State v. Kennedy
| Decision Date | 18 December 1974 |
| Docket Number | No. 56458,56458 |
| Citation | 224 N.W.2d 223 |
| Parties | STATE of Iowa, Appellee, v. Richard Dale KENNEDY, Appellant. |
| Court | Iowa Supreme Court |
David A. Elderkin, Cedar Rapids, for appellant.
Richard C. Turner, Atty. Gen., Jim P. Robbins, Asst. Atty. Gen., and William G Faches, Linn County Atty., for appellee.
Heard before MOORE, C.J., and MASON, UHLENHOPP, REYNOLDSON, and mCCORMICK, JJ.
This appeal involves problems which arose during trial of a charge of tampering with a motor-vehicle odometer, an indictable misdemeanor under § 321.71(2) and (16), Code 1973:
2. No person shall knowingly tamper with, adjust, alter, change, set back, disconnect or fail to connect the odometer of any motor vehicle, or cause any of the foregoing to occur to an odometer of a motor vehicle, so as to reflect a lower mileage than the true mileage driven by the motor vehicle.
16. Any person who violates the provisions of this section shall be punished by a fine of not less than four hundred dollars and not more than one thousand dollars or by imprisonment in the county jail for a period not to exceed ninety days, or punished by both such fine and imprisonment.
Under § 321.71(8), since revised, the transferor of a motor vehicle must provide the transferee with a signed certification of the odometer reading. The transferee's new title certificate shows that mileage.
The parties waived a jury. Code 1973, § 780.23. The trial court could find the following from the evidence. Continental Oil Company, through its office in Cedar Rapids, Iowa, owned a Plymouth station wagon which was registered in Linn County, Iowa, and was driven by Continental's employee, James A. Martin. In July 1972, Continental traded the car to First Avenue Plymouth in Cedar Rapids. At that time, according to Martin, the car had been driven nearly 100,000 miles. First Avenue Plymouth transferred the car to Cedar Valley Motors of Cedar Rapids, which sold the car to defendant Richard Dale Kennedy of Cedar Rapids and certified that the true mileage on the car was unknown but that the odometer read 99,123.8 miles. Defendant paid $1000 for the car according to his signed application for a title certificate. Some of the testimony indicates that the transaction between Cedar Valley and defendant occurred in July 1972; Cedar Valley's odometer certification was dated July 31, 1972; but defendant's title certificate was dated August 24, 1972. Defendant's title certificate recited, 'Mileage UNK.'
About September 6, 1972, defendant sold the car for $1800 to John T. Marshall, a plant employee in Cedar Rapids. In connection with that sale, defendant certified that the true mileage on the car was 51,547 miles. But for reasons of his own, defendant did not certify the odometer reading. However, the odometer in fact read about 51,500 miles, which defendant orally assured Marshall was correct. Copies of the two odometer certifications are appended. Marshall's title certificate recited, 'Mileage 51547,' and stated that the car was encumbered to Marshall's credit union.
ODOMETER CERTIFICATION
To be completed by seller
Required on all 1969 and subsequent year motor vehicles
DESCRIPTION OF MOTOR VEHICLE
Make Plymouth Year 1969
------------------------------------------ --------------------------
V.I.N. (Serial No.) PL45H9D-30-7286
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Plate No 57-49113 Year 1972
-------------------------------------- --------------------------
Name of Transferor
[handwritten] Cedar Vally Motors Inc
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I hereby certify that to my best knowledge and belief the mileage as shown on
the odometer and the true mileage traveled by the above described vehicle on
the date of transfer thereof are as follows:
I hereby certify that to my best knowledge and belief the mileage as shown on
the odometer and the true mileage traveled by the above described vehicle on
the date of transfer thereof are as follows:
TRUE MILEAGE 51547
-------------------
ODOMETER MILEAGE -------------------
9-72 /s/ signature
------------------------- ----------------------------------------------------
Date Signature of Transferor
The Linn County attorney charged defendant with tampering with an odometer. At trial the State introduced evidence of the matters we have related, including copies of the significant documents: the title certificates and odometer certifications kept in the Linn County treasurer's office. Defendant objected to the introduction of those documents but the trial court overruled the objections. Defendant did not introduce any evidence.
At the conclusion of the evidence, defendant moved for dismissal of the charge. The trial court overruled the motion.
The trial court found defendant guilty and sentenced him. Defendant appealed.
In this court defendant urges that the trial court erred in overruling (1) his objections to the documents and (2) his motion to dismiss.
I. Rulings on Evidence. The duplicates of the title certificates and odometer certifications
were identified by the county treasurer as a witness at the trial. The documents purported to relate to the car in question and to Richard Dale Kennedy, but defendant objected to them on two grounds: insufficient foundation and hearsay.
An objection of insufficient foundation is not sufficiently specific. State v. Buckner, 214 N.W.2d 164 (Iowa); State v. Buchanan, 207 N.W.2d 784 (Iowa). We have examined the transcript, however, and have found that defendant did apprise the trial court of the reason he thought the foundation insufficient: the State had not shown the 'Richard Dale Kennedy' named in the documents was the same individual as defendant. Assuming arguendo that this objection was good when made, the State connected up the documents by showing by the witness Marshall that defendant was the individual involved in the transactions involving this vehicle. See McCormick, Evidence, § 58 at 134 (2d ed.) (connecting up by showing missing fact); 53 Am.Jur. Trial § 116 at 103 (). Hence no error appears at this juncture.
As to the hearsay objection, we must consider (a) the title certificates and (b) the odometer certifications. By offering the title certificates, the State was trying to prove that from approximately July to early September, 1972, defendant owned the car. Under our statute, ordinarily no person can acquire ownership of a car 'except by virtue of a certificate of title issued or assigned to him for such vehicle or by virtue of a manufacturer's or importer's certificate delivered to him for such vehicle;' and 'no court in any case at law or equity shall recognize the right, title, claim or interest of any person in or to any vehicle subject to registration sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer's or importer's certificate duly issued or assigned in accordance with the provisions of this chapter (321).' Code 1973, § 321.45(2) and (2) (d). Thus the title certificate itself constitutes the evidence of title. Farmers Butter & Dairy Coop. v. Farm Bureau Mut. Ins. Co., 196 N.W.2d 533 (Iowa); State Farm Mutual Automobile Ins. Co. v. Wyant, 191 N.W.2d 689 (Iowa); Stam v. Cannon, 176 N.W.2d 794 (Iowa). In offering the title certificates here, the State was endeavoring to prove the certificates themselves. Hence the certificates were not hearsay. State v. Ostrand, 219 N.W.2d 509 (Iowa); 31A C.J.S. Evidence § 260 at 680; 29 Am.Jur.2d Evidence § 859 at 960.
But the odometer certifications are different. The State was trying to prove that the mileage was about 99,000 when defendant bought the car and about 51,500 a short time later when he sold it. The State offered the two odometer certifications to prove those mileages. Since the odometer certifications were offered to prove the truth of the mileages stated in them, they were hearsay. State v. Miller, 204 N.W.2d 834 (Iowa). Were they within an exception to the hearsay rule?
Defendant's own odometer certification was an admission and therefore within the exception for a party's own statements. 29 Am.Jur.2d Evidence § 600 at 655; 31A C.J.S. Evidence § 272 at 696. Cedar Valley Motors' odometer certification to defendant was admissible as an admission regarding the car by defendant's predecessor in title. We recognize the doctrine of admissions by privies in title, espoused in IV Wigmore,...
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