Mefford v. State

51 N.E.3d 327

Gary L. MEFFORD, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 40A01–1504–CR–147.

Court of Appeals of Indiana.

Feb. 16, 2016.

R. Patrick Magrath, Alcorn Sage Schwartz & Magrath, LLP, Madison, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

NAJAM, Judge.

Statement of the Case

[1] Gary L. Mefford appeals his convictions following a bench trial for three counts of theft, as Class D felonies. He raises the following two issues on appeal.

1. Whether the trial court erred in denying his motion for discharge pursuant to Indiana Criminal Rule 4(C).

2. Whether there was sufficient evidence to support his conviction for theft.

[2] We affirm.

Facts and Procedural History

[3] In early 2006, Mefford, who owned a logging and timber business known as Gary Mefford Logging (“the business”),

entered into contracts with three landowners in Jennings County to cut timber from their property and split the gross proceeds from the sale of the timber with each of them fifty-fifty. Pursuant to his contract to remove timber from Elizabeth Steeb's property, Mefford and his employees began cutting and removing the timber in July 2006. Mefford and his employees loaded the cut timber onto trucks and, from there, Mefford's employees Tina Rowlett and Christine Boldery sold the timber to one of two lumber mills. Payment for each truckload of timber was made by cash or check to Rowlett or Boldery. With the exception of one check in the amount of $4,566.12 that was paid directly to Mefford for some of the Steeb timber, payment was not made directly to Mefford, and checks were not written to Mefford or his company. Over a period of four weeks, the Steeb timber sold for a total of $51,274. However, Rowlett gave Mefford about $26,000 for that timber. Mefford testified that he gave Steeb four payments totaling $13,000.

[4] In October 2006, Mefford entered into a contract with Heather and Jeremy Kessler to remove timber from their property. At around the same time, Mefford also entered into a contract with Joyce Cherry, whose property adjoined the Kesslers' property, to remove timber from her property. Under both the Kessler and Cherry contracts, Mefford agreed to split the gross proceeds from the sale of the timber fifty-fifty with each landowner. In October, Mefford and his employees began cutting and removing the trees from the Kessler and Cherry properties. Rowlett sold the timber from those two properties for a total of $9,000, but she gave Mefford only $4,000 of those proceeds. Mefford paid Kessler and Cherry $2000 total for the timber harvested from their respective properties. Mefford made no other payments to Kessler or Cherry.

[5] In 2007, Steeb, Kessler, and Cherry filed complaints with the Indiana Department of Natural Resources (“DNR”) because they were not convinced that they had received all the money to which they were entitled for the sale of timber Mefford had harvested on their properties. Following an investigation by DNR, on July 17, 2009, the State charged Mefford with three counts of theft as Class D felonies, one count for each of the landowners. On July 30, 2009, Mefford was arrested. He subsequently posted bond and was released from jail.

[6] On September 30, 2009, the trial court set a three-day jury trial to begin on July 12, 2010. On June 25, Mefford moved to continue the trial date. The trial court granted that motion and reset the jury trial to begin on February 1, 2011. Between January 14, 2011, and July 15, 2013, Mefford requested and was granted four additional continuances of the trial. During that time he also waived his right to a jury trial.

[7] On August 19, 2013, the State moved to continue the September 12, 2013, trial. The State's motion for continuance indicated that Mefford was informed of the motion and had no objection to the continuance. The trial court reset the trial for November 5, 2013. Between October 31, 2013, and April 19, 2014, the State requested three additional continuances, all of which indicated that Mefford was informed of the motions and had no objections to the continuances, and all of which were granted. On July 24, 2014, Mefford again moved to continue the trial because he was still conducting discovery, and the trial court reset the trial for October 28, 2014. On October 28, 2014, the trial court continued the trial due to court congestion resulting from a jury trial in another case. The court reset Mefford's trial for February 9, 2015. On February 2, 2015, Mefford moved to continue the February 9 trial date, but the trial court denied his motion. On February 9, Mefford filed a motion to dismiss and discharge his case pursuant to Indiana Criminal Rule 4(C). The trial court took the motion under advisement and proceeded with the February 9 bench trial.

