By RICHARD WEATHERINGTON
Every year countless theft cases hinge on the meticulous records produced and the procedures followed by pawnshops in every state. It is often the testimony of a pawn shop employee that puts the nail in the criminal’s coffin. Recently, an Indiana man found out just how effective that paper trail can be.
In June 2009, a man, whose first name was Marvin, and an accomplice went to a friend’s apartment. Marvin brought his bicycle with him. Because of building policy, Marvin was told to put the bicycle in the basement.
When Marvin left, he took his bicycle, while his accomplice carried out a red, ten-speed Huffy bicycle. That evening, Marvin took the red Huffy to an Indiana pawn shop and sold it for $15.
The next day, another tenant in the apartment building reported his red, ten-speed, Huffy bicycle had been stolen from the basement. A local police officer, who also worked as security guard at the apartment building, reviewed the video footage taken from several cameras inside the apartment building.
Marvin and his accomplice were shown visiting the apartment and then leaving with the other tenant’s bicycle. After both men were identified, the officer filed a police report.
The lead police detective entered Marvin’s name in “Leads Online,” a database containing information entered by pawn shops throughout the country. Through the database, the detective learned that Marvin had pawned a red Huffy bicycle at the pawn shop. She contacted the detective attached to the police department’s pawn unit.
The law required that pawn shops create a pawn card that records the pawn transaction and which is kept by the police pawn unit. The pawn card contained Marvin’s name and identifying information, the specific characteristics of the bicycle, his thumbprint, and signature.
ID on Bill of Sale
The detective contacted the pawn shop to place a police hold on the bicycle and to retrieve the bill of sale created for the transaction. The bill of sale listed Marvin’s name, address, identifying information, and his thumbprint, as well as identifying information for the bicycle.
About 10 days after the transaction at the pawn shop, the state charged Marvin with theft, a Class D felony. The state amended the charge by alleging Marvin was a habitual offender.
At trial, Marvin objected to the admission of the pawn card and the bill of sale under the business records exception of the hearsay rules on the ground that no testimony established that the documents were made at or near the time of the event or that they were made by a person with knowledge of the transactions. The trial court overruled the objection and admitted both exhibits.
At the close of the evidence and before the jury was instructed, Marvin proposed a jury instruction for theft, as a Class A misdemeanor, which the trial court overruled because the evidence did not support it. The jury found Marvin guilty as charged on the theft charge, and he subsequently pled guilty to being a habitual offender.
The trial court sentenced Marvin to 910 days for theft, with a 545-day enhancement as a habitual offender. Marvin then filed an appeal with the Indiana Court of Appeals.
Marvin first claimed that the trial court abused its discretion when it admitted the pawn card and bill of sale into evidence under the business record exception of the hearsay rules.
Specifically, he argued that the state failed to establish that an individual with personal knowledge had prepared the documents near the time of the transaction, and as such, the documents did not meet the requirements of the business records exception.
The Appeals Court said it reviews a trial court’s decision to admit or exclude evidence for an abuse of discretion. An abuse of discretion occurs if a trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court.
Moreover, the Appeals Court said it would not reverse the trial court’s admission of evidence absent a showing of prejudice.
Hearsay, said the court, is a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. Hearsay is inadmissible unless admitted according to a recognized exception.
The business records exception to the hearsay rule permits admission of records of regularly conducted business activity provided that certain requirements are met. The rule specifically provides that:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
To admit business records pursuant to this exception, said the Appeals Court, the party offering the exhibit may authenticate it by calling a witness who has a functional understanding of the record keeping process of the business with respect to the specific entry, transaction, or declaration contained in the document.
The witness need not have personally made or filed the record or have firsthand knowledge of the transaction represented by it to sponsor the exhibit. Rather, the person only needs to show that the exhibit was part of certain records kept in the routine course of business and placed in the records by one who was authorized to do so and who had personal knowledge of the transaction represented at the time of entry.
Records kept in the ordinary course of business are presumed to have been placed there by those who have a duty to record and have personal knowledge of the transaction represented by the entry, unless there is evidence to the contrary.
The Appeals Court noted that the state established the foundational requirements for the admission of the pawn card and bill of sale under the business records exception through the testimony of its witness, the manager of the pawn shop.
The manager identified the pawn card and bill of sale as two documents generated by the pawn shop customer service representative in the regular course of business at the time of the sales transaction.
He clarified that before being able to complete these documents, each customer service representative must have one month of training and a period of time shadowing another employee. The manager explained that each employee executes a transaction the same way:
First, the employee determines the ownership of the item offered for sale and retrieves the identifying characteristics, like serial number, make, and model.
Second, the employee enters this information, together with the identifying information from the seller, into the computer at the time of sale to generate the pawn card. The employee can only take the personal identifying information from a state issued identification card and the seller’s thumbprint is recorded on the pawn card. At the end of the transaction and in accordance with the law, the pawn card is mailed within 24 hours to the police department.
Next, the employee creates a bill of sale contemporaneous to the transaction. This bill of sale includes the same identifying information of the seller and the item being sold as on the pawn card. The bill of sale and the pawn card are linked by including the bill of sale’s number at the bottom of the pawn card.
As such, the Appeals Court said that the trial court properly admitted the pawn card and bill of sale into evidence as business records.
Next, Marvin argued that the trial court should not have denied his request to instruct the jury on criminal conversion, a Class A misdemeanor, as a lesser included offense of theft.
In reviewing a claim that the trial court refused to give a tendered instruction, the Appeals Court said it considers “(1) whether the instruction correctly states the law; (2) whether there was evidence presented at trial to support giving the instruction; and (3) whether the substance of the instruction was covered by other instructions that were given.”
The decision to give or deny a tendered jury instruction is left to the sound discretion of the trial court. The Appeals Court said it reviews the trial court’s decision only for abuse of that discretion.
Indiana appellate courts have consistently held that criminal conversion is an inherently lesser included offense of theft because conversion may be established by proof of less than all the material elements of theft.
The Indiana Code states, in relevant part that, “A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.”
The code also provided that “[a] person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor.”
Clearly, said the Appeals Court, the only element distinguishing theft from conversion is whether the defendant acted with intent to deprive a person of the value or use of that person’s property.
Here, Marvin’s proposed instruction on conversion correctly stated the elements of the charge. Furthermore, the evidence offered by the state to prove theft also could have proven criminal conversion.
As elaborated by Marvin at trial, “the charge could easily have been charged as a conversion” and the jurors should be given the conversion instruction because they might conclude that it could fit the case.
Furthermore, no other instruction advised the jury of criminal conversion or gave it the option to convict Marvin of a misdemeanor.