Stahl v. State, 43A03-9604-CR-136
| Decision Date | 15 January 1997 |
| Docket Number | No. 43A03-9604-CR-136,43A03-9604-CR-136 |
| Court | Indiana Appellate Court |
| Parties | Randy G. STAHL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Appellant-defendant Randy G. Stahl appeals his convictions for fraud on a financial institution, as a Class C felony, and theft, as a Class D felony. The facts relevant to appeal are recited below.
On June 10, 1995, Vince Johnson informed a representative of Mutual Federal Savings Bank that his Automated Teller Machine (ATM) card was lost. A hold was placed on Johnson's account. On June 14, 1995, Johnson met with the bank branch manager regarding overdrafts charged to his account. The bank manager researched the account and determined that $150 in ATM withdrawals had been made on the account. Johnson reported that he had not made the withdrawals.
Further investigation by the bank manager revealed that the withdrawals had been made on June 9, 1995. The withdrawals stemmed from a series of withdrawal attempts which occurred each immediately after the other. The first attempt netted $100. The second attempt netted $50. At least two other attempts for $20 and $10 were unsuccessful.
The bank manager then reviewed the video tape of the withdrawals from Johnson's account. She discovered that Johnson had not made the withdrawals. The bank manager notified the police.
Johnson returned to the bank on June 15, 1995. Johnson was told that a clear picture of the person who made the withdrawals was obtained from the video tape.
The bank manager told Johnson that he had to complete an "affidavit of forgery" prior to viewing the tape. The affidavit is required by the bank prior to reimbursing an account for unauthorized withdrawals. The form expressly stated that Johnson "did not use such card or authorize its use by [another] person(s) for such transactions nor did [Johnson] receive any benefit from said transactions." After Johnson completed the form, his account was credited for the withdrawals, less a $50 charge, and the amount charged for overdrafts.
Police officers, the bank manager and Johnson then viewed the tape. Johnson was visibly surprised. He identified Stahl, a friend, as the person who made the withdrawals. One of the police officers in attendance also recognized Stahl.
Later that day, Johnson returned to the bank. He stated that he spoke to Stahl's mother and that she would reimburse him for the withdrawals. He asked that the charges be "dropped." Johnson then returned that day with the money to reimburse the bank.
Johnson did not testify at the trial. Stahl testified on his own behalf. He offered an explanation that he and Johnson were smoking marijuana when Johnson gave Stahl permission to use the ATM card. Stahl was convicted as stated above. This appeal ensued. Other evidence relevant to appeal is provided as necessary.
As restated, Stahl presents one issue for review: whether the trial court erred in admitting into evidence Johnson's affidavit.
Stahl contends that a proper foundation was not laid for admission of the affidavit, and, in turn, the conviction must fail because no other evidence of Stahl's unauthorized use of the ATM card exists. The affidavit was admitted through the bank manager's testimony. Stahl directs our attention to Ind. Evidence Rules 803(6) and 803(15). In pertinent part, they provide:
(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term 'business' as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
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(15) Statements in Documents Affecting...
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Stahl v. State
...hearsay rule for business records and for documents affecting an interest in property. The Court of Appeals affirmed. Stahl v. State, 675 N.E.2d 1130 (Ind.Ct.App.1997). Stahl requests either acquittal or a new trial. We grant transfer and remand because the document was inadmissible Factual......