Jonathan Grott, Sr. v. State of Indiana , 30 N.E.3d 777 ( 2015 )

May 07 2015, 10:17 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan M. Truitt Gregory F. Zoeller
Bertig & Associates, LLC Attorney General of Indiana
Valparaiso, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jonathan Grott, Sr., May 7, 2015
Appellant-Defendant, Court of Appeals Case No.
64A04-1408-CR-395
v. Appeal from the Porter Superior
Court.
The Honorable Mary R. Harper,
State of Indiana, Judge.
Appellee-Plaintiff Cause No. 64D05-1305-FD-4102
Baker, Judge.
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[1] Jonathan Grott appeals his conviction for Auto Theft,1 a class D felony,
claiming that the evidence is insufficient to sustain his conviction. Finding that
the evidence is sufficient, we affirm.
Facts
[2] On February 11, 2013, Grott rented a vehicle from Enterprise Rent-A-Car
(Enterprise) in Valparaiso. Grott signed a written contract, which provided that
the vehicle was to be returned on February 13, 2013. At some point, Grott
upgraded his rental vehicle to a Cadillac. Grott continued to rent the Cadillac
until April 5, 2013. Although no new contract was written, Enterprise kept
Grott’s credit card on file and continued the rental by authorizing charges on
the card every few days for various amounts. At the end of this fifty-three-day
period, Grott had accrued charges of $4,997.09.
[3] On April 5, 2013, Grott signed a new written contract with Enterprise, which
provided that Grott was to return the Cadillac on April 12, 2013. Grott paid
Enterprise $719.98. On April 12, 2013, Annie Martin, an employee of
Enterprise, emailed Grott, asking him if he planned on keeping the car for
another week. If so, Martin indicated that she would have to run a charge on
Grott’s credit card. Grott responded to the email, questioning why he had been
charged the original $4,997.09. In the email, Grott exaggerated the amount,
claiming that it was almost $10,000. Martin informed Grott that he had not
1
Ind. Code § 35-43-4-2.5.
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been charged $10,000, but provided no further explanation for the charges.
Grott indicated that he would contact Enterprise’s corporate office.
[4] On April 15, 2013, Martin again emailed Grott, informing him that she would
have to charge his card to continue the rental. Enterprise tried to charge Grott’s
card later that day, but the charge was declined. The next day, branch manager
Robert Smolen emailed Grott, asking that he either return the vehicle or pay
Enterprise in full. Smolen indicated that Enterprise may report the vehicle
stolen.
[5] On April 17, 2013, Grott responded by saying that he would be calling the
corporate office to attempt to clear up the payment issue and, if he could not, he
would return the car. Smolen thanked him for his response, but did not hear
back from Grott that day. On April 18, 2013, area manager Lindsey Sandrick
called Grott. Grott agreed to make a $600 payment and to come in the next
day and pay another $1,200 to continue the rental. Later that day, Martin
successfully deducted $600 from Grott’s credit card.
[6] On April 19, 2013, Grott did not stop by Enterprise or contact anyone at the
office. Sandrick tried to contact Grott over the next couple of days but did not
hear back from him. On April 24, 2013, Sandrick emailed Grott asking him to
tell her where the Cadillac was so that Enterprise could come and pick it up.
Grott emailed back, claiming that he thought they had agreed that he would
come to the office in a couple of days to resolve the situation. Sandrick
responded that this was not the case and that Enterprise needed the Cadillac
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immediately. She also informed Grott that he was no longer authorized to
drive the Cadillac except to return it to Enterprise. She noted that Enterprise
had contacted a repossession company. On April 25, 2013, Grott emailed
Sandrick, saying that he would return the Cadillac the next day. Sandrick sent
an email reiterating that Grott was only authorized to drive the vehicle to
Enterprise.
