MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                               Dec 31 2015, 10:14 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Zachary J. Stock                                        Gregory F. Zoeller
Zachary J. Stock, Attorney at Law. P.C.                 Attorney General of Indiana
Carmel, Indiana
                                                        Monika Prekopa Talbot
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tamara Fitzgerald,                                      December 31, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1505-CR-366
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        49G06-1408-FC-40962



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015   Page 1 of 13
                               Case Summary and Issues
[1]   Following a jury trial, Tamara Fitzgerald was convicted of insurance fraud as a

      Class C felony and false informing as a Class B misdemeanor. Fitzgerald

      appeals, raising two issues for our review: (1) whether the trial court committed

      fundamental error by admitting certain records into evidence; and (2) whether

      her convictions violate the Double Jeopardy Clause of the Indiana

      Constitution. Concluding the trial court did not commit fundamental error and

      Fitzgerald’s convictions do not constitute double jeopardy, we affirm

      Fitzgerald’s convictions.



                            Facts and Procedural History
[2]   On February 11, 2009, Fitzgerald and her husband bought a 2000 Cadillac

      DeVille bearing the vehicle identification number (“VIN”)

      1G6KD54Y1YU237954. They purchased the vehicle in Virginia from

      Fitzgerald’s sister, Yolanda Royal. Royal did not transfer the vehicle’s

      certificate of title because she was unable to locate it. Instead, the parties

      executed a bill of sale. The vehicle remained registered in Virginia, in Royal’s

      name, but was added to an Erie Insurance (“Erie”) policy issued to Fitzgerald

      in June 2009.


[3]   On June 16, 2011, Fitzgerald contacted the Indianapolis Metropolitan Police

      Department (“IMPD”) to report the vehicle stolen. Fitzgerald told the police

      she left the vehicle parked at 30th Street and German Church Road the day


      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015   Page 2 of 13
      before with the key stuck in the ignition, and when she returned for the vehicle,

      it was gone. Fitzgerald completed a Verification of Stolen Vehicle Report,

      listing Royal as the vehicle’s owner and noting “key stuck in the ignition.”

      State’s Exhibit 28.


[4]   Later that day, Fitzgerald filed a claim with Erie. She gave a recorded

      statement over the telephone and also submitted an Affidavit of Vehicle Theft.

      During the recorded statement, Fitzgerald told a claims adjuster she left the

      vehicle in a parking lot at 30th Street and German Church Road on June 15,

      2011, and her husband discovered the vehicle was missing when he went to

      retrieve it the following day. Fitzgerald stated they promptly reported the theft

      to the police and provided the claims adjuster with the IMPD case number.

      Fitzgerald also stated she had only one set of keys for the vehicle and left the

      vehicle locked in the parking lot:


              Q.      Now how many sets of keys are there for the vehicle?
              R.      There was only one set.
              Q.      And where were those keys kept?
              R.      The keys are—my husband keeps the keys. They hang—
                      he hangs them up. He doesn’t take them with him but he
                      has the keys.
              Q.      And that set of keys is accounted for now?
              R.      Yes.

              ***
              Q.      And the vehicle was left locked?
              R.      Yes, it was locked.
              Q.      And the keys were?
              R.      I brought the key back.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015   Page 3 of 13
              Q.      Okay.
              R.      The one that I used, yeah.


      State’s Ex. 7, at 6-7, 9.


[5]   Fitzgerald advised the claims adjuster she was not the titled owner of the

      vehicle and provided the bill of sale for proof of ownership. When the claim

      was being processed, the claims adjuster contacted Fitzgerald to collect

      additional information about the keys. Fitzgerald told the claims adjuster the

      key was stuck in the ignition during that conversation. Notwithstanding the

      discrepancy in Fitzgerald’s account, Erie settled the claim in July 2011 and sent

      Fitzgerald a check for $5,051.77. The check was enclosed in a letter stating Erie

      was withholding $1,200.00 from the settlement pending receipt of the vehicle’s

      certificate of title. Fitzgerald deposited the check but never provided the

      certificate of title.


