Vlietstra v. State

• Decision Date: 30 December 2003
• Docket Number: No. 46A04-0302-CR-54.,46A04-0302-CR-54.
• Citation: 800 N.E.2d 972
• Parties: Jeffrey A. VLIETSTRA, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

800 N.E.2d 972

Jeffrey A. VLIETSTRA, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 46A04-0302-CR-54.

Court of Appeals of Indiana.

December 30, 2003.

Peter L. Boyles, Martz & Boyles, Valparaiso, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Following a jury trial, Jeffrey A. Vlietstra was convicted of four counts of Receiving Stolen Property, a Class D felony.¹ Upon appeal, Vlietstra presents several issues for our review, which we restate as: (1) whether the trial court improperly admitted hearsay evidence; and (2) whether the evidence is sufficient to support Vlietstra's convictions.

We reverse.²

The record reveals that in the spring of 2001, Vlietstra told Richard Newenhouse that he had some John Deere tractors which he wished to sell. Mr. Newenhouse had previously purchased a Jeep from Vlietstra. Vlietstra eventually sold Mr. Newenhouse three John Deere tractors: a model number 425, which was sold for $2,000; a model number 445, which was also sold for $2,000; and a model number 4200, which was sold for $5,000. The tractors were delivered on three separate occasions. Mr. Newenhouse also received a front-end loader and a "brush hog" rotary mower from Vlietstra to attach to one of the tractors. Mr. Newenhouse sold one of the tractors, model number 425, to his father-in-law for $2,000. Mr. Newenhouse attempted to "wip[e] out" the PIN number³ on one of the tractors with a marker because he "figured there was something wrong with [the tractors]...." Transcript at 22.

On November 1, 2001, the police contacted Mrs. Newenhouse and accompanied her to the Newenhouses' home. One of the officers, Indiana State Police Detective Brian Olehy, received Mrs. Newenhouse's permission to check the tractors to determine if they had been stolen. Over Vlietstra's objections, Detective Olehy testified that he checked with the National Crime Information Center ("NCIC") and determined that the model number 445 tractor, the model number 4200, the front-end loader, and the mower had all been reported as stolen. Detective Olehy then confiscated the items so that they could be returned to their owners. The Newenhouses told the police that they had received the items from Vlietstra. The Newenhouses did not tell the police about the third tractor, model number 425, which had been sold to Mrs. Newenhouse's father. Nor did they speak of it when deposed by Vlietstra's trial counsel.

On November 21, 2001, the State charged Vlietstra with four counts of receiving stolen property. Count I pertained to the front-end loader; Count II pertained to the model 445 tractor; Count III pertained to the model 4200 tractor; and Count IV pertained to the mower. Approximately one week before trial, Captain Bernard Johnsen, Deputy Chief of the St. John Police Department, received a telephone call from Vlietstra, who was in jail at that time. Vlietstra informed Captain Johnsen of the tractor which Mr. Newenhouse had sold to his father-in-law. Vlietstra told Captain Johnsen that the tractor in question was a model 425 John Deere which had been taken from Klug Implement in Michigan. Vlietstra denied any involvement in the situation. A jury trial was held on September 17 and 18, 2002. The jury found Vlietstra guilty as charged, and on December 6, 2002, the trial court sentenced him to two years incarceration on each count, to run consecutively, for a total of eight years.⁴

Vlietstra claims that the trial court erred in admitting into evidence that portion of Detective Olehy's testimony wherein he referred to information he learned from the NCIC. At trial, Detective Olehy testified that he learned that the two tractors, the front-end loader, and the mower on the Newenhouses' property were stolen by running the items' information through the NCIC database. Vlietstra claims that the trial court erred in overruling his hearsay objections to this testimony. Decisions regarding the admissibility of evidence are within the trial court's sound discretion and will not be reversed absent an abuse of that discretion. Cockrell v. State, 743 N.E.2d 799, 804 (Ind.Ct.App. 2001). Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Id. (citing Ind. Evidence Rule 801(c)). Hearsay which does not fall within an exception to the hearsay rule is inadmissible. Id. (citing Ind. Evidence Rule 802).

