Simmons v. State

Decision Date23 January 1978
Docket NumberNo. 2-976A332,2-976A332
Parties, 5 A.L.R.4th 1201 Vickie Elaine SIMMONS, Appellant (Respondent below), v. STATE of Indiana, Appellee (Petitioner below).
CourtIndiana Appellate Court
John H. Meyers Public Defender, Lafayette, for appellant

Theo. L. Sendak, Atty. Gen., Robert L. Clegg, III, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Vickie Elaine Simmons (Vickie) appeals from a judgment declaring her a delinquent child due to habitual truancy and incorrigibility, claiming certain school attendance records were erroneously admitted and the evidence was insufficient to sustain a finding of habitual truancy and incorrigibility.

We affirm.

FACTS

The facts most favorable to the State reveal that on February 25, 1976, a Verified Petition Alleging Delinquency was filed against Vickie by the Tippecanoe County Probation Department. A fact finding hearing was held on April 1, 1976.

The basis for the petition was that Vickie, then fourteen years of age, was "incorrigible, ungovernable, habitually disobedient, and beyond the control of her parents, guardians, and other custodians", and that she was habitually truant.

Vickie lived with her parents in Tippecanoe County, Indiana, and attended Klondike Junior High School (Klondike) in Tippecanoe County.

Between November 3, 1975, and January 6, 1976, Vickie was listed as having been absent without excuse from Klondike for fifteen (15) of the forty-five (45) school days within that period. Specifically, she was absent on: November 6; 18; 19; 26; and 27. During the month of December she was absent, without excuse, on the 5th and the 12th. In January she was absent the 5th, 6th, 9th, 12th, 13th, 14th, 15th, 16th. Further, between January 16, 1976, and February 25, 1976, she had thirteen (13) unexcused absences in seventeen (17) school days.

An "unexcused absence" at Klondike was an absence for which the school had not received a valid excuse from the student's parents. Such an excuse could be by telephone or by note. The attendance records of Klondike contained no excuses for Vickie.

Not all absences, however, were Vickie's doing. While the record does not reflect the precise dates, (indeed, all witnesses were vague as to dates), it appears that some unexcused absences after February 23, 1976 were due to Vickie's being incarcerated Robert W. Maier, the attendance and social worker for the Tippecanoe School Corporation, testified that he spoke to Vickie's parents regarding Vickie's attendance, on several occasions.

or otherwise detained by authorities. Finally, at a time not appearing in the record, Klondike excluded Vickie from attending any classes.

In addition to having missed classes, Vickie ran away from home several times. While the record is virtually barren as to precise dates, Emmett C. Simmons (Simmons), Vickie's father, testified that Vickie had been absent from home without permission on at least four occasions. On one such occasion, probably during the last part of January, 1976, she had been absent for two weeks before she was seized. After one absence Vickie was placed in the Scholar Home by the authorities . . . and promptly ran away after having been there two hours.

Saundra Simmons (Saundra), Vickie's mother, testified that Vickie had run away from home on more than one occasion. Though Saundra was unable to testify as to precise dates, she did say, "I'd say she's been gone about half of the last three months". Following one such event Vickie was detained by the police. Upon her release from police custody, she promptly ran away again.

From time to time, when her whereabouts was unknown, Vickie would call her mother and state, "Hi, Mom, I'm fine. I'll call you tomorrow."

Saundra was aware that Vickie had school attendance problems, and testified that she had frequently discussed Vickie's habitual desertion of her home and failure to attend school with Vickie, and had instructed her not to leave home without Saundra's knowledge and permission . . . to no avail.

Ultimately the judgment of the trial court was:

The Court having previously heard evidence and having the matter under advisement now finds that Vickie Elaine Simmons was born July 29, 1961, that she is now fourteen (14) years of age and at the time of filing of the petition alleging delinquency she resided with her parents at 2081 Lindbergh Road, West Lafayette, Tippecanoe County, Indiana. The Court further finds Vickie Elaine Simmons is a delinquent child in that she is habitually truant and that she is incorrigible, ungovernable, habitually disobedient and beyond the control of her parents. Evidence is now heard regarding disposition. And the Juvenile Referee, being duly advised, now recommends Vickie Elaine Simmons, minor subject, be committed to the Indiana Girls School until such time as she shall attain the age of twenty-one (21) years unless otherwise sooner released by proper authorities. David J. Crouse, Juvenile Referee. (emphasis supplied)

Vickie was committed to the Indiana Girls School.

