Moore v. State, 59435
| Decision Date | 16 July 1980 |
| Docket Number | No. 59435,59435 |
| Citation | 268 S.E.2d 706,154 Ga.App. 535 |
| Parties | MOORE v. The STATE. |
| Court | Georgia Court of Appeals |
Bobby Lee Cook, Jr., Summerville, for appellant.
William M. Campbell, Dist. Atty., James A. Meaney, III, Asst. Dist. Atty., for appellee.
Thelma Moore was convicted of "food stamp fraud." She appeals, and we reverse.
The evidence shows that beginning in July, 1977, Mrs. Moore, in the name of her husband, applied for and received food stamps until the Chattooga County Department of Family & Children Services' officials made the determination that her husband, Gordon Moore, had been receiving Veterans Administration benefits since July, 1977. At trial, Mrs. Moore denied the receipt of any V.A. benefits before May, 1978. It was alleged in the indictment against her that she committed food stamp fraud on or about June 30, 1978. The last monthly application for food stamps filed by Mrs. Moore was filed April 20, 1978; in that application she stated that her husband had applied for but had not received any V.A. benefits as of that date. As the result of having made that statement, Mrs. Moore was required to, and did, sign an "authorization for release of information" directed to the Veterans Administration. The conviction of Mrs. Moore for fraud arises from her alleged failure to disclose the benefits received on behalf of her husband from the V.A., and for her having made applications for food stamps which contained statements that the household income did not include any benefits paid by the V.A. The only showing at the trial evidencing any fraud on behalf of Mrs. Moore in obtaining $689 in food stamps from July, 1977 to May, 1978 came from two letters sent by V.A. officials to the Department of Family & Children Services which were admitted in evidence over hearsay objections. These two letters were offered by the Department of Family & Children Services as records kept in the regular course of business; they advised that "Records of the V.A. disclose that" Gordon Moore had been receiving V.A. benefits since July, 1977.
We reject the state's argument that the letters were properly admitted because they were shown by proper foundation testimony to be business records of the Department of Family & Children Services, pursuant to Code § 38-711. Assuming that the letters were proper business records of the Department of Family & Children Services, the authenticity of the contents of the letters was in no way established. It is irrelevant in this case that based on the information in the letters the Department of Family & Children Services recomputed the appellant's eligibility for food stamps, and determined that she had committed fraud. The object of investigation in the case is whether, in fact, she did commit fraud, and not what action the Department of Family & Children Services took as the result of receiving the letters. The letters might have been admissible to explain the conduct of the Department of Family & Children Services in investigating the case further or in determining her ineligibility for food stamps, if such action by the Department of Family & Children Services had produced any original, direct evidence of the fraud with which Mrs. Moore is accused (see Code § 38-302; and see Cawthon Motor Co. v. Scheufler, 153 Ga.App. 282, 265 S.E.2d 96 (1980). The letters were not admissible to prove the payment of V.A. benefits to Gordon Moore (see Code § 38-711), because they were hearsay, deriving their value solely from the veracity and competency of persons and investigatory results which were no part of this trial (Code § 38-301). In a parallel situation, the Supreme Court in Martin v. Baldwin, 215 Ga. 293(2)(d), 110 S.E.2d 344, held that photostatic copies of an Army discharge and Army clinical records, although produced from a V.A. file, were not admissible under Code § 38-711, as records made in the regular course of V.A. business, even though they were obviously records of the War Department or the Defense Department "but (were) not offered as such with necessary proof that they (were) records of that department made in the regular course of its business." Unless the necessary proof is given that the letter, transcript, or memorandum was made in the regular course of business at the time of the act or occurrence sought to be proved (in this case, that Mrs. Moore's husband was issued V.A. benefits), it is not admissible under Code § 38-711 (Martin, supra, pp. 294(4), 302.)
Excluding the hearsay information contained in the admitted letters, there is no competent evidence that Mrs. Moore's household received V.A. benefits at the time she made application for food stamps, so as to sustain a criminal case against her for fraud in obtaining public assistance by denying the receipt of V.A. income. She was entitled to a directed verdict of acquittal, and the trial court erred in refusing to grant it.
Judgment reversed.
ON MOTION FOR REHEARING.
On motion for rehearing, the state for the first time argues that even without the evidence which we have ruled inadmissible in this case, the conviction of Mrs. Moore is supported by the evidence. It is argued that Mrs. Moore admitted under cross examination that during the period in question the household income included $38.05 in V.A. benefits which she failed to report, and that she admitted she had wilfully and falsely understated the household income in several applications for food stamps. However, the fact is that on direct examination Mrs. Moore testified that her husband had received $38.05 a month from the V.A. from July, 1977 until April, 1978, but that she had made no untrue statements to the Department of Family & Children Services. The food stamp application filed by Mrs. Moore, which presumably represents that no V.A. benefits were received, was not entered in evidence and in fact Mrs. Moore denied that she herself made that representation. There appeared to be some distinction or confusion in Mrs. Moore's mind between V.A. benefits and the sum received by her husband, inasmuch as she insisted that that sum was not the full benefit her husband had applied for. In fact, the testimony as to the receipt of $38.05 per month is in conflict with the position of the appellee, which is that according to the letters from V.A. officials Mr. Moore was issued in V.A. benefits $199 per month in July, 1977 and $354 per month thereafter until January, 1978, when the award became $305.95 per month. Mrs. Moore consistently denied having made any untrue statements with regard to any V.A. benefits received by her household. The evidence is certainly confused and equivocal; and there is no reconciliation of it in the record or in argument before this court. In the absence of the V.A. letters (which it was error to admit in the case to prove fraud by Mrs. Moore to obtain food stamps), the other evidence does not support, much less demand, a verdict of guilty beyond a reasonable doubt. Hamilton v. State, 239 Ga. 72, 77, 235 S.E.2d 515; Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869; Cauley v. State, 130 Ga.App. 278, 286-288, 290-293, 203 S.E.2d 239.
Appellee asserts that the holding in this case is in conflict with the controlling authority in Childs v. Logan Motor Co., 103 Ga.App. 633, 120 S.E.2d 138, and Lewis v. United California Bank, 143 Ga.App. 126, 237 S.E.2d 645, and that the "failure of this court to address and reconcile the holding of (Martin v. Baldwin, cited in main opinion) and Lewis, supra, the failure to apply the rationale of Lewis to the instant fact situation and the failure to distinguish the instant facts from those in Martin, leave a substantial 'hole' in the application for the Business Records Act, Code Ann. § 38-711." We respond to this objection because it evinces a misunderstanding of certain fundamental evidentiary principles that seems to be appearing with some frequency. See, e.g., Cawthon Motor Co. v. Scheufler, 153 Ga.App. 282, 265 S.E.2d 96 (1980). This is, the fact that evidence may in some circumstances qualify as admissible on some ground for some purpose does not mean the evidence is admissible or relevant for the purpose offered.
The problem in this case is that letters or documents received by the Department of Family & Children Services from the Veterans' Administration were, in the classic statement on hearsay, offered as evidence "to prove the truth of the matter stated." 11 EGL 395, Evidence, § 88 (1979 Rev.) That is, the V.A. letters were offered by the Department of Family & Children Services to prove the fact that Mrs. Moore's household had been issued certain V.A. benefits and that, consequently, she had committed fraud in misrepresenting that fact.
Hearsay evidence is not admissible to prove the truth of the fact asserted, unless the evidence constitutes a recognized exception to the general rule excluding hearsay. 11 EGL 398, Evidence, § 89 (1979 Rev.) The Business Records Act (Code § 38-711) is an exception to the hearsay rule, and if a...
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