Grove v. State

• Decision Date: 09 June 1983
• Docket Number: No. 4-182A6,4-182A6
• Citation: Grove v. State, 449 N.E.2d 1122 (Ind. App. 1983)
• Parties: Charles GROVE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1122

449 N.E.2d 1122

Charles GROVE, Appellant (Defendant Below), v.STATE of Indiana, Appellee (Plaintiff Below).

No. 4-182A6.

Court of Appeals of Indiana Fourth District.

June 9, 1983.

Susan K. Carpenter, Public Defender of Ind., David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Charles ("Buddy") Grove appeals after a jury found him guilty of theft (a class D felony, Ind.Code 35-43-4-2(a)).He was accused of stealing porch furniture and delivering it to an auction house where it was later sold along with other of his furniture.Thereafter, he cashed a check received from the auction house.On appeal, he raises five issues, claiming the trial court erred:

1. in permitting Joe Mahfouz, owner of the auction house, to testify regarding telephone calls which he received from "Buddy Groves";

2. in not instructing the jury as to the limited purpose for which Mahfouz's testimony could be used;

3. in admitting an exhibit, the check from the auction house, which was not listed in the State's pre-trial list of witnesses and exhibits;

4. in refusing to strike rebuttal testimony of Grove's reputation offered through prosecution witnesses Wayne Thompson and Robert Clements;

5. in sustaining the verdict when there was insufficient evidence to support the conviction.

For the reasons stated below, we affirm.

FACTS

Sometime during the early morning hours of September 1, 1980, two pieces of wicker porch furniture (a settee and chair) disappeared from the home of Hazel Gilmore in Parker City, Indiana.Gilmore reported the loss to Rex Amburn, the town marshal, who, two days later, received an anonymous phone call advising him the missing furniture could be found at Mahfouz's Auction Company, located near Muncie, Indiana, about ten miles away.Amburn and Deputy Marshal Ed Fodrea investigated and found Gilmore's settee and chair at the auction house.They then confiscated the furniture and returned it to Gilmore.The furniture had been marked as LotNo. 112 by the auction company, a designation which corresponded to a consignment check-in sheet which listed Buddy Grove, 432 S. Franklin, Parker, Indiana, as seller.Grove was then arrested and charged with theft.

At trial, Joe Mahfouz, proprietor of the auction house, testified that a person identifying himself as "Buddy Groves" had called Mahfouz at his home early on the morning of September 1, 1980, indicating that he had some furniture he wished to consign for sale at an auction to be held that evening.The caller stated he was leaving town for the day and needed to drop off the furniture before leaving.Mahfouz informed the caller that his business did not open until noon, but told him to leave the furniture in a dump truck parked outside the auction house.Mahfouz had never spoken with Grove previously and identified the caller only from the statement of his name in the phone conversation.That afternoon, Mahfouz found the wicker lawn furniture, which was later identified as Gilmore's, placed in the dump truck.He ordered his employees to remove the furniture from the truck and prepare it for auction sale that evening.

Leo Beechboard, Sr., a Mahfouz employee, testified that a Buddy Grove had brought a lo-boy dresser into the auction company on August 28, 1980, for sale at Mahfouz's September 1, 1980, auction and had told Beechboard, Sr. he would bring more furniture for the sale later.A consignment sheet was filled out listing the dresser.Mahfouz told his employees of the call from "Buddy Groves," and the wicker furniture found on the dump truck was included on Grove's previous consignment sheet and sold at auction, bringing a price of $102.50.

The day following the sale, Mahfouz received a phone call from a person who again identified himself as "Buddy Groves," who inquired as to how much the furniture had brought.Mahfouz told him the amount and indicated Grove could pick up his check.Mahfouz then prepared an envelope containing Grove's check and a copy of the consignment sheet and gave it to another employee, Leo Beechboard, Jr. for delivery.Beechboard, Jr. testified he received a phone call September 3, 1980, from a person identifying himself as Buddy Grove, who told Beechboard to mail the check.Beechboard, Jr. then wrote the Parker, Indiana address from the consignment sheet on the letter but found he lacked the correct zip code.He then called the number on the sheet, asked for Grove, was given the zip code by a person identifying himself as Grove, and mailed the check and the consignment sheet itemizing the property.