In support of his claim that information received from the NCIC is hearsay, Vlietstra cites Broecker v. State, 161 Ind.App. 206, 314 N.E.2d 428 (1974), and Gibbs v. State, 426 N.E.2d 1150 (Ind.Ct.App.1981). In Broecker, the defendant appealed his conviction for auto theft, claiming in part that testimony at his trial referring to information received from the NCIC was inadmissible hearsay. The Broecker court held that the defendant had failed to properly preserve the error for appeal. 161 Ind.App. at 208,314 N.E.2d at 429. Nevertheless, the court addressed the merits of the defendant's claim and concluded that the evidence was not offered to prove the truth of the matter asserted. 161 Ind. App. at 209,314 N.E.2d at 430. The court further held that even if the evidence had been erroneously admitted, it was harmless error. Id. Similarly, in Gibbs, the defendant claimed that the trial court erred in allowing a police officer to testify as to information he had garnered from the NCIC. The Gibbs court held that the officer's testimony was cumulative of other evidence and at most harmless error. 426 N.E.2d at 1157. Thus, neither of the cases cited by Vlietstra specifically holds that information from the NCIC is hearsay.

Be that as it may, we conclude that Detective Olehy's testimony regarding the information he received from the NCIC was, by definition, hearsay.⁵ It was a statement⁶ made out of court and offered to prove the fact that the property in question was stolen. The trial court thus erred in admitting such into evidence. At trial, the State made no attempt to establish that the NCIC information fit within one of the various exceptions to the hearsay rule. Upon appeal, the State makes no argument that the NCIC testimony was not hearsay or fit within any exception to the hearsay rule but argues solely that the admission of the NCIC information was at most harmless error.

Before we address the question of harmless error, we consider whether the evidence, absent Detective Olehy's improperly admitted testimony concerning information he learned from the NCIC, is insufficient to support Vlietstra's convictions for receiving stolen property. The statute defining this crime reads, "A person who knowingly or intentionally receives, retains, or disposes of the property of another person that has been the subject of theft commits receiving stolen property, a Class D felony." I.C. § 35-43-4-2(b). Thus, to convict Vlietstra, the State had to prove the property at issue in the present case was the subject of a theft.⁷

In response to Vlietstra's claim of insufficient evidence, the State points to several pieces of evidence introduced at trial: that Vlietstra sold the property to Mr. Newenhouse for less than fair retail value; that Mr. Newenhouse paid for the property in cash; that no paperwork was executed for the sale of the property; that Vlietstra delivered the two tractors at issue here on separate occasions; that Vlietstra told Mr. Newenhouse that he would deliver a mower deck for one tractor but instead delivered the rotary mower and front-end loader; that the tractors appeared relatively new and came with keys and operating manuals; that the police confiscated the property in question and "returned it to the original owners," Appellee's Brief at 17; and that Vlietstra told Captain Johnsen about the third tractor which Mr. Newenhouse had sold to his father-in-law.

We fail to see how some of the evidence cited by the State establishes that the property in question was stolen. That the tractors were delivered on separate occasions and that Vlietstra delivered attachments different from what was agreed to seem to us irrelevant to the issue of whether the property was stolen. Similarly, that the tractors were delivered with keys and operating manuals does not support an inference that they were stolen. The fact that Mr. Newenhouse paid in cash is a relatively benign fact, which neither supports nor refutes an inference that the property paid for was stolen. Although the State's argument on this point is not entirely clear, the fact that no "paperwork" was executed is similarly a neutral factor. The State does not suggest that one is required to execute any paperwork when selling a tractor and/or attachments thereto. Though, if stolen tractors were being sold, one would not expect the deal to be memorialized in writing. The fact that the tractors appeared relatively new and were sold for less than fair retail value might raise suspicion regarding the transaction. Yet this does not establish that the property was stolen.

As far as the evidence regarding the conversation between Vlietstra and Captain Johnsen, this too does not establish that the property was stolen.⁸ Of all the items involved, the hearsay evidence would suggest that only two were reported stolen from the same county.⁹ Moreover, the evidence which is claimed to establish the situs of the thefts for which Vlietstra was charged came from the NCIC. It too was inadmissible hearsay and cannot be used to support the convictions. Therefore, the fact that Vlietstra knew certain details concerning the theft of the tractor which was eventually sold to Mr. Newenhouse's father-in-law cannot be used in conjunction with inadmissible evidence to establish that the property was stolen.

A slightly more probative piece of evidence is Detective Olehy's testimony that he confiscated the...