Eifler v. State
| Decision Date | 22 April 1991 |
| Docket Number | No. 82A04-8908-CR-368,82A04-8908-CR-368 |
| Citation | 570 N.E.2d 70 |
| Parties | Richard EIFLER Appellant, v. STATE of Indiana Appellee. |
| Court | Indiana Appellate Court |
Wayne S. Trockman, Newman, Trockman, Lloyd, Flynn and Rheinlander, Evansville, for appellant.
Linley E. Pearson Atty. Gen. Margarett L. Knight Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Richard Eifler appeals from a jury conviction for forgery 1 by signing a letter dated December 2, 1981, which the State contends was actually made on or about October 27, 1983, with an intent to defraud the Evansville Utility Board and Sewer Department (Board) into giving a discount on sewer tap-in fees.
We reverse, finding the evidence was insufficient to prove Eifler had an intent to defraud. Because we reverse, we need not address other issues raised by Eifler.
Eifler was Evansville City Engineer from 1981 until 1986. His job description did not include any authority to make policy or modifications with regard to sewer tap-in fees. He was indicted on June 15, 1988, by a grand jury, along with two other defendants, John Vezzoso (former President of the Evansville Board of Public Works) and Andy Easley (real estate developer). The indictment was in two counts against all three defendants. Count I charged forgery of a written instrument (a letter dated December 2, 1981) with the intent to defraud the Evansville Utility Board and Sewer Department. The indictment alleged the letter was written at a time other than December 2, 1981. Count II charged the three defendants with conspiracy to commit forgery by agreeing with each other to execute a written instrument (the same letter referred to in count I) with the intent to defraud the Board. Vezzoso 2 and Eifler were found guilty of forgery, but acquitted of the conspiracy charge. Easley was found not guilty on both counts. Eifler received a two year sentence suspended to unsupervised probation and a $1,000 fine.
The indictments in this case arose out of confusion over the applicable rates for sewer connection charges for the St. Joseph Business Park which was constructed by Easley between 1976 and 1977. At that time, the city of Evansville did not have sufficient funds to extend sewer connections to new developments and enacted Ordinance No. G-76-12 to induce developers to advance their own funds to build sewer line extensions to the existing municipal system. 3 In some cases, the Board of Public The ordinance was amended in 1978 so that the forty percent rate no longer applied to commercial or industrial subdivisions, but left unaffected Section 4(d) of the 1976 ordinance which provided for the reduced rate for tap-ins to existing sewer lines constructed by a developer. When the ordinance was amended, Easley's sewer already existed. Thus, any individual who tapped into the sewer before or after the 1978 amendment was entitled to the forty percent rate under the ordinance. 5
Works would enter into recoupment contracts wherein the contractor would build a sewer line for a new development and would be reimbursed for his expenses as individual lot owners paid full tap-in fees--the contractor receiving a percentage of the fees paid until his investment had been recouped. An alternative--codified in the ordinance--allowed a developer to build a private extension for which he received no reimbursement, which entitled individual lot owners to tap into the sewer at the forty percent rate. 4 On November 17, 1976, while the ordinance was in effect, Easley presented plans for a private sewer line to the St. Joseph Avenue Business Park Subdivision to the Board of Public Works. It is undisputed the plans were approved by the Works Board, and the sewer line extension was built and accepted for maintenance by the Works Board on October 5, 1977. Easley did not have a recoupment contract with the city nor was he ever reimbursed for his expenses. Thus, his project fell under the alternative codified in the ordinance where no contract or agreement was needed
In January of 1983, the Board of Public Works and the Sewer Board were merged into one Utility Board. The new Board began to make changes in the operations affecting the Water Department and the Sewer Department in order to plan for capital expenditures and rate increases. Robert Leich, a former Utility Board President and member of the utility boards from 1980 through 1986, testified at trial that before the merger, the Water Department rates were set by application to the Public Service Commission in Indianapolis, but the Sewer Department had always set rates by ordinance. He also testified that when the boards merged, the Board members did not have a lot of knowledge about any rules and regulations affecting the utilities, but attempted to set up a procedure to honor commitments made by the City in regard to past sewer matters. Rather than seeking legal interpretation of the ordinances affecting sewer connections, the Board instituted a policy requiring proof or documentation of any agreements with the Board of Public Works. 6 Documentation could be In July, 1983, Glen Moore purchased a lot in the St. Joseph Business Park and attempted to pay a forty percent sewer connection fee. When it was not accepted, Moore went to see Easley. Easley apparently told Moore he would get him something to prove he was supposed to get the forty percent fee. Easley sent a letter to the Evansville Building Commissioner, dated October 27, 1983, signed by Easley's secretary, Judith Woodall. The letter stated:
provided by a copy of the minutes from the Works Board documenting approval or, if it had not been incorporated in the minutes, a statement from the previous Board that it had been approved.
