Getha v. State

• Decision Date: 13 June 1988
• Docket Number: No. 45A04-8707-CR-224,45A04-8707-CR-224
• Citation: 524 N.E.2d 325
• Parties: Michael GETHA, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 325

524 N.E.2d 325

Michael GETHA, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 45A04-8707-CR-224.

Court of Appeals of Indiana Third District.

June 13, 1988.

Daniel L. Bella, Appellate Public Defender, Crown Point, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Presiding Judge.

Appellant, Michael Getha, appeals his conviction for the crime of Fraud on a Financial Institution, a Class C felony. Getha was sentenced to prison for a term of eight years with the excess over six years suspended. We affirm.

The facts reveal that Getha opened a checking account with the First National Bank of Valparaiso in February 1986. He deposited checks in the amounts of $5,000.00, $3,500.00 and $6,900.00 into this account. The checks, however, were dishonored and on April 18 First National gave Getha notice his account was closed. The notice was repeated in early May.

Getha proceeded to open two new checking accounts with the Bank of Indiana at Merrillville, each with deposits of $300, in early May. On May 12 Getha deposited five checks drawn from the closed account at First National totalling over $28,000.00 into these accounts. He also deposited three other checks totalling $21,000.00 into the accounts. On May 13 Bank of Indiana paid out two checks drawn from the accounts amounting to $7,000.00. All eight of the checks Getha deposited were dishonored resulting in an overdraft of $6,751.00 in Getha's personal account.

Getha then gave Bank of Indiana a check for the total amount he owed drawn on a First Bank of Whiting account. This check also was dishonored.

On May 20 police confronted Getha. He admitted his knowledge that the First National account was closed at the time he deposited five checks drawn on the First National account with Bank of Indiana. He also confessed knowing that the initial checks he deposited in the First National account had been dishonored. Finally Getha admitted writing the checks from the First National account and one other check for deposit into the Bank of Indiana account. This conviction, pursuant to a jury trial, followed.

Appellant raises three issues for our consideration on appeal. First, were various exhibits erroneously admitted into evidence because improperly authenticated under the business records exception to the hearsay rule? Second, was the authentication of two exhibits purporting to show that appellant executed the checks drawn on the Bank of Indiana account inadequate? Third, was the evidence sufficient to sustain the jury's verdict?

Appellant first argues that certain evidence was admitted against him improperly under the business records exception to the hearsay rule. The evidence in question consists of eight checks in amounts totalling $49,447.61 which Getha deposited into his Bank of Indiana checking account on May 12. The checks were marked variously with "NSF," "Return Unpaid; Uncoll. Fds.," or "Account Closed." Appellant infers that these entries were made on the checks by employees of the banks upon which the checks were drawn, namely the Harris Bank, the Shawmut Bank, and First National Bank of Valparaiso. Getha contends that the witnesses from the Bank of Indiana through whom the exhibits were introduced had no knowledge of the status of the accounts at other banks, could not testify as to how the markings were placed on the checks, and that therefore the state was not able to lay a proper foundation for the business records exception to the hearsay rule.

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. The sponsor of the exhibit need not have made the entry, filed it or have had first hand knowledge of the transaction represented at the time of the entry. He 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. Campbell v. State (1986), Ind., 500 N.E.2d 174, 181; Baker v. Wagers (1984), Ind.App., 472 N.E.2d 218, 221.

Further, IC 26-1-3-510 applies. ¹

26-1-3-510 Evidence of dishonor and notice of dishonor

Sec. 510. The following are admissible as evidence and create a presumption of dishonor and of any notice of dishonor therein shown:

(a) A document regular in form as provided in IC 26-1-3-509 which purports to be a protest.

(b) The purported stamp or writing of the drawee, payor bank, or presenting bank on the instrument or accompanying it stating that acceptance or payment has been refused for reasons consistent with dishonor.

(c) Any book or record of the drawee, payor bank, or any collecting bank kept in the usual course of business which shows dishonor, even though there is no evidence of who made the entry.

Subsection (c) is pertinent to the problem at hand. IC 26-1-3-510(c) provides for the admissibility of records kept by any collecting bank (in this case the Bank of Indiana) in the usual course of business which show dishonor despite the fact that there exists no evidence as to who made the entry. As noted in the Uniform Commercial Code Comment on this subsection, the provision rests upon the inherent improbability that bank records will show any dishonor which has not in fact occurred and the improbability that the holder will attempt to proceed on the basis of dishonor if he could in fact have obtained payment.

This subsection and the commentary accompanying it recognize the relative uniformity of banking practices such that indicia of trustworthiness sufficient to admit bank records concerning dishonor exist even where it is unknown who made the entry concerning dishonor. ² We hold that where, as here, a collecting bank can properly lay a foundation for the business records exception to the hearsay rule except for those portions of the record indicating dishonor. IC 26-1-3-510(c) provides that the...