Griepenstroh v. State, 74A05-9303-CR-85

• Decision Date: 28 February 1994
• Docket Number: No. 74A05-9303-CR-85,74A05-9303-CR-85
• Parties: David GRIEPENSTROH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 887

629 N.E.2d 887

David GRIEPENSTROH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 74A05-9303-CR-85.

Court of Appeals of Indiana,

First District.

Feb. 28, 1994.

Transfer Denied May 16, 1994.

Terry Noffsinger, Noffsinger, Price, Bradley & Shively, Evansville, for appellant-defendant.

Pamela Carter, Atty. Gen., Jodi Kathryn Rowe, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

NAJAM, Judge.

STATEMENT OF THE CASE

David Griepenstroh appeals from his conviction for Perjury, a Class D felony. ¹ He contends that the evidence was insufficient to support his conviction because the State failed to prove that he "knowingly" signed a false statement. We agree and reverse.

ISSUE

Griepenstroh presents five issues for our review. Because we conclude that one issue is dispositive, we address only the following question: whether there was sufficient evidence to support Griepenstroh's conviction for perjury.

FACTS

Griepenstroh was a Spencer County Commissioner. In April of 1989, the County Commissioners contracted with Indiana and Michigan Power Company ("I & M") for the disposal of a large quantity of I & M's rock, sand and gravel known as "aggregate." I & M offered to donate aggregate to Spencer County if the County would remove and haul it away at its own expense. The contract also required that a "coordinator" be present and oversee operations at the I & M removal site.

The Commissioners advertised for hauling contractors to submit sealed bids and, on June 5, 1989, awarded the contract to Tom Shelton. One of the specifications of the hauling contract required Shelton to execute an agreement with the union currently working with I & M. On June 8, 1989, three days after the contract was awarded, Shelton and Griepenstroh went to the union hall to meet with Jim Manning, the union business manager, to discuss the hauling job. Shelton asked Griepenstroh to accompany him because Shelton was a non-union employer and Griepenstroh was a 20-year member of the union. Shelton and Manning signed an agreement that day which provided that if Shelton needed any additional employees for the job, those employees would be union members.

During their meeting on June 8, Shelton also told Manning that he wanted Griepenstroh to be the project coordinator. Manning did not initially agree to Shelton's proposal. However, before Shelton and Griepenstroh left the meeting, Manning agreed to select Griepenstroh as the coordinator. Griepenstroh then asked Manning to send him a "referral slip" to indicate formally that he had been hired as coordinator. On June Griepenstroh immediately contacted one of the Spencer County Attorneys, Francis Lueken, and told him that he had received a referral slip and would be the coordinator for the hauling project. Thereafter, Lueken and Rick Wetherill, the other County Attorney, researched whether there was a possible conflict of interest in Griepenstroh's employment as the coordinator and his position as a Commissioner. After also conferring with the Attorney General's office and the State Board of Accounts, the County attorneys concluded that no conflict existed under the Indiana Conflict of Interest statute. However, they recommended to Griepenstroh that he sign a conflict of interest notice "to err on the side of caution." Record at 1376.

14, Griepenstroh called Manning and again asked that a referral slip be sent because Griepenstroh needed it for a conflict of interest disclosure. Although the contract for hauling aggregate had been awarded to Shelton on June 5, the Commissioners did not sign the contract with Shelton until the June 16, 1989 Commissioner's meeting. After Griepenstroh returned home from that meeting, he found in his mail a union referral slip which directed him to report for work on June 20.

Wetherill then prepared a draft Formal Notice of Possible Conflict of Interest (the "Notice"). On June 19, before the Commissioners' meeting that day, Griepenstroh went to Wetherill's office and reviewed a number of documents, including the Notice. After Griepenstroh left Wetherill's office, Lueken reviewed the Notice and suggested changes, which were then incorporated in a final document. Lueken presented the Notice during the late stages of the Commissioner's meeting and gave each of the three Commissioners a copy. Lueken did not review with Griepenstroh, or the other Commissioners, any of the changes made on the original version but reviewed only the "high points" of the Notice at the meeting. Record at 1369. Leuken did not read it verbatim. Griepenstroh then signed the Notice during the meeting but did not read it because he had already reviewed it and often signed many documents at the Commissioners' meetings.