Attached is a letter we are expecting to receive from the Board of Public Works. The agreement affects property purchased by Mr. Glen Moore in St. Joseph Avenue Business Park.
(R. 425). Attached to the letter was an unsigned draft of a proposed letter to be signed by Vezzoso. The body of the letter was identical to the December 2, 1981, letter charged in the indictment; however, the 1983 proposed draft did not include spaces for the signatures of the other board members nor did it include the sentence "on Recommendation of Richard Eifler, City Engineer, who was present at said meeting", and it did not have a place for the attestation of Eifler.
Easley appeared before the new Board on December 6, 1983, and presented the following letter (Exhibit 6, the subject of the indictment):
BOARD OF PUBLIC WORKS
City of Evansville
December 2, 1981
Mill Road Office Building Partnership
1133 West Mill Road
Subject: Sewer Tap-in Fee for Buildings in St. Joseph Avenue Business Park Subdivision
Gentlemen:
This letter is to confirm our agreement concerning the method of determining the amount of the sewer tap-in fee for the buildings that are being constructed in the St. Joseph Avenue Business Park.
The Board of Public Works is aware that the sanitary sewer extension on Commercial Court was constructed by the Mill In a meeting attended by John Vezzoso, Kevin Winternheimer and Andy Easley it was agreed that the 40% tap-in fee policy would remain in effect permanently for any building constructed in this Subdivision. On the recommendation of Richard Eifler, City Engineer who was present at said meeting.
Road Office Building Partnership at their expense at a time when the Board of Public Works allowed an extension to be constructed with the understanding that the sewer tap-in fee as determined for the lot--based on applicable ordinances and sewer contracts of record.
/s/ Richard Eifler
City Engineer
(R. 7, emphasis added).
Board Minutes reveal that the letter was given to the Board's attorney Allen Hamilton, 7 who, after consulting with the City Attorney, reported that the letter agreement was sufficient and recommended approval of the forty percent connection fee. On the basis of the letter, the reduced fee was approved by the Board. Robert Leich and Norbert Wooley, who were on the Utility Board in 1983, testified they would not have granted the forty percent tap-in fee if they had known the letter was not made and signed on December 2, 1981. However, Leich testified that the Board had not been defrauded or denied any sewer tap-in fees as a result of the letter. 8
At trial, Ronald Duncan, an ink comparison forensic chemist with the FBI, testified that the ink used in the signatures of Vezzoso, co-defendant, and Steven Imes, who was not charged, was not available until sometime after January of 1982. Duncan could not date the ink used in Eifler's signature. The rubber stamped signature of James Helfrich could not be dated. Duncan also testified that the ink used in signing another letter (nearly identical to the letter charged in this indictment) dated December 2, 1981, but signed by Vezzoso alone was not available before 1983.
Helfrich, who was not charged and was at the time of the trial the President of the Utility Board, testified that he was on the Board in 1981 for one year. He went off the Board in 1982, but was reappointed in 1983. He further testified that he recalled a meeting in November or December of 1981 regarding the reduced sewer fee for the St. Joseph Business Park and that the discussion was the result of one lot owner, Earl Woodall, threatening to sue if the matter was not straightened out. 9 He further testified that he used a rubber stamp to sign the letter in 1981. The State offered evidence indicating he used a different rubber stamp to sign 1981 utility records than the one he claims to have used in 1981 to sign the letter. A police officer checked utility records and the records were introduced. No charges were filed against Steven Imes and, although...
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