Long v. State
| Decision Date | 05 June 2007 |
| Docket Number | No. 76A05-0607-CR-387.,76A05-0607-CR-387. |
| Citation | 867 N.E.2d 606 |
| Parties | Gregory John LONG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Linda M. Wagoner, Angola, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Gregory John Long appeals his convictions, after a trial by jury, on one count of corrupt business influence, a class C felony, and two counts of theft, as class D felonies, and the sentence imposed by the trial court thereon.
We affirm.
1. Whether sufficient evidence supports the convictions.
2. Whether Long received ineffective assistance of trial counsel.
3. Whether Long's sentence is inappropriate.
4. Whether sufficient evidence supports the trial court's restitution order.
Long owned and operated Durability Plus Engines, Inc., in Angola; he testified that he started the company in 1983. Durability Plus designed, built, rebuilt, and restored engines. Durability Plus also sold engine parts and engines to the public, and some of those products were offered for sale on eBay.
In October of 2004, Ronald Barone of Alabama, New York saw a listing — described by Long as "like putting an ad in the newspaper," (Tr. 372) — on eBay that offered a "[b]rand new NOS [c]rossram system" with a specific GM parts number for a Z-28 Camaro automobile. (Ex. 12). Before bidding, Barone called the telephone number provided in the eBay listing, and he spoke with Long. To Barone, "NOS" or "new old stock mean[t] built in 1969," (Tr. 236); thus, a NOS cross ram system with the listed GM part number was "a system" that included "the parts that went with" the cross ram and was "cast in 1969" and available for purchase at that time. (Tr. 219, 230). Barone told Long that he wanted "a real, new old stock cross ram" and not "a reproduction." (Tr. 219). Long "assured" Barone that what he was offering to sell "was a real one" and stated "that he had twelve of them that he bought back in '69." Id. Barone submitted the "winning bid" of $10,100.00 for a new system as offered. (Ex. 12). Long then informed Barone that a hood was not included in the system and would be an additional $425.00. After adding the shipping charges and the price for a hood to the bid amount, Barone sent Long a check dated October 26, 2004, in the amount of $10,820.00 and made out to Durability Plus Engines. The check cleared Barone's bank. After having not received the system, Barone started calling Long to inquire about the status of his order, and Long "kept telling" him that it would "be out shortly." (Tr. 223). In late November, Barone received a "scratched" hood with "damage all over" and "broken corners." Id. Three days later, "the cross ram showed up" and Barone "immediately . . . noticed it wasn't a real one" but a reproduction. Id.
Barone called Long, who said "it should be a real one" and that he would "try to make it right" and send "a real NOS system." (Tr. 224). "[T]hree months later," Barone received "another fake." (Tr. 225). Long then called to ask Barone to send the first cross ram back, and Barone responded that if Long refunded his money, he would return the system sent by Long. Long never sent Barone a refund, and the two reproduction cross rams remained in Barone's possession.
Allen Stoltz lived in British Columbia, Canada. In October of 2004, Stoltz saw the listing by Durability Plus on eBay that offered a brand new NOS cross ram intake system for a Z-28 Camaro automobile and had sold for a winning bid of $10,100.00 plus shipping. To Stoltz, "NOS mean[t] new old stock," "a brand new, never bolted on" unit that had been "cast in 1969 or ['6]8 when they were first produced." (Tr. 192). Stoltz telephoned the number in the listing "to ask if [the seller] had any more NOS cross ram units for sale" and spoke with Long. (Tr. 191). Stoltz testified that Long "said he had approximately sixteen that he had bought way back when, in '69 or early seventies," and that he and Long "agreed on a price." (Tr. 193). Long sent Stoltz a statement dated October 28, 2004, from "Durability Plus Engines, Inc.," (Ex. 9), indicating that the cross ram system and some additional parts (including a hood and a water pump) would cost a total of $13,170.00. Stoltz sent Long a check payable to "D.P.E., Inc." dated November 3, 2004, in the amount of $13,170.00. The check cleared, but Stoltz did not receive the merchandise he had ordered.
