Kollar v. State

• Decision Date: 25 June 1990
• Docket Number: No. 71A03-8906-CR-217,71A03-8906-CR-217
• Citation: 556 N.E.2d 936
• Parties: Steven KOLLAR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 936

556 N.E.2d 936

Steven KOLLAR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 71A03-8906-CR-217.

Court of Appeals of Indiana,

Third District.

June 25, 1990.

Mark A. Lienhoop, Newby, Lewis, Kaminski & Jones, LaPorte, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Steven Kollar was convicted by a St. Joseph Superior Court jury of five counts of theft, a class D felony, ¹ and one count of corrupt business influence, a class C felony. ² Kollar raises three issues on appeal:

1. Whether the evidence was sufficient to sustain his convictions?

2. Whether he was denied the effective assistance of counsel?

3. Whether the trial court erred in imposing his sentence?

We affirm.

Kollar owned and operated a coin shop in LaPorte, Indiana. In 1982, Kollar established what he termed a "one percent plan," whereby customers would purchase silver which was maintained at the coin shop. In return for the use of the silver, Kollar would pay one percent (1%) interest per month to the participants of the plan. Under the terms of the plan, the silver was available for price liquidation at any marketable hour. Too, the silver could be returned to the customer at any time with proper written notice.

In September of 1986, four gold boxes of coins worth approximately $212,000 were stolen from Kollar's store. Despite this reversal, business continued until June of 1987, when Kollar received several bad checks at a coin show. Kollar's coin shop closed shortly thereafter. The following is a synopsis of the transactions Kollar engaged in during the lifetime of his coin business which directly led to his convictions of theft and corrupt business influence.

On February 6, 1984, Dennis Gerrard purchased 100 ounces of silver under the "one percent plan." He later purchased another 300 ounces of silver. Gerrard received his monthly interest payments until Kollar's coin shop went out of business in June of 1987. The next month, Gerrard attempted to reclaim his four hundred ounces of silver. At that time, Kollar asked Gerrard to give him several weeks to obtain the silver. Kollar later tendered excuses as to why the silver had not been obtained. Gerrard never received his silver. He later obtained a judgment in small claims court against Kollar for $3,000.00.

Jim Eggleston entered the "one percent plan" in 1985 with a purchase of 1,470 ounces of silver. Eggleston paid $9,996.00 for the silver. In early 1986, Eggleston advised Kollar that he wanted out of the "one percent plan." After numerous delays and excuses offered by Kollar, Eggleston received only 200 ounces of silver. His loss was approximately $11,162.00.

On April 22, 1987, Frank Horvath paid Kollar for 12 ounces of gold and 800 ounces of silver. Horvath received the majority of the metals, but he did not receive two ounces of gold worth approximately $930.00. Horvath later received a judgment against Kollar in small claims court.

Also in April of 1987, Dean Bixler agreed to purchase 719 ounces of silver from Kollar. Bixler paid Kollar a total of $5,024.00 for the silver, but received only four hundred and ninety-seven (497) ounces of his silver. When Bixler requested the remaining silver, Kollar gave numerous excuses for its unavailability. Bixler later obtained a small claims judgment against Kollar for $1,864.80.

Marla and William Spies agreed to buy 738 ounces of silver from Kollar in May of 1987. The Spies' paid $5,998.40 at that time, and were told by Kollar that they could have their silver in two weeks. After two weeks had passed, Kollar informed the Spies that he was experiencing difficulty with the buyer and requested more time. The Spies later received 200 ounces of silver, but never received the remainder of their purchase. Their loss was approximately $4,000.00.

Several witnesses were presented at trial who had also participated in the "one percent plan" but had never received their principal investment. One of these witnesses had received neither his principal investment nor his interest payments. Additionally, David Hendrickson, an expert in the field of coin and precious metals dealing, testified that it was neither economically feasible nor commonly accepted practice for a coin and precious metal dealer to retain precious metal and pay the customer one percent interest per month. In the expert witness' opinion, the "one percent plan" was similar to a pyramid scheme and Kollar should have "seen the writing on the wall" at least one year in advance. (Record at 253, 254.)