Additional facts relating to the admission of attendance records in evidence are contained in the discussion of ISSUE ONE.

ISSUES

Vickie presents three issues for our consideration:

(1) Were Klondike's attendance records erroneously admitted into evidence because the person making the entries did not have personal knowledge of the absences represented by the entry?

(2) Was the evidence of absenteeism offered by the State sufficient to prove that Vickie was a confirmed truant?

(3) Is evidence of repeated desertion of her home by Vickie sufficient to prove that she was incorrigible?

PARTIES' CONTENTIONS Vickie argues that Klondike's attendance records were improperly admitted because Carolyn Bridge (Bridge), who made the entries, did not have personal knowledge of her absences. She next contends that the evidence was insufficient for a finding of habitual truancy as the State did not present any evidence to demonstrate on which days The State responds that Klondike's attendance records were properly admitted as the records were made in the normal course of the school's activity. The State further argues that the evidence was sufficient to sustain the judgment that Vickie was a confirmed truant and that evidence of repeated desertion from her home is sufficient to prove a charge of incorrigibility.

Vickie was actually truant, or otherwise absent, or whether those days established a pattern sufficient to justify a finding that she was a confirmed truant. Finally, she argues that proof of repeated desertion from home does not justify a finding of incorrigibility.

DECISION
ISSUE ONE

CONCLUSION Klondike's attendance records were properly introduced under the "business records" exception to the hearsay rule.

Juvenile matters are considered civil, rather than criminal, in nature. State ex rel. McClintock v. Hamilton Circuit Court (1968), 249 Ind. 333, 232 N.E.2d 356, but they are adversarial. State ex rel. Duffy v. Lake Juvenile Court (1958), 238 Ind. 404, 151 N.E.2d 293 and the "hearsay rule" 1 applies in juvenile proceedings. In re Green (1952), 123 Ind.App. 81, 108 N.E.2d 647.

One of the recognized exceptions to the hearsay rule is the "business records doctrine". By the terms of this exception:

(D)ocumentary evidence is admissible if 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 both the duty to so record and personal knowledge of the transaction represented by the entry. American United Life Insurance Company v. Peffley (1973), 158 Ind.App. 29, 301 N.E.2d 651, 656 (emphasis supplied).

See also Herman v. State (1965), 247 Ind. 7, 210 N.E.2d 249, cert. denied, 384 U.S. 918, 86 S.Ct. 1364, 16 L.Ed.2d 439.

The essence of Vickie's objection to the admission in evidence of Klondike's attendance records is that the notations made by the entrant (Bridge) as to her absences were made without personal knowledge on Bridge's part.

This precise question has not been decided in Indiana, although personal knowledge of the transaction is generally considered a prerequisite for the admittance of business records. Wells v. State (1970), 254 Ind. 608, 261 N.E.2d 865. However, at least one state Arizona, has held that school attendance records are admissible under the "business records" exception to the hearsay rule. Parsons v. Smithey (1976), 109 Ariz. 49, 504 P.2d 1272; Snyder v. Beers (1965), 1 Ariz.App. 497, 405 P.2d 288, 291.

The attendance procedure utilized at Klondike was as follows: At the beginning of the first period of the school day, each teacher noted the names of absent students on a form and posted the form outside the classroom. An office worker then collected the forms and took them to Bridge in the principal's office. She compiled a list of the students listed as absent by the teachers and sent duplicates of that list to the teachers. Any discrepancies between actual attendance and the list were to be reported by the teachers to the principal's office. Bridge would then record any unexcused absences in the attendance ledger. In testifying she identified the attendance records, that the notations appearing therein were made by her based on the information given her, and that it was her duty to make the notations.

This procedure is akin to classic "double hearsay". 2 The business record contains an assertion by someone other than the maker (Bridge). However, Bridge did know of her own knowledge that she was told of Vickie's absence by teachers whose duty it was to make such reports in the regular course of school business. 3 And further she made the notations of Vickie's absences as part of her duties in the normal course of school business. This combination of circumstances constitutes a reliable indicator...

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