Stoltz telephoned Long, who informed him his order "was boxed and sitting there waiting for shipment." (Tr. 195). When the order did not arrive, Stoltz made several more telephone calls to Long, who continued to promise shipment. In January of 2005, Stoltz received "a very cheap knock off" air cleaner "with the wrong air filter inside it," "a very pitted rebuilt water pump," and a "cracked hood."1 (Tr. 196, Ex. 11). Stoltz telephoned Long, and Long "admitted that he did not, in fact, have an NOS cross ram" but would send Long "a cross ram that's better than NOS." (Tr. 198). Stoltz responded that he "paid for . . . an NOS cast in '69 intake for a '69 Z-28, not a reproduction." Id. Stoltz asked for his money back, and Long responded, "Not gonna happen." Id. Stoltz heard nothing further from Long until after March 11, 2005. After that date, Stoltz received from Long another reproduction cross ram. Subsequently, Long sent Stoltz what he promised "was the real deal" — which he said had cost "huge money." (Tr. 200). At that point, Stoltz had been sent three cross rams: two were "fake cross rams," and one was "a used, original cross ram." (Tr. 215).
On March 11, 2005, the State had charged Long with seven counts of theft, as class D felonies, and with one count of corrupt business influence, a class C felony. Some of the charges were amended on February 22, 2006. Long was tried by a jury on February 23-24, 2006. The trial court informed the jury that Long was charged, inter alia, with two counts of theft: that he "knowingly or intentionally exert[ed] unauthorized control over" (1) $13,170.00 that was "the property of Al Stoltz with the intent to deprive" Stoltz of the use or value of that property, (Tr. 128); and (2) $10,820.00 that was "the property of Ron Barone with the intent to deprive" Barone of the use or value of that property. (Tr. 130). The trial court further informed the jury that Long was charged with the offense of corrupt business influence: that "between May 7, 2004 and November 10, 2004," Long committed "a pattern of profiteering activity" — consisting of, inter alia, the "theft from Al Stoltz" of "$13,170.00 on November 10, 2004," and the "theft from Ron Barone of $10,820.00 on November 1, 2004," and that he "did knowingly or intentionally maintain an interest in or control of an enterprise" — Durability Plus Engines. (Tr. 131, 132).
Before testimony began, a motion for separation of witnesses was granted. Barone and Stoltz testified as reflected above. In addition, Barone testified that when he placed his order with Long and sent him a check in the amount of $10,820.00, he expected to receive a NOS cross ram unit for his 1969 Z-28 Camaro; and that at the time of trial, he had received none of his $10,820.00 back and had never received the new NOS cross ram system he ordered. Stoltz testified that by the time of trial, he had received "part of the $13,170.00" he had sent to Long; and that he had sent "both of the fake cross rams back" to Long but retained possession of the "used, original cross ram." (Tr. 199, 215). Stoltz further testified that he never received the NOS cross ram system he ordered from Long. The jury found Long guilty of having committed the crimes of theft — from Stoltz and from Barone, and of the crime of corrupt business influence as charged.2
The trial court held the sentencing hearing on July 14, 2006. The trial court admitted into evidence a psychiatric evaluation of Long by Dr. Francis Cyran, who reported that Long suffered from bipolar disorder, "a serious mental disorder," but had "been able to structure his life in such a manner that he functions as a productive member of society." (App. 114). Dr. Cyran opined that "prolonged incarceration" would create a substantial risk that Long's mental condition would "deteriorate." Id. The trial court found that Long "ha[d] an extensive criminal history," and noted that after being diagnosed as bipolar, Long had failed to comply with treatment.3 (Tr. 674). It sentenced Long to a term of three years for each conviction of theft (as D felonies), with those sentences to be served consecutively. The trial court then imposed a sentence of eight years on the corrupt business influence conviction, a class C felony, with that sentence to be served concurrently with the theft sentences. In addition, the trial court ordered Long to pay restitution to Barone in the amount of $10,820.004 and to Stoltz in the amount of $4,000.00.5
When addressing a claim of insufficient evidence, we do not reweigh the evidence or judge the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005). Moreover, we "must consider only the probative evidence and reasonable inferences supporting the verdict." Id. Thus, we "must affirm" if the probative evidence and reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.
Long argues that conviction for the offense of corrupt business influence requires proof of two "elements, namely an enterprise and a pattern of criminal activity," and "the evidence did not support either prong required for conviction." Long's Br. at 7. We cannot agree.
As noted above, the jury was instructed that the State had alleged that Long committed the offense of corrupt business...
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