Griepenstroh worked as the coordinator on the I & M project from June 1989 to February 1990, when the project was stopped. Subsequently, allegations were made against Griepenstroh concerning his participation in the project. On December 9, 1991, Griepenstroh was indicted by a grand jury and charged with two counts of bribery, and one count each of conflict of interest, theft, and perjury. The trial court dismissed one count of bribery and the theft charge at the close of the State's evidence. The remaining counts went to the jury. On October 15, 1992, the jury acquitted Griepenstroh on the second count of bribery and on the conflict of interest charge, but found him guilty of perjury. He was sentenced to one and one-half years imprisonment but the sentence was suspended to one and one-half years of probation, 500 hours of community service and a $1000 fine. Griepenstroh appeals his conviction for perjury.

DISCUSSION AND DECISION

When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor determine the credibility of witnesses. Landress v. State (1992), Ind., 600 N.E.2d 938, 940. Instead, we look to the evidence most favorable to the verdict together with all reasonable inferences to be drawn therefrom. Id. at 940. If there exists substantial evidence of probative value to establish every material element of an offense beyond a reasonable doubt, we will not disturb the verdict. Clemens v. State (1993), Ind.App., 610 N.E.2d 236, 243.

Under Indiana Code Sec. 35-44-2-1, a person commits perjury if he "makes a false, material statement under oath or affirmation knowing the statement to be false or not believing it to be true." The relevant provisions of the Notice, upon which the State charged that Griepenstroh committed perjury, are contained in paragraphs "M" and "P" as follows:

"M. I represent that neither, Indiana Michigan Power Company, County Commissioners, nor Shelton Excavating selected or designated me for the job.

* * * * * * P. I do not make this disclosure prior to the signing of the contract, since I had no knowledge that I would be selected by the Union Hall to fill this position until after the contract was signed. However, I make this disclosure one (1) business day after I received notice from the Union Hall to report to work at the Plant site."

Record at 151-52. Griepenstroh contends that the evidence was insufficient to support his conviction for perjury because the State failed to prove either (1) that the statements contained within the Notice were false or (2) that he "knowingly" made a false statement when he signed the Notice.

Paragraph "M"

First, the State contends that paragraph "M" contains a false statement because "Shelton Excavating, via Tom Shelton, specifically selected and designated Defendant for the position of coordinator during a meeting with the union." Brief of Appellee at 11. The State maintains there was sufficient evidence to show that paragraph "M" was false because Shelton told Manning in Griepenstroh's presence that he wanted Griepenstroh to be the coordinator; Griepenstroh asked that Manning send him a referral slip; and Shelton introduced Griepenstroh to others as the coordinator. Griepenstroh admits these factual assertions but argues that they are irrelevant because, pursuant to the County's contract with Shelton Excavating, only the union had authority to select the coordinator. While it is apparent from the record that Griepenstroh had a definite interest in seeking the coordinator's position, we agree that the State's assertions are irrelevant because we are presented with a narrow question of whether Griepenstroh committed perjury, not whether he had a conflict of interest, a charge for which he was acquitted.

The terms "selected" and "designated," as they are used in paragraph "M," are synonymous. "Select" is defined as, "chosen in preference to another or others, choose, or pick out." See Webster's New World Dictionary 1291 (2nd ed. 1982); Black's Law Dictionary 1525 (4th ed. rev. 1968). Likewise, "designate" is defined as, "point out, indicate, name, appoint, or set apart." See Webster's at 382; Black's at 533.

As the definitions suggest, the meaning of "select" and "designate" are also ambiguous, as there is no single, definitive meaning for those terms. Griepenstroh narrowly construes the words to mean that neither I & M, the Commissioners, nor Shelton Excavating actually chose or appointed him because none of them had authority to place him in the coordinator's position. However, the State broadly construes "selected or designated," as used in paragraph "M," to mean merely to name, point out or prefer. Both interpretations are equally plausible.

In a charge for perjury, "the questions and answers [in the statement] at issue must be interpreted in the context of what preceded and succeeded them." People v. Barrios (1985), Ill.App., 136 Ill.App.3d 197, 90 Ill.Dec. 869, 483 N.E.2d 16, 19, aff'd, (1986), Ill., 114 Ill.2d 265, 102 Ill.Dec. 522, 500 N.E.2d 415. A perjury conviction may not be sustained by lifting a statement of the accused out of its immediate context so that it has a meaning "wholly different than that which its context clearly shows." Van Liew v....