[6]   In February 2014, Erie discovered another discrepancy with regard to

      Fitzgerald’s claim. An Erie investigator consulted a national database that

      tracks insurance claims and scrap metal sales and realized “the vehicle appeared

      to have been sold as scrap approximately nine to ten days before the reported

      day of loss.” Transcript at 84-85. A 2000 Cadillac Deville with the same VIN

      as the vehicle Fitzgerald reported stolen was sold to Integrity Metals

      (“Integrity”) as scrap on June 6, 2011, over a week before Fitzgerald claims she

      left the vehicle in a parking lot. The investigator contacted Integrity directly

      and confirmed the vehicle had been sold as scrap on June 6, 2011, by Kenneth

      Long of Big Red’s Discount Towing (“Discount Towing”).
      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015   Page 4 of 13
[7]   Suspecting fraud, Erie referred the case to the Marion County Prosecutor’s

      Office for further investigation. Thereafter, on August 25, 2014, the State

      charged Fitzgerald with Count I, insurance fraud, a Class C felony; Count II,

      theft, a Class D felony; and Count III, false informing, a Class B misdemeanor.

      A jury trial was held on March 4, 2015. Long testified Discount Towing buys

      cars to sell as scrap and is not in the business of towing cars to be repaired.

      Customers call and request pick up, and the Discount Towing office dispatches

      Long to tow the cars to the salvage yard. Customers are paid in cash, and

      Discount Towing does not maintain records of these transactions. Long

      recalled taking cars to Integrity on June 6, 2011, but he did not remember

      which cars or from whom the cars were purchased. Integrity’s office manager,

      Heidi Kerstiens, also testified. Kerstiens testified to Integrity’s business

      practices, and the State introduced records maintained by Integrity through

      Kerstiens’ testimony. The records showed Long sold five vehicles to Integrity

      on June 6, 2011, including a 2000 Cadillac Deville, VIN

      1G6KD54Y1YU237954.


[8]   The jury found Fitzgerald guilty on all counts. The trial court merged Count I

      and Count II and entered judgment of conviction for insurance fraud and false

      informing. This appeal followed.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015   Page 5 of 13
                                 Discussion and Decision
                                   I. Admission of Evidence
                                       A. Standard of Review
[9]    Fitzgerald contends the trial court erred by admitting Integrity’s records into

       evidence. She argues the records constituted inadmissible hearsay because

       there was an insufficient foundation to admit them under the business records

       exception. See Ind. Evidence Rule 803(6). Fitzgerald concedes, however, she

       did not object to the admission of the records at trial. Therefore, unless she can

       show the trial court committed fundamental error by admitting the records, the

       issue is waived. Stephenson v. State, 29 N.E.3d 111, 118 (Ind. 2015).


[10]   “Fundamental error is an extremely narrow exception to the waiver rule where

       the defendant faces the heavy burden of showing that the alleged errors are so

       prejudicial to the defendant’s rights as to make a fair trial impossible.” Ryan v.

       State, 9 N.E.3d 663, 668 (Ind. 2014) (citation and internal quotation marks

       omitted). The error must be “so egregious and abhorrent to fundamental due

       process” that the trial judge should have acted, “irrespective of the parties’

       failure to object or otherwise preserve the error for appeal.” Whiting v. State,

       969 N.E.2d 24, 34 (Ind. 2012).


                                        B. Integrity’s Records
[11]   Hearsay is an out-of-court statement offered into evidence to prove the truth of

       the matter asserted. Evid. R. 801(c). Hearsay is inadmissible unless it falls


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015   Page 6 of 13
       under a recognized exception. Evid. R. 802. One such exception exists for

       records that satisfy the requirements of Evidence Rule 803(6), which provides,


               The following are not excluded by the rule against hearsay,
               regardless of whether the declarant is available as a witness:

               ***
               (6) Records of a Regularly Conducted Activity. A record of an
               act, event, condition, opinion, or diagnosis if:
                      (A) the record was made at or near the time by—or from
                      information transmitted by—someone with knowledge;
                      (B) the record was kept in the course of a regularly
                      conducted activity of a business, organization, occupation,
                      or calling, whether or not for profit;
                      (C) making the record was a regular practice of that
                      activity;
                      (D) all these conditions are shown by the testimony of the
                      custodian or another qualified witness, or by a certification
                      that complies with Rule 902(11) or (12) or with a statute
                      permitting certification; and
                      (E) neither the source of information nor the method or
                      circumstances of preparation indicate a lack of
                      trustworthiness.


