Newman v. State
| Decision Date | 31 December 1996 |
| Docket Number | No. 71A03-9605-CR-161,71A03-9605-CR-161 |
| Citation | 675 N.E.2d 1109 |
| Parties | Waddell NEWMAN, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appellant-defendant Waddell Newman, Jr. appeals his conviction for fraud, a Class D felony. Newman was sentenced to a one-year term of imprisonment which was suspended with a one-year term of probation imposed. The evidence relevant to the appeal is recited below.
Newman worked as night engineer at Washington High School in South Bend, Indiana. He shared an office with the day engineer, John Fergusson. On Sunday, October 2, 1994, Fergusson realized that he must have left his briefcase and wallet in the office. On Monday, he searched the office but did not find the wallet. When he asked Newman about others being in the office, Newman suggested that he notify the credit card companies.
After thoroughly searching the office and his home, Fergusson contacted the credit card companies. One company verified that his credit card had been used to make a purchase at ABC Warehouse. Fergusson was given a copy of the receipt. Based upon his familiarity with Newman's handwriting, Fergusson believed that the signature on the receipt was similar to Newman's handwriting. Fergusson gave a copy of the receipt to the investigating police officer.
When asked by the police officer, Newman voluntarily went to the police station to discuss the matter. At the police station, Newman allowed his photograph to be taken for the express purpose of showing the ABC Warehouse clerk.
The ABC Warehouse employee, Brian Cichocki, who assisted the person who made the credit card purchase identified Newman as the person who purchased a 27-inch television with the card. Cichocki was shown a photographic array which included Newman's photograph. Cichocki also identified Newman during the trial.
As noted, Newman was convicted of fraud based upon his use of the credit card without Fergusson's permission. This appeal ensued.
As restated, Newman presents one issue for review: whether the trial court erred in allowing admission of a comparison handwriting sample which was not properly authenticated.
During examination of Fergusson at trial, a handwritten note was introduced into evidence. Over Newman's objection, Fergusson was allowed to testify that the note regarding a work matter was written by Newman. The note was used as an exemplar for comparison with the signature on the charge slip from ABC Warehouse and as the basis for Fergusson's opinion that the handwriting was Newman's. On appeal, Newman acknowledges that the ruling appears to be in compliance with evidentiary rules, but he complains that the ruling is in conflict with Indiana common law which requires a strict showing of authenticity prior to admission of handwriting exemplars for comparison purposes.
In pertinent part, Ind. Evidence Rule 901 provides:
Requirement of Authentication or Identification
(a) General Provision. The requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.
(2) Nonexpert Opinion on Handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
Newman strenuously argues that the strict methods of authentication survived the adoption of the rules of evidence. Newman thoughtfully relates the commentary accompanying the rules to existing case law.
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...Id. Additionally, authentication of an exhibit can be established by either direct or circumstantial evidence. Newman v. State, 675 N.E.2d 1109, 1111 (Ind.Ct.App.1996)."...."At the time of Pavlovich's trial, Indiana Evidence Rule 901(b)(4) provided that evidence could be authenticated by ‘[......
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...the exhibit is what it purports to be and that its condition is substantially unchanged as to any material feature." Newman v. State, 675 N.E.2d 1109, 1111 (Ind.Ct.App.1996). Absolute proof of authenticity is not required. Id. A proper foundation for the introduction of physical evidence is......
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