Ervin v. State
| Decision Date | 28 July 2011 |
| Docket Number | No. 49A02-1002-CR-123,No. 49A05-1107-CR-347,49A05-1107-CR-347,49A02-1002-CR-123 |
| Parties | MARVIN ERVIN, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), 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:
JOEL M. SCHUMM
GREGORY F. ZOELLER
Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable James B. Osborn, Judge
MEMORANDUM DECISION - NOT FOR PUBLICATIONBAKER, Judge Upon remand from our Supreme Court, we have been instructed to more fully address an issue that appellant-defendant Marvin Ervin presented in his direct appeal that involves the Proportionality Clause of the Indiana Constitution. Although our original opinion has been vacated in its entirety, we set forth the facts of the case and the disposition of the remaining issues in this appeal as were reported in our previous unpublished memorandum decisions1 with minimal modifications.
Ervin appeals his conviction for theft,2 a class D felony, and his adjudication as a habitual offender.3 Ervin argues that the trial court abused its discretion in admitting various pawn shop documents under the business record exception to the hearsay rules, that the trial court erred in refusing to instruct the jury on the offense of conversion as a lesser included of theft, and that the class D felony classification for the offense of theft violates the Proportionality Clause of the Indiana Constitution.4
We conclude that the pawn shop documents were properly admitted into evidence, that the trial court did not err in refusing to give Ervin's tendered instruction onconversion, and that there was no violation of the Proportionality Clause in convicting and sentencing Ervin for theft.
FACTS
On June 9, 2009, at approximately 1:50 p.m., Ervin and Cameron Crowe visited Crystal Jones at Jones's apartment on East Michigan Street in Indianapolis. Ervin brought his bicycle with him, and pursuant to the building policy, Jones instructed Ervin to put the bicycle in the basement. When Ervin and Crowe left, Ervin took his bicycle with him, while Crowe carried out a red, ten-speed Huffy bicycle. That evening, shortly before 6 p.m., Ervin took the Huffy to Cash America Pawn and sold it for fifteen dollars.
The next day, Larry Johnson, another tenant in Jones's apartment building, reported that his bike had been stolen from the building's basement. Indianapolis Metropolitan Police Department Officer (IMPD) Thomas Goodin, who worked as an off-duty security guard at the apartment building, reviewed some video footage that had been taken the previous day from several cameras inside the apartment building. The video showed Ervin and Crowe visit Jones's apartment and then leave with Johnson's bicycle. After Jones identified both men, Officer Goodin filed a police report.
IMPD Detective Julie Busic entered Ervin's name in "Leads Online," a database that contained information entered by pawn shops throughout the country. Tr. p. 85. Detective Busic was informed on the data base that Ervin had pawned a red Huffy bicycle at the Cash America Pawn. Thereafter, Detective Busic contacted Detective Mary Horty of IMPD's pawn unit, who pulled a pawn card, which is created by CashAmerica Pawn by duty of law that records the pawn transaction and which is maintained by IMPD's pawn unit. The pawn card contained Ervin's name and identifying information, the specific characteristics of the bicycle, Ervin's thumb print, and his signature. Detective Horty contacted Cash America Pawn to place a police hold on the bicycle and to retrieve the bill of sale created for the transaction. The bill of sale also listed Ervin's name, address, identifying information, his thumb print, and identifying information for the bicycle.
On June 19, 2009, the State charged Ervin with theft, a Class D felony. The State subsequently amended the charging information and alleged Ervin to be a habitual offender. At a jury trial that commenced on December 23, 2009, Ervin objected to the admission of the pawn card and the bill of sale because no testimony was offered establishing that the documents were made at or near the time of the event or that they were made by an individual with knowledge of the transactions.
The trial court overruled the objection and admitted both exhibits into evidence. At the close of the evidence and prior to instructing the jury, Ervin tendered a proposed jury instruction for conversion, a class A misdemeanor, which was overruled by the trial court on the basis that the evidence did not support it. After deliberation, the jury found Ervin guilty of theft and he subsequently pleaded guilty to being a habitual offender.
On January 11, 2010, the trial court sentenced Ervin to 910 days of incarceration for theft that was enhanced by 545 days on the habitual offender adjudication. Ervin now appeals.
DISCUSSION AND DECISION
Ervin first contends that the trial court abused its discretion when it admitted the pawn card and bill of sale into evidence pursuant to the business record exception of the hearsay rules. Specifically, Ervin argues that the State failed to establish that an individual with personal knowledge had prepared the documents near the time of the transaction. Thus, Ervin claims that the documents did not satisfy the requirements of the business records exception.
Questions regarding the admissibility of evidence are matters within the trial court's sound discretion. Brooks v. State, 934 N.E.2d 1234, 1240 (Ind. Ct. App. 2010), trans. denied. Thus, we review a trial court's decision to admit or exclude evidence using an abuse of discretion standard. Covey v. State, 929 N.E.2d 813, 819 (Ind. Ct. App. 2010). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Brooks, 934 N.E.2d at 1240. We will not reverse the trial court's admission of evidence absent a showing of prejudice. Sullivan Builders & Design, Inc. v. Home Lumber of New Haven, Inc., 834 N.E.2d 129, 133 (Ind. Ct. App. 2005).
To admit business records pursuant to this exception, the proponent of the exhibit may authenticate it 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 sponsor the exhibit. Id. Rather, such person need show only that the exhibit was part of certain records kept in the routine course of business and placed in the records by one who was authorized to do so and who had personal knowledge of the transaction represented at the time of entry. Id. Records kept in the ordinary course of business are presumed to have been placed there by those who have a duty to so record and have personal knowledge of the transaction represented by the entry, unless there is a showing to the contrary. Id.
In this case, Christopher Steadmon, the manager of Cash America Pawn, testified in an effort to establish the foundational requirements for the admission of the pawn cardand bill of sale under the business records exception. Tr. p. 91-97. Steadmon identified the pawn card and the bill of sale as two documents generated by a Cash America Pawn customer service representative in the regular course of business at the time of the sales transaction. Id. at 94.
Steadmon clarified that prior to being able to complete these documents, each customer service representative was required to partake in a month-long training and a period of time shadowing another employee. It was determined that each employee executes a transaction the same way: first, the employee determines ownership of the item offered for sale and retrieves the identifying characteristics, including the serial number, make, and model of the item. Steadmon then explained that the employee enters this information, together with the identifying information from the seller, into the computer at the time of sale to generate the pawn card. Id. The employee can only take the personal identifying information from a state-issued identification card and the seller's thumb print is recorded on the pawn card. At the end of the transaction and in accordance with the law, the pawn card is mailed within twenty-four hours to IMPD.
Next, Steadmon explained the generation of a bill of sale. In addition to the pawn...
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