       Fitzgerald argues there was an insufficient foundation to admit Integrity’s

       records under Evidence Rule 803(6), the business records exception.


[12]   At trial, Kerstiens thoroughly explained the process of selling a vehicle to

       Integrity. First, the customer must present (1) a government-issued photo ID,

       and (2) either a valid salvage license or the vehicle’s certificate of title. Licensed

       salvage dealers such as Discount Towing do not have to present a certificate of

       title in order to sell a vehicle as scrap. Then, the customer drives the vehicle

       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015   Page 7 of 13
       onto a scale. While on the scale, the vehicle is photographed, and Integrity’s

       computer system records the weight. Once the weight is recorded, an employee

       checks the VIN and records that information in the Integrity computer system.1

       Finally, the vehicle is shredded, and the customer is paid. Every step of the

       process is recorded in Integrity’s computer system, and each customer is

       photographed and assigned a unique customer number.


[13]   Kerstiens testified these records are created in the regular course of Integrity’s

       business, at or near the time of each transaction, and contain information

       entered into Integrity’s computer system by a person with knowledge and a

       duty to report accurately. Through Kerstiens’ testimony, the State admitted

       Exhibits 17 through 25. Exhibit 17 is a report that Kerstiens created on March

       18, 2014, showing all of the transactions between Integrity and Discount

       Towing from January 2001 to March 2014. The report includes information

       such as the date and ticket number for each transaction, the amount paid, and

       details about the vehicles, including their make, model, year, and VIN. Exhibit

       18 is a “Scale Purchase Ticket,” stating Long sold five vehicles to Integrity on

       June 6, 2011, and certifying Long had the right to possess and sell these

       vehicles. Exhibit 19 is a “Payment Receipt,” stating Integrity paid $2,252.50 for

       the five vehicles sold on June 6, 2011. The vehicles are not identified by make,

       model, year, or VIN on the ticket or the receipt. Exhibits 20 through 22 are



       1
        Every vehicle has a unique, seventeen-character VIN that identifies the vehicle by make, model, and year.
       See Tr. at 92; State’s Ex. 17. The VIN is listed on the vehicle’s certificate of title and on the vehicle itself,
       usually in the window or on a door frame. Tr. at 100.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015               Page 8 of 13
       photographs of Long and the vehicles sold on June 6, 2011. Exhibits 23

       through 25 show the information Integrity maintains about Long, including a

       copy of his commercial driver’s license and a copy of his salvage license.


[14]   Fitzgerald did not object to any of these exhibits at trial but argues the trial

       court committed fundamental error by admitting them because Kerstiens’

       testimony was an inadequate foundation for the business records exception.

       Specifically, Fitzgerald contends Kerstiens’ testimony failed to establish the

       records were made by someone with knowledge, see Evid. R. 803(6)(A),

       because Kerstiens only testified to “what is typically done,” and did not identify

       the specific employee who handled the transaction. Appellant’s Brief at 9.


[15]   We first note,

               The reliability of business records stems from the fact that the
               organization depends on them to operate, from the sense that
               they are subject to review, audit, or internal checks, from the
               precision engendered by the repetition, and from the fact that the
               person furnishing the information has a duty to do it correctly.


       Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997). Therefore, the proponent of a

       business record can satisfy the requirements of Evidence Rule 803(6) “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.” Rolland v. State, 851 N.E.2d 1042, 1045 (Ind. Ct.

       App. 2006). “The witness need not have personally made or filed the record or

       have firsthand knowledge of the transaction represented by it in order to


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015   Page 9 of 13
       sponsor the exhibit.” Id. Moreover, a sponsoring witness is not required to

       testify that she knows the person who recorded the information had personal

       knowledge of the transactions. Payne v. State, 658 N.E.2d 635, 645 (Ind. Ct.

       App. 1995), trans. denied. Records kept in the regular course of business are

       presumed to have been created by someone with knowledge, unless there is a

       showing to the contrary. Id.


[16]   Fitzgerald concedes Integrity’s records were kept in the regular course of

       business, and she points to no evidence showing the person who created the

       records lacked knowledge. We therefore disagree Kerstiens’ testimony failed to

       establish the records were made by someone with knowledge. As to Exhibits 18

       through 25, we conclude Kerstiens’ testimony provided an adequate foundation

       for their admission under Evidence Rule 803(6). There was no error in

       admitting these exhibits, let alone fundamental error.


