Beaty v. State

856 N.E.2d 1264

Charles BEATY, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 71A03-0511-CR-556.

Court of Appeals of Indiana.

November 21, 2006.

COPYRIGHT MATERIAL OMITTED

Julie P. Verheye, Mishawaka, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Following a jury trial, Appellant, Charles Beaty, was convicted of two counts of Theft as a Class D felony and two counts of Receiving Stolen Property as a Class D felony.¹ Upon appeal, Beaty presents two issues for our review, which we restate as: (1) whether the trial court erred in limiting Beaty's cross-examination of one of the State's witnesses, and (2) whether the single larceny rule precludes Beaty's convictions upon both counts of Receiving Stolen Property.

We affirm.

The facts most favorable to the jury's verdicts reveal that in 2002, John Hohler was a lumber manager at a Lowe's home improvement store. Beaty became acquainted with Hohler because Beaty, a self-employed general contractor, often bought supplies at Lowe's. Hohler gave Beaty legitimate discounts on damaged items or clearance items. Hohler eventually began to give Beaty discounts which were in excess of company policy without authorization. Hohler also began to outright give Beaty merchandise from Lowe's without authorization to do so. Beaty eventually agreed to allow Hohler to fix up a rental home owned by Beaty and in exchange allow Hohler to live there rent free.

On October 18, 2002, Hohler and several other Lowe's employees loaded several items of Lowe's merchandise onto Beaty's truck trailer. Hohler had prepared an estimate for the items to reserve them in Beaty's name. Based upon his earlier actions, Hohler had become the subject of the suspicions of Tammy Heinsohn, a loss prevention manager at Lowe's. Ms. Heinsohn videotaped Hohler and the other employees loading the merchandise onto Beaty's trailer. Included among the items loaded onto Beaty's trailer were a DeWalt-brand miter saw, siding material, flashing, and soffits. Hohler gave Beaty a Lowe's "pink ticket" to sign, a "pink ticket" being a form used by Lowe's to verify that a customer has received what they earlier paid for. The pink ticket presented to Beaty was blank, but he nevertheless signed it. Hohler printed off the blank pink ticket so that the other Lowe's employees, who were apparently ignorant of what was going on, would believe that Beaty had paid for the items. Neither Beaty nor Hohler paid for any of the items loaded onto Beaty's trailer.

On October 22, 2002, Beaty again came to Lowe's with his trailer, and more Lowe's merchandise was loaded onto his trailer by Hohler and other Lowe's employees. Included in the items taken this time were windows, trash cans, lumber, and concrete. Beaty signed another blank pink ticket given to him by Hohler and drove off without paying for the items. Ms. Heinsohn also captured this transaction on videotape.

When confronted by Ms. Heinsohn and Lowe's investigator Mark Conachen, Hohler confessed his involvement. Hohler directed Mr. Conachen to three locations where he said the stolen Lowe's property could be found: Beaty's home on Evesham Court, the rental property on Donald Street owned by Beaty which Hohler was fixing up, and Hohler's residence on Dubail Street. Lowe's employees and police went to these locations and hauled away six truckloads of property identified by Hohler as stolen. Among the items recovered were several which were in addition to those alleged to have been taken on October 18 and October 22.

On December 1, 2002, the State charged Beaty with: Count I, aiding and abetting the October 18, 2002 theft of a miter saw and "other videotaped items" belonging to Lowe's; Count II, aiding and abetting the October 22, 2002 theft of "a cart full of merchandise (all videotaped, itemized list in probable cause affidavit)" belonging to Lowe's; Count III, retaining "Lowe's windows and doors at [Beaty's] rental unit on . . . E. Donald [Street]" which had been stolen by Hohler; and Count IV, retaining "Lowe's merchandise in the approximate sum of $12,000 at his residence on . . . Eavesham Court" which had been stolen by Hohler. App. at 7-8. Hohler was charged with three counts of theft as a Class D felony and ultimately agreed to plead guilty to one count of theft and testify against Beaty. In exchange, the State agreed to dismiss the remaining charges.