I. Sufficiency

Kollar first contends that the evidence was insufficient to support his convictions of five counts of theft and one count of corrupt business influence. To facilitate an orderly review of the question of whether Kollar's theft convictions are supported by sufficient evidence, we must first clarify a misconception regarding the elements of theft upon which the bulk of Kollar's arguments are premised.

"Theft" is defined as:

... knowingly or intentionally exert[ing] unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use IC 35-43-4-2(a). Control over the property of another is "unauthorized" if it is exerted:

* * * * * *

(4) by creating or confirming a false impression in the other person; [or]

* * * * * *

(6) by promising performance that the person knows will not be performed;

* * * * * *

IC 35-43-4-1(b).

Kollar was charged and convicted of theft under IC 35-43-4-1(b)(6), i.e., theft "by promising performance that the person knows will not be performed." However, Kollar argues that, according to Miller v. State (1989), Ind.App., 535 N.E.2d 170, reh. denied, the State must also prove that a defendant "created or confirmed a false impression in the other person" pursuant to IC 35-43-4-1(b)(4) in order to prove theft under IC 35-43-4-1(b)(6). As Kollar correctly points out, a conviction of theft by false pretenses under IC 35-43-4-1(b)(4) requires a showing that misrepresentations as to past or present facts were made in order to gain possession of another's property. Convictions under this subparagraph cannot be premised upon misrepresentations which were promissory in nature, such as promises to repay loans. Coburn v. State (1984), Ind.App., 461 N.E.2d 1154, 1156-1157. However, we conclude that Kollar's interpretation of Miller is erroneous; proof of an offense defined under IC 35-43-4-1(b)(6) does not also require proof of the offense defined in IC 35-43-4-1(b)(4).

In Miller, we held that any specification in the charge of theft under a particular subparagraph of IC 35-43-4-1(b) is surplusage and cannot result in a fatal variance between the charge and the proof. We added that the various enumerated incarnations of "unauthorized control" supported this conclusion because they do not purport to be mutually exclusive. The following improvident language was used to illustrate this point and was seized upon by Kollar in forming his arguments:

For example, promising performance under (6) certainly creates a false impression under (4) that vitiates any consent under (1) and represents an exertion of control in an unintended manner under (2).

Miller, supra at 171. "Promising performance that the person knows will not be performed" under subparagraph (6) does not create a "false impression" under subparagraph (4), since proof of the creation of a "false impression" definitionally excludes the promise of future performance. To an extent, subparagraph (6) can be considered to "pick up" where subparagraph (4) ends. Thus, we disregard Kollar's contentions of insufficient evidence based upon failure to prove misrepresentation of past or existing fact.

The key to the offense of theft by promising performance that the person knows will not be performed is the intent of the person when he secures control of the property. Miller, supra at 172. In order to have met its burden under this subsection, the State must have proven beyond a reasonable doubt that Kollar knew at the time he procured the money from his victim that his promises would not be performed. Id. On appeal, we do not reweigh the evidence or judge the credibility of witnesses. In sufficiency cases, we look exclusively to the evidence most favorable to the State and all inferences logically drawn therefrom. If there is substantial evidence of probative value to support the conviction, it will be affirmed. Jewell v. State (1989), Ind., 539 N.E.2d 959, 964.

Kollar argues that the evidence does not support a conclusion that he had the intent to deprive Gerrard and Eggleston of their money or silver at the times their separate purchases occurred. Kollar argues that the 1% plans purchased by Gerrard and Eggleston occurred prior to the theft of the $212,000 worth of gold coins from his business, and thus that he could not have been aware at the time of the purchases that he would be unable to honor their repayment requests. However, the record shows that the gold coins were stolen in September of 1986. Eggleston requested the return of his silver in February of 1986, at which time Kollar told Eggleston that he would comply with his request. In August of 1986, after repeated phone calls and attendant excuses, Kollar produced only 200 of the 1,470 ounces of silver owed. All of this preceded the alleged financially crippling theft of the gold coins. Too, Kollar's behavior in failing to produce Eggleston's principal investment and providing numerous excuses for that failure was distinctly similar to his behavior with investors who made their purchases throughout the lifetime of his business. From this, the jury was entitled to infer that Kollar never intended to return silver purchased and placed in his keep under the 1% plan. Intent may be proved by circumstantial evidence. Anglin v. State (1986), Ind., 490 N.E.2d 721, 723.

Kollar...