Cobb v. State
| Decision Date | 29 January 1992 |
| Docket Number | No. 45A03-9109-CR-271,45A03-9109-CR-271 |
| Citation | 585 N.E.2d 40 |
| Parties | Frank Augustus COBB, Jr., Appellant-Defendant v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Nathaniel Ruff, Appellate Public Defender, Crown Point, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
This is an appeal from a jury verdict and judgment in a criminal case in which the defendant was found guilty of conspiracy to commit theft, conspiracy to commit fraud on a financial institution, and fraud on a financial institution. We affirm.
On January 16, 1991, an information and a probable cause affidavit were filed against defendant Frank A. Cobb (Cobb), Jr. The information contained four counts:
1. Count I charged Cobb with conspiracy to commit theft, a class D felony;
2. Count II charged Cobb with conspiracy to commit fraud on a financial institution, a class C felony;
3. Count III charged Cobb with theft, a class D felony; and
4. Count IV charged Cobb with fraud on a financial institution, a class C felony.
The State alleged that Cobb and an accomplice, Rosita Collazo (Collazo), stole checks from the Lake County Clerk's Office, forged signatures on those checks, and deposited them into a business account established by Cobb and Collazo.
Both Cobb and the State set forth basically the same set of facts:
Collazo was employed as a deputy clerk for Circuit Court Clerk Robert Antich. During her employment, Cobb and Collazo lived together. Cobb suggested that Collazo take some blank checks from the Clerk's Office so that the two of them could start a business. In June of 1990, Collazo took six checks from the Clerk's Office and gave them to Cobb.
Cobb and Collazo established a business known as R & J Data Processing (R & J) in the early spring of 1990. Cobb told Collazo how to set up a bank account in the name of R & J at the Mercantile National Bank (Bank) in Hammond, Indiana. At Cobb's suggestion, Collazo used fictitious names for the two of them in setting up the account.
Cobb typed in R & J as the payee on the checks Collazo obtained from the Clerk's Office. He signed the names of the Clerk and another employee of the Clerk's Office to the checks, endorsed the checks, and deposited them in the R & J account. Collazo and Cobb made withdrawals by using R & J checks signed in their fictitious names. After four checks from the Clerk's Office were forged and deposited, Collazo and Cobb were arrested.
Pursuant to a plea agreement with the State, Collazo pled guilty to theft. Her sentencing was continued. The plea agreement provided that the State would recommend to the court that Collazo receive probation if she fully cooperated with the State.
The case proceeded to trial on May 13, 1991, in the Lake County Superior Court. During trial, Collazo identified various checks and deposit slips related to the crimes charged. When the State offered the documents into evidence, Cobb objected, noting that the documents constituted hearsay which rendered the documents inadmissible without proper authentication. The trial court agreed and sustained Cobb's objection, noting that the State should enter the records into evidence through the proper Bank representative.
On the following day of trial, the State called Arthur King (King), a vice president and internal auditor of the Bank, through which Group Exhibit JJ, photocopies of checks and deposit tickets relating to the alleged crimes and which had been previously marked as exhibits at trial, were offered for admission. Cobb objected to admission of the records on the basis that an improper foundation had been laid. Initially, the court sustained his objection, noting that King had failed to testify that he was the keeper of the records. After the State elicited testimony from King that he was the record-keeper, Cobb took King on voir dire, and King stated that he did not actually work in the record-keeping department, but that he was the record-keeper for purposes of trial and as department head of investigations within the auditing department. Cobb once again objected to lack of foundation for admission of the documents. However, the trial court overruled Cobb's objection and admitted the documents. On May 14, 1991, a jury returned a verdict against Cobb, finding him guilty on counts I, II, and IV, and not guilty as to count III.
Cobb now appeals alleging that the documents showing deposits into the R & J account and withdrawals from the account were admitted in violation of the hearsay rule because the State failed to lay a proper foundation for the records under the business record exception.
The issue on appeal is whether the trial court properly allowed admission of the copies of checks and deposit slips into evidence via the business record exception to the hearsay rule through King, a Bank officer and auditor, who at trial stated he was familiar with the Bank's record keeping procedures in general and the copies at issue in particular, even though King did not actually prepare the records or their contents or work in or supervise the record keeping department of the Bank. 1
Cobb asserts that King was not the proper record-keeper to authenticate the business records at issue in this case. He claims the trial court erred by allowing the documents into evidence under the business record exception of the hearsay rule. We disagree.
Generally, the sufficiency of an evidentiary foundation is a matter left to the trial court's discretion. We will reverse only upon a showing of an abuse of discretion by the court. Sutton v. State (1981), Ind.App., 422 N.E.2d 430, 432. We find that the trial court committed no error in finding that a sufficient foundation had been laid for the admission of the copies of checks and deposit slips into evidence.
As both the State and Cobb point out, we have recently set forth the necessary foundational elements of the business records exception to the hearsay rule as follows:
The business records exception to the hearsay rule permits the admission of documentary evidence if it is identified by its entrant or one under whose supervision it is kept and shown to be an original or first permanent entry, made in the routine course of business, at or near the time of the recorded transaction, by one having a duty to so record and personal knowledge of the transaction represented by the entry.
Getha v. State (1988), Ind.App., 524 N.E.2d 325, 327.
Cobb's primary contention is that King was not the proper party to authenticate the records because he was not the entrant or supervisor of the entrant, and was not involved in the Bank's general keeping of the records. Cobb argues that King's familiarity with the Bank's record-keeping practices as an officer and auditor in the Bank is not enough to qualify him as a proper sponsor of the records. We disagree.
While in Getha the foundational requirement that the record be identified by "its entrant or one under whose supervision it is kept," reflects the common practice of the records being identified at trial by their entrant or a supervisor of the entrant, we have previously held that the requirement should not be misinterpreted to mean that only an entrant or his supervisor can identify the records at trial. Specifically, we noted:
While the most commonly encountered witness today may be a person in authority of the record-keeping department of the business, he or she is not the only witness who can provide the necessary foundation for admission of a business record. This foundation can be established by anyone who possesses, with respect to the particular document in question the knowledge of the ... [required foundational elements]. This could be the entrant, the entrant's supervisor, co-workers, a records custodian or any other such person. What we demand is not a witness with a formalistic title but one with a functional understanding of the record-keeping process of the business with respect to the specific entry, transaction or declaration contained in the document.
Baker v. Wagers (1984), Ind.App., 472 N.E.2d 218, 221, trans. denied; See also, Cardin v. State (1989), Ind.App., 540 N.E.2d 51, 55, trans. denied; Hatton v. State (1986), Ind.App., 498 N.E.2d 398, 401; Jackson v. Russell (1986), Ind.App., 498 N.E.2d 22, 37, trans. denied; Wilson v. Jenga Corp. (1986), Ind.App., 490 N.E.2d 375, 377.
The key requirement is that the witness through which a business record is to be admitted must have personal knowledge of the various elements of the foundation. Id. A sponsor of the exhibit need not have made the entry, filed it, or have first hand knowledge of the transaction represented at the time of the entry. Instead, he or she need only show that it is part of the records kept in the routine course of business and placed in the record by one authorized to do so, who had personal knowledge of the transaction represented at the time of entry. Getha, 524 N.E.2d at 327. Therefore, the foundational elements that a witness through which a business record is to be admitted must have personal knowledge of are as follows:
1) That the record is the original or first permanent entry;
2) That it was made in the ordinary course of business;
3) That it was made at or near...
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