[8] At trial, the State presented testimony from Rowlett, Mefford's employee, who, along with Boldery, was responsible for most of the loading and hauling of the timber harvested from all three properties to the lumber yards where the timber was sold. Mefford assisted with loading on occasion, but he usually just cut the timber. Rowlett testified that, while she and Mefford were removing timber from the Kessler and Cherry properties, Mefford had mixed together the logs taken from each property without marking them, which made it impossible to identify which logs had come from which property. She also testified that she had kept no records from the Kessler and Cherry timber sales. Nonetheless, she testified that the Kessler timber had sold for approximately $5,100 and the Cherry timber had sold for approximately $4,800. Checks for the Kessler and Cherry timber were made payable to Rowlett so that she could cash the checks and then pay herself and the other employees who had worked on the jobs. Rowlett did not testify as to how much of the money from the Kessler and Cherry timber sales she had given to Mefford.

[9] Rowlett testified that she had received a total of $51,274 for the timber harvested at the Steeb property, but she did not testify that Mefford ever knew she had received that amount. Rowlett testified that, with each timber sale on the Steeb job, she had received a check, receipt, or other documentation of the sale from the respective mills. Rowlett also testified that State's Exhibit 5 consisted of her own hand-written notes regarding the checks she had received from the lumber companies for the Steeb timber. She further testified that some of the receipts and other documents relevant to the Steeb contract were contained in State's Exhibit 6.¹ But there is no evidence that Mefford had ever seen any such paperwork prior to the criminal charges against him,² and there is no evidence that Mefford otherwise knew that Rowlett had received a total of $51,274 for the timber sold from the Steeb property.

[10] At the conclusion of Rowlett's testimony, she was taken into custody on an outstanding warrant for her arrest for violating probation. Immediately prior to being taken into custody, Rowlett testified that she was on probation for a theft conviction related to timber she had removed from someone's property in Henryville in 2013.

[11] The State also presented testimony from John Cannarello, an investigator with the DNR's Law Enforcement Division who investigated the landowners' complaints against Mefford. Cannarello testified that, in his experience, “50/50” as used in Mefford's contracts with the landowners means that “the timber buyer agrees to pay the landowner 50% of whatever he gets paid for the timber from the log yard, the logging companies.” Tr. at 6.

[12] The State also presented testimony and affidavits from Dewayne Allen McCoy, a forester with DNR's Division of Forestry. McCoy is trained to evaluate stump and branch refuse to assess the value of removed timber. McCoy was asked by DNR conservation officers to investigate the timber taken from the three Jennings County properties at issue in this case. McCoy did so for the Steeb property in November 2007 and January 2008, and he concluded that the assessed value of the timber removed from that property was $46,404.28. In December 2006 and January 2007, McCoy investigated the Kessler and Cherry properties and concluded that the assessed value of the timber removed from both properties combined was $16,705.45.

[13] By the time of the trial, Steeb had died. However, her daughter, Ruth Long, testified at trial that her mother had a contract with Mefford under which her mother was to receive fifty percent “from the sale of the lumber.” Tr. at 12. Ms. Long also testified that, in the Fall of 2006, Mefford had gone to the Steeb home and asked Long if she had contacted the DNR to lodge a complaint against him. Long testified that she had told Mefford she had not contacted the DNR, and Mefford had then made a $2,000 payment to Steeb. Long testified that Mefford promised to provide the Steeb family with documentation showing what timber had been removed from the property, but he never did. Long did not know whether Mefford had made any payments to Steeb other than the $2,000 payment.

[14] Heather Kessler also testified for the State. She testified that, under her contract with Mefford, she was to receive fifty percent of “whatever ... he earned from selling the logs.” Tr. at 43. She also testified that, sometime in November 2006, she had confronted Mefford about payment for the timber he had taken and Mefford had promised to write her a check. However, when they had reached Mefford's house, he had not written Kessler a check and he had instead, for reasons unexplained, threatened to call the police about her. Kessler testified that, sometime before November 4, 2006, Mefford had paid her $1,000 in cash for the timber he had taken from her property.

[15] The State also presented the testimony of Joyce Cherry. She testified that her contract with Mefford...