[7] By April 29, 2013, Grott had still not returned the Cadillac. On that day,
Smolen emailed Grott, informing him that he was in violation of his rental
agreement for failing to return the Cadillac by the return date. Smolen’s email
identified April 24, 2013, as the return date. Grott responded, arguing that he
had been charged nearly $6,000 to date and that the monthly rate for rental of
the Cadillac was only $1,451. Grott stated that he believed he had overpaid
and that he believed Enterprise should extend his rental accordingly.
[8] On May 1, 2013, Smolen contacted the Valparaiso Police Department. Officer
Christopher Allison met Smolen at the Enterprise office and discussed the
matter. Officer Allison called Grott and left a voicemail. Later that afternoon,
Officer Allison learned that Enterprise had used OnStar to determine that the
Cadillac was parked at Grott’s residence. Officer Allison went to the residence
and confirmed that the Cadillac was parked in the driveway. He contacted
Enterprise, who sent a tow truck to pick up the vehicle.
[9] On May 6, 2013, the State charged Grott with class D felony auto theft. On
April 17, 2014, a jury found Grott guilty as charged. On July 29, 2014, the trial
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court sentenced Grott to two years imprisonment with all but sixty days
suspended to probation and ordered him to pay $2,240.40 in restitution to
Enterprise. Grott now appeals.
Discussion and Decision
[10] Grott argues that the evidence presented at trial is insufficient to sustain his
conviction for class D felony auto theft. In reviewing a challenge to the
sufficiency of the evidence, this Court neither reweighs the evidence nor
assesses the credibility of the witnesses. Tongate v. State, 954 N.E.2d 494, 496
(Ind. Ct. App. 2011). We focus on the evidence most favorable to the verdict
and the reasonable inferences drawn therefrom. Id. We will affirm unless no
rational fact-finder could have found the defendant guilty beyond a reasonable
doubt. Id. at 496-97.
[11] To convict Grott of class D felony auto theft, the State was required to prove
beyond a reasonable doubt that Grott knowingly or intentionally exerted
unauthorized control over Enterprise’s vehicle with the intent to deprive
Enterprise of the vehicle’s value or use. Ind. Code § 35-43-4-2.5. For purposes
of this provision, “‘exert control over property’ means to obtain, take, carry,
drive, lead away, conceal, abandon, sell, convey, encumber, or possess
property, or to secure, transfer, or extend a right to property.” I.C. § 35-43-4-1.
Here, the State sought to prove that Grott exerted unauthorized control over
Enterprise’s Cadillac by possessing it past the agreed-upon return date.
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[12] On appeal, Grott frames his argument in general terms. He argues that this is
“a civil case—pure and simple” and characterizes his dispute with Enterprise as
“simply a misunderstanding.” Appellant’s Br. p. 4. He contends that “it was
an abuse of discretion to even charge this as a criminal cause” and that
“prosecutor offices [should not] be free collection attorneys to large
corporations.” Id. at 4-5. On the other hand, Grott concedes that failure to
return a rental car by the agreed-upon return date can, in appropriate
circumstances, rise to the level of auto theft. Id. at 6.
[13] Initially, we note the limited nature of our inquiry. We do not concern
ourselves with the State’s decision to prosecute Grott in this instance. Although
Grott passingly alleges that the State abused its discretion in deciding to
prosecute him, he provides no further explanation. “Whether to prosecute and
what charges to bring . . . are decisions that generally rest in the prosecutor’s
discretion.” Kibbey v. State, 733 N.E.2d 991, 996 (Ind. Ct. App. 2000)
(quotations omitted). Furthermore, we will not pass judgment on the propriety
of Enterprise’s decision to involve law enforcement in this matter. While this
dispute could have conceivably ended with Enterprise’s repossession of the
vehicle, we do not question its right to seek the assistance of law enforcement.
Instead, we deal only with the question presented on appeal: whether the
evidence is sufficient to support Grott’s conviction for theft.