[17]   But as to Exhibit 17, we conclude it does not satisfy the requirements of

       Evidence Rule 803(6). Exhibit 17 is a twenty-three-page report that Kerstiens

       created on March 18, 2014, showing all of the transactions between Integrity

       and Discount Towing from January 2001 to March 2014. It was not created at

       or near the time of each transaction. See Evid. R. 803(6)(A). However, we do

       not believe the trial court committed fundamental error by admitting the report.

       Pursuant to Evidence Rule 1006, a proponent may use a summary to prove the

       content of voluminous writings or recordings, as long as the underlying




       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015   Page 10 of 13
       documents are made available to the opposing party. 2 Given the summary of

       the records was itself twenty-three pages long, the underlying records are likely

       so voluminous “that they cannot be conveniently examined in court.” Evid. R.

       1006. Accordingly, we find no fundamental error in the admission of Exhibit

       17.


                                         II. Double Jeopardy
                                         A. Standard of Review
[18]   Fitzgerald also contends her convictions for false informing and insurance fraud

       violate the Double Jeopardy Clause of the Indiana Constitution, which

       provides, “No person shall be put in jeopardy twice for the same offense.” Ind.

       Const. art. 1, § 14. We review whether multiple convictions violate the Double

       Jeopardy Clause de novo. Jones v. State, 976 N.E.2d 1271, 1275 (Ind. Ct. App.

       2012), trans. denied. Two convictions constitute the “same offense” for double

       jeopardy purposes “if, with respect to either the statutory elements of the

       challenged crimes or the actual evidence used to convict, the essential elements

       of one challenged offense also establish the essential elements of another

       challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)

       (emphasis in original).




       2
         The State did not admit the records summarized in Exhibit 17, but Evidence Rule 1006 does not require
       this. The underlying records must only be made available to opposing party, Evid. Rule 1006, and nothing in
       the record suggests Integrity’s records were not made available to Fitzgerald.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015       Page 11 of 13
                         B. False Informing and Insurance Fraud
[19]   Fitzgerald argues her convictions violate the actual evidence test because both

       offenses were proven by the fact that the Cadillac was sold as scrap on June 6,

       2011. In order to find a double jeopardy violation under the actual evidence

       test, we must conclude there is a reasonable possibility that the evidentiary facts

       used by the factfinder to establish the essential elements of one offense may also

       have been used to establish all the essential elements of a second challenged

       offense. Hines v. State, 30 N.E.3d 1216, 1222 (Ind. 2015).


[20]   Fitzgerald was convicted of false informing and insurance fraud.                     A person

       commits false informing if she “gives a false report of the commission of a

       crime or gives false information in the official investigation of the commission

       of a crime, knowing the report or information to be false . . . .” Ind. Code § 35-

       44-2-2(d)(1) (2007). A person commits insurance fraud when she “knowingly

       and with intent to defraud . . . makes, utters, presents, or causes to be presented

       to an insurer or an insurance claimant, a claim statement that contains false,

       incomplete, or misleading information concerning the claim . . . .” Ind. Code §

       35-43-5-4.5(a)(1).


[21]   Although we agree both offenses required the State to prove Fitzgerald lied

       about the Cadillac being stolen, we cannot conclude Fitzgerald’s convictions

       violate the prohibition against double jeopardy. The fact that the Cadillac had

       been sold as scrap over a week before Fitzgerald claims she left the vehicle in a

       parking lot shows her account was fabricated. But the false informing

       conviction required the additional fact of Fitzgerald reporting the vehicle stolen
       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015   Page 12 of 13
       to the police. Likewise, it was Fitzgerald’s act of filing a claim with Erie that

       established the essential elements of insurance fraud. Fitzgerald was not

       subjected to double jeopardy in this case. See Hines, 30 N.E.3d at 1221 (“The

       fact that the same evidence may have been used to establish a single element of

       each of two offenses does not constitute a double jeopardy violation . . . .”).



                                               Conclusion
[22]   The trial court did not commit fundamental error by admitting Integrity’s

       records into evidence, and Fitzgerald’s convictions do not violate the

       prohibition against double jeopardy. We therefore affirm Fitzgerald’s

       convictions.


[23]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-366 | December 31, 2015   Page 13 of 13
