Fitzgerald v. State

44 N.E.3d 841 (Table)

Tamara Fitzgerald, Appellant–Defendant

v.State of Indiana, Appellee–Plaintiff.

No. 49A02–1505–CR–366.

Court of Appeals of Indiana.

Dec. 31, 2015.

Zachary J. Stock, Zachary J. Stock, Attorney at Law. P.C., Carmel, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

ROBB, Judge.

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 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.

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 Fong of Big Red's Discount Towing (“Discount Towing”).

[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.

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 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 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...