44-2-2(d)(1) (2007). A person commits insurance fraud when she “knowingly
and with intent to defraud . . . makes, utters, presents, or causes to be presented
to an insurer or an insurance claimant, a claim statement that contains false,
incomplete, or misleading information concerning the claim . . . .” Ind. Code §
35-43-5-4.5(a)(1).
[21] Although we agree both offenses required the State to prove Fitzgerald lied
about the Cadillac being stolen, we cannot conclude Fitzgerald’s convictions
violate the prohibition against double jeopardy. The fact that the Cadillac had
been sold as scrap over a week before Fitzgerald claims she left the vehicle in a
parking lot shows her account was fabricated. But the false informing
conviction required the additional fact of Fitzgerald reporting the vehicle stolen
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to the police. Likewise, it was Fitzgerald’s act of filing a claim with Erie that
established the essential elements of insurance fraud. Fitzgerald was not
subjected to double jeopardy in this case. See Hines, 30 N.E.3d at 1221 (“The
fact that the same evidence may have been used to establish a single element of
each of two offenses does not constitute a double jeopardy violation . . . .”).
Conclusion
[22] The trial court did not commit fundamental error by admitting Integrity’s
records into evidence, and Fitzgerald’s convictions do not violate the
prohibition against double jeopardy. We therefore affirm Fitzgerald’s
convictions.
[23] Affirmed.
Barnes, J., and Altice, J., concur.
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