[14] Although Grott’s argument is posed largely in general terms, two specific points
can be gleaned from it. First, Grott frames this case as a good faith contract
dispute. See Appellant’s Br. p. 5, 9. Framed as such, Grott argues that he could
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not have knowingly or intentionally exerted unauthorized control over the
Cadillac because he honestly believed that such control was authorized. Nor
could he have acted with the intent to deprive Enterprise of the vehicle’s value or
use—rather, his intent was simply to assure that Enterprise held up its end of
the bargain. In this sense, the jury’s determination of whether the State had
proved all the elements of the crime required it to determine what Grott could
have reasonably believed the terms of the contract to be.
[15] Second, Grott argues that the State failed to present sufficient evidence that he
exerted unauthorized control over the Cadillac by failing to show that Grott
“possessed” the vehicle. See id. at 8. Grott maintains that he stopped driving
the vehicle once Enterprise told him to do so. Furthermore, because the vehicle
was parked openly in Grott’s driveway throughout this period, Enterprise could
have simply come and picked it up. Thus, Grott argues that, while the Cadillac
may have been parked in his driveway, this was not enough to show that he
was exercising control over it and therefore “possessing” it in the usual sense.
[16] We note that neither party has been able to find a previous Indiana case of
sufficient similarity to guide our decision today. Mills v. State is apparently the
only instance of an Indiana appellate court finding that evidence was sufficient
to convict a defendant of theft of a rental car. 512 N.E.2d 846 (Ind. 1987). In
that case, Mills rented a car after falsely identifying himself and using someone
else’s credit card when he was not authorized to do so. Id. at 848. The Court
determined that this, combined with the fact that Mills never paid the rental bill
and the car was never returned, constituted sufficient evidence of Mills’s intent
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to commit theft. Id. As Grott’s actions are easily distinguishable, Mills is not
particularly instructive. Accordingly, we look to the decisions of other
jurisdictions in similar cases for guidance.
I. Good Faith Contract Dispute
[17] We agree with Grott that a party to a good faith contract dispute should not be
convicted of theft simply because he eventually finds himself on the losing end
of the dispute. Defendants who are engaged in such good faith disputes will
always be able to show that they lack the requisite intent necessary to commit
theft. However, we disagree with Grott that this particular dispute was
conducted in good faith.
[18] The exact terms of Grott’s contract with Enterprise are difficult to discern,
given the manner in which the parties dealt with each other. A representative
of Enterprise testified at trial that, because Enterprise provides short-term
rentals rather than long-term leases, their written contracts are designed to
cover only a thirty-day period. Tr. p. 83-84. If a customer wishes to extend a
contract with Enterprise after the thirty-day period, it is Enterprise’s policy that
the customer come in and rewrite a new contract. Id. This also allows
Enterprise to check the vehicle to ensure that it is in proper working condition.
However, this was not done here, as Grott was able to extend his initial written
contract over a period of fifty-three days.
[19] If an initial contract is for less than thirty days, Enterprise allows customers to
extend their rental by calling a branch and authorizing a charge on their credit
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card to cover the extended period. Tr. p. 84. This is primarily how Grott
handled his transactions with Enterprise. The record indicates that Grott
signed an initial contract on February 11, 2013, with a return date of February
13, 2013. State’s Ex. 2. He was able to extend this contract for fifty-three days
by authorizing charges on his credit card. Grott paid a total of $4,997.09 to
Enterprise throughout this period. On April 5, 2013, Grott signed a new
contract with a return date of April 12, 2013. State’s Ex. 3. Grott paid $719.98
to cover this week.
[20] Problems began to develop after this second written contract was signed. On
the return date of April 12, 2013, Martin emailed Grott to ask if he planned on
keeping the car for another week. Defendant’s Ex. 1. It was at this point that
Grott began to dispute the $4,997.09 amount he had been charged for the
original fifty-three-day period. Id. Grott made no payments to Enterprise
between April 12, 2013, and April 17, 2013, though he still had the Cadillac in
his possession. On April 18, 2013, Enterprise was able to charge $600 to
Grott’s card, but there is nothing in the record indicating that the parties agreed
as to what period of time this amount covered or as to when the new return
date was. See Defendant’s Ex. 4; Tr. p. 189.
