                                                                   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.




Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015                      Page 1 of 12
[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.


      Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015    Page 2 of 12
      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


      Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015    Page 3 of 12
      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


      Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015    Page 4 of 12
       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.




       Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015      Page 5 of 12
[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

       Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015      Page 6 of 12
       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

       Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015      Page 7 of 12
       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

       Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015      Page 8 of 12
       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

       Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015     Page 9 of 12
       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.




       Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015     Page 10 of 12
[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.




       Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015     Page 11 of 12
[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.




       Court of Appeals of Indiana | Opinion 64A04-1408-CR-395 | May 7, 2015   Page 12 of 12