A jury trial was held on August 8 through August 11, 2005. During the trial, Beaty was repeatedly limited in his questioning of Hohler with regard to other thefts and wrongdoing by Hohler which did not involve Beaty. Beaty testified that he did not know that the items loaded onto his trailer or found on his properties were stolen, claiming to be Hohler's victim. The jury was given evidence consisting of the videotapes of the thefts on October 18 and 22, and an itemized list of over 150 items recovered by Lowe's from the properties. After the presentation of evidence, the trial court instructed the jury that to convict Beaty as charged in Counts III and IV, the stolen property had to be "in addition to and other than the items referred to in Counts I and II." Tr. at 585. The jury found Beaty guilty as charged. On October 25, 2005, the trial court entered judgments of conviction upon all four counts and sentenced Beaty to three year sentences upon each count. The court ordered six months of the sentences under Counts I and II to be executed and served consecutively and ordered the remainder of the sentences to be suspended to probation. Beaty filed a Notice of Appeal on November 8, 2005.

I

Beaty first argues that the trial court committed reversible error by limiting his cross-examination of Hohler. Specifically, Beaty contends that he should have been allowed upon cross-examination of Hohler to inquire into specific instances of misconduct by Hohler which did not involve Beaty, Beaty's theory being that Hohler had previously stolen from Lowe's and that Beaty was just a pawn in Hohler's scheme. In reviewing Beaty's claim, we are reminded that the decision to admit or exclude evidence is a matter within the sound discretion of the trial court, and we will reverse only when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Collins v. State, 826 N.E.2d 671, 677 (Ind.Ct.App.2005), trans. denied, cert. denied, ___ U.S. ___, 126 S.Ct. 1058, 163 L.Ed.2d 885 (2006).

Despite his claim that he wished only to impeach Hohler with his prior acts, Beaty's claim comes dangerously close to offering into evidence Hohler's prior bad acts in order to prove Hohler's bad character and that his action in his dealings with Beaty was in conformity therewith. Indeed, it appears that Beaty wanted to show that Hohler had previously stolen items from Lowe's in order to demonstrate that Hohler was more likely to have been the thief in the instant case. The Indiana Rules of Evidence prohibit this. Specifically, Evidence Rule 404(a) provides that "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except . . . [e]vidence of the character of a witness, as provided in Rules 607, 608 and 609." Evidence Rule 607 simply provides that the credibility of a witness may be attacked by any party, including the party calling the witness. Evidence Rule 609 governs impeachment of a witness by evidence that the witness was convicted of certain crimes. Since there is no indication that the acts Beaty wished to inquire into were ever reduced to convictions, Rule 609 is inapposite.

Evidence Rule 608, which is at issue here, reads in full as follows:

"(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific Instances of the Conduct of a Witness. For the purpose of attacking or supporting the witness's credibility, other than conviction of a crime as provided in Rule 609, specific instances may not be inquired into or proven by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." (emphasis supplied).

Beaty's proffered evidence was not in the form of opinion or reputation, and such evidence would therefore not be admissible under Rule 608(a). Instead, Beaty wished to delve into specific instances of Hohler's conduct, i.e. his prior thefts from his employer. Rule 608(b) specifically states that specific instances of conduct may neither be inquired into nor proven by extrinsic evidence.² There is an exception to this rule with regard to a conviction for a crime under Rule 609, which, as mentioned, is not applicable here because the conduct at issue was never the subject of a criminal conviction. Similarly, the limited exception mentioned in the last sentence of Rule 608(b) is inapplicable here because Hohler did not testify regarding the truthfulness of another witness. Indiana cases have consistently held that Evidence Rule 608(b) prohibits the introduction of evidence regarding specific instances of misconduct. See, e.g., Johnson v. State, 832 N.E.2d 985 (Ind.Ct.App.2005) (holding that trial counsel's performance was not defective for failing to proffer evidence that State's witness allegedly kidnapped and...