Karen Six, a teller at the Parker Banking Company in Parker City, testified Buddy Grove, whom she identified as the defendant, cashed CheckNo. 1023 from the Mahfouz Auction Company on September 4, 1980, and received $108.^*Deputy Marshal Fodrea also testified that during the course of his patrol on September 1, 1980, he spoke with Grove and two others about 2:30 A.M.At that time, Grove and his friends were in a pick-up truck parked in front of a residence located two houses away from Hazel Gilmore's home.

Grove presented an alibi defense, urging that he had stayed out all night with friends on August 31, 1980, and had left for King's Island amusement part in Cincinnati, Ohio early on the morning of September 1, 1980.He denied stealing Gilmore's furniture or calling Mahfouz, although he admitted he wrongfully cashed a check from Mahfouz's Auction Company which he was aware was made out in an amount greater than he had earned from the sale of the lo-boy dresser he had brought in for the auction.Grove said he had cashed the check made out for the larger amount because he needed the money to pay a debt.

DECISION

Issue One--Mahfouz's Testimony Regarding Phone Calls

Grove contends the trial court erred in allowing Joe Mahfouz, owner of Mahfouz's Auction House, to testify regarding the phone calls he received September 1, 1980, and September 2, 1980, from a person identifying himself as "Buddy Groves."At trial, Grove objected to Mahfouz's testimony as unauthenticated and hearsay.The State urged that the conversations were being offered to set the stage for later testimony.The trial court agreed and also noted the conversation could be part of the modus operandi.On appeal, Grove asserts that Mahfouz's inability to identify the caller by other means than the caller's statement he was "Buddy Groves" rendered the calls inadmissible.He also argues the admission of the conversations to set the stage for later testimony was improper, urging the only possible relevance of the calls was to prove that the caller was indeed Grove.

We disagree and conclude the conversations were admissible to provide the background facts surrounding the sale of Gilmore's furniture, to explain the subsequent acts of Mahfouz's employees in placing the stolen furniture on the consignment sheet assigned to Grove and to give legal significance to the knowledge of Grove of items sold in his name for which he accepted payment.SeeKolb v. State, (1972)258 Ind. 469, 282 N.E.2d 541(contents of threatening phone call admitted to show witness was placed in fear and circumstances involved);U.S. v. Hickman, (7th Cir.1970)426 F.2d 515cert. denied, 402 U.S. 966, 91 S.Ct. 1632, 29 L.Ed.2d 130(1971)(contents of telephone conversation admissible to explain why federal agents were watching certain Gary, Indiana, restaurant);U.S. v. Demopoulos, (7th Cir.1974)506 F.2d 1171cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 673(1975)(telephone conversation admitted for limited purpose of providing background operative facts to show reason for subsequent acts of witnesses).

Thus, inasmuch as Mahfouz's testimony regarding the telephone conversations was not offered to evidence the truth of the matter contained therein, the hearsay rule was inapplicable and the evidence was properly admitted.

Issue Two--Limiting Instruction

Grove alleges the trial court erred by not giving the jury a cautionary instruction as to the limited purpose for which Mahfouz's testimony could be used though he admits he did not tender such instruction to the court.At trial, Grove orally requested the court to give "a precautionary instruction as to what [Mahfouz's] testimony was being used for."However, he neither tendered such instruction nor made any proposal as to its contents.He also made no objection to the court's final instructions which did not include any precaution regarding the consideration of Mahfouz's testimony.In his appellate brief, Grove admits his failure to tender such limiting instruction but insists the tender would have been useless in light of the court's action on his oral request.He also argues in his reply brief that the requirement of a written tendered instruction should not apply to cautionary instructions limiting the use of testimony although he concedes

"prudent counsel who wished to be totally sure of protecting his [r]ecord would probably want to not only ask for an oral limiting instruction to the jury at the time the evidence was admitted, but also tender a written instruction to be read to the jury in the final charge."(Reply brief, p. 8).

Our supreme court has frequently held that the failure to tender a written instruction waives any alleged error in the failure to give a requested instruction.Begley v. State, (1981) Ind., 416 N.E.2d 824;Miller v. State, (1978)267 Ind. 635, 372 N.E.2d 1168.In Miller, supra, as in the case before us, the defendant made an oral request but did not tender the requested instruction to the court.In addressing the defendant's claim of error in the omission of the instruction, our supreme court said:

"This court has previously held that if a party requests the court to instruct the jury, such instruction should be tendered in writing.Failure to tender an instruction in...