[21] Appellate courts of other states have determined that “there must be sufficient
evidence of a specified deadline for return to support conviction of theft by a
bailee of a rental car.” State v. Bugely, 408 N.W.2d 394, 396 (Iowa Ct. App.
1987) (discussing similar holdings in other states). We agree with this
proposition. In this case, we acknowledge the somewhat open-ended nature of
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Grott’s contract and the fact that there is nothing in the record indicating that a
return date was agreed to after Grott’s final payment. However, we still find
that the jury had sufficient evidence that the parties had agreed to a deadline for
the return of the Cadillac.
[22] On April 25, 2013, a week after Grott’s $600 payment, Sandrick emailed Grott:
“We need the vehicle returned immediately. We cannot allow you to keep the
vehicle any longer. Please respond with where the vehicle is and we will pick it
up.” State’s Ex. 4. Grott responded: “I will return the vehicle after work
tomorrow . . . .” Id. Thus, the jury had evidence before it that Grott agreed to a
return date of April 26, 2013. Grott did not return the Cadillac on that date,
and it was not until Enterprise repossessed the vehicle from his driveway on
May 1, 2013, that it was returned.
[23] Moreover, Grott’s argument on this issue is premised on his statements in his
April emails challenging Enterprise’s charge for the fifty-three-day period. But
Enterprise’s internal emails demonstrated that Grott “br[ought] up [the] $4k
charge[,] which was never an issue before,” after the fifty-three-day contract had
ended, and that Enterprise had “sent notification [to Grott] and made it clear
that the car need[ed] to be returned.” State’s Ex. 6. Thus, it was the jury’s
prerogative to give little or no weight to Grott’s assertion that his possession of
the vehicle was merely an honest contractual misunderstanding as to what his
payment of $4997.09 covered.
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[24] Therefore, although Grott was disputing the charges for the initial fifty-three-
day period, the jury had evidence before it from which it could infer that Grott
knew that charges from this fifty-three-day period did not entitle him to any
extra days of rental after April 5, 2013. Grott signed a new written contract on
April 5, 2013, and completed payment on the amount charged for the fifty-
three-day period, thereby completing one contract and entering into another.
Furthermore, Grott agreed to return the Cadillac on April 26, 2013, indicating
that he knew his current rental agreement had expired. From this evidence, the
jury could determine that Grott was not confused as to the terms of his contract
with Enterprise, and that he intentionally exerted unauthorized control over the
Cadillac with the intent to deprive Enterprise of its value or use, perhaps in an
attempt to negotiate a reduction to his previous charges.
II. Exerting Unauthorized Control
[25] Grott next argues that the State failed to present sufficient evidence that he
exerted unauthorized control over the Cadillac. To reiterate, “‘exert control
over property’ means to obtain, take, carry, drive, lead away, conceal, abandon,
sell, convey, encumber, or possess property, or to secure, transfer, or extend a
right to property.” I.C. § 35-43-4-1. Grott maintains that the State failed to
provide sufficient evidence that he “possessed” the Cadillac after he was told by
Enterprise to stop driving it because it was merely left sitting in his open
driveway after that date.
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[26] “A person who has direct and physical control over” an object “has actual
possession” of it. Tate v. State, 835 N.E.2d 499, 511 (Ind. Ct. App.
2005). There is no serious dispute that Grott had direct and physical control
over the vehicle at the relevant times; indeed, his whole argument on this issue
is simply that Enterprise could have taken it out of his possession whenever it
wanted to do so. But no one else was physically in possession of the vehicle
while Grott was. That Enterprise had the authority to repossess the vehicle
does not mean that Grott was not in possession of it. Thus, Grott had actual
possession of the vehicle, and his argument to the contrary is without merit.
[27] The judgment of the trial court is affirmed.
Najam, J., and Friedlander, J., concur.
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