State v. Ben-Neth

• Decision Date: 09 May 1983
• Docket Number: BEN-NET,A,No. 11148-5-I,11148-5-I
• Citation: 34 Wn.App. 600,663 P.2d 156
• Parties: STATE of Washington, Respondent, v. Richardppellant.
• Court: Washington Court of Appeals

Page 600

34 Wn.App. 600

663 P.2d 156

STATE of Washington, Respondent, v. Richard BEN-NETH, Appellant.

No. 11148-5-I.

Court of Appeals of Washington Division 1.

May 9, 1983.

Washington Appellate Defender, Jonathan S. Cole, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Larry McKeeman, Deputy Pros. Atty., Seattle, for respondent.

RINGOLD, Judge.

The defendant, Richard Ben-Neth, appeals his conviction by a jury of six counts of unlawful issuance of checks, RCW 9A.56.060. He challenges the admissibility of computer-generated records, denial of his motion to sever charges and the sufficiency of the evidence to convict. We hold that the trial court ruled properly on each of these issues and affirm.

On March 18, 1981 Ben-Neth opened a checking account with Pacific Bank ¹ (the bank), depositing $150. On March 25 the bank informed Ben-Neth that his account was overdrawn, and he deposited enough to cover the overdrafts. Over the next month, Ben-Neth made two additional deposits, and had three checks returned for insufficient funds. The bank sent notices for each dishonored check, and Ben-Neth was contacted numerous times by creditors regarding the NSF checks.

On April 28 Ben-Neth wrote two checks to Western Airlines which were returned for insufficient funds. Western Airlines contacted him three times about these dishonored checks.

On May 27 the bank deposited $117.73 to cover overdrafts and closed Ben-Neth's account. He was sent a statement indicating his zero balance and debt to the bank of $117.73, but may not have been notified that his account was closed. On May 28 Ben-Neth wrote a $31.17 check to University Chevrolet which was returned.

Ben-Neth continued to use the closed account. On June 15 he wrote a $250 check to Bar Review Associates of Washington. On June 19 and again on June 27 he wrote checks for $120 to his friend's wife, Cathy Chapman. Ben-Neth wrote a $100 check on June 20 and a $200 check on June 21 to Marjorie Wright, his employer's secretary (Count five). All the checks were dishonored.

Ben-Neth was charged with two felony and four misdemeanor counts of unlawful issuance of checks. The court denied his pretrial motion to sever the counts, reasoning that they were of the same character and evidence of one count and would be admissible to prove the other counts. Over his objection the trial court admitted computerized bank records pertaining to Ben-Neth's account. Ben-Neth was convicted on all six counts and his probation was revoked. His appeal from the judgment and probation revocation were consolidated.

COMPUTERIZED RECORDS

Ben-Neth first contends that the trial court erred in admitting the bank's computer records of his account transactions. ² Computer-generated evidence is hearsay but may be admitted as a business record provided a proper foundation is laid under RCW 5.45.020, which provides:

Business records as evidence. A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

If the statutory requisites are met, computerized records are treated the same as any other business records. Seattle v. Heath, 10 Wash.App. 949, 520 P.2d 1392 (1974).

Ben-Neth challenges the qualifications of the two bank officials as proper foundation witnesses. The statute does not require examination of the person who actually made the record. Cantrill v. American Mail Line, Ltd., 42 Wash.2d 590, 257 P.2d 179 (1953). Testimony by one who has custody of the record as a regular part of his work or has supervision of its creation ("other qualified witness" under the statute) will suffice. Cantrill. The rule is disjunctive, not conjunctive. Cf. State v. Smith, 16 Wash.App. 425, 558 P.2d 265 (1976), review denied, 88 Wash.2d 1011 (1977) (misinterpreting Cantrill as requiring testimony by both the custodian and supervisor). Admissibility hinges upon the opinion of the trial court that "the sources of information, method and time of preparation were such as to justify its admission." RCW 5.45.020; K. Tegland, 5A. Wash.Prac. § 372, at 240 (2d ed. 1982). A trial court's ruling admitting or excluding such records is given considerable weight and will not be reversed absent a manifest abuse of discretion. State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975); Cantrill.

Reviewing courts have broadly interpreted the statutory terms "custodian" and "other qualified witness." In State v. Smith, 55 Wash.2d 482, 348 P.2d 417 (1960), the court held that the owner of a chain of clothing stores provided adequate foundation testimony for the introduction of business records of a branch store because, in a general sense, all the chain's business records were prepared under the owner's general supervision. In Cantrill the court ruled that a supervising physician and a medical records librarian were proper foundation witnesses for the introduction of the clinic's medical records. In both Kreck and State v. Rutherford, 66 Wash.2d 851, 405 P.2d 719 (1965), the supervisor of the person who conducted tests was allowed to produce the results as business records.

Washington courts have taken a similar approach to foundation testimony in cases dealing with computer-generated business records. In Heath the trial court admitted teletype printed material from a teletype printer connected to a central computer as a business record. Foundation testimony was furnished by an assistant director of the Traffic Violations Bureau of the Seattle Municipal Court, although the computer was located in Olympia. The assistant director identified two exhibits as abstracts of driving records stored in the computer, described how the records are retrieved, and testified that a clerk under his supervision had obtained the records for him. He was custodian of the printouts after they came from the teletype but not the custodian for the entire department.

Two cases concerning computerized bank records are instructive. In State v. Smith, 16 Wash.App. 425, 558 P.2d 265 (1976), the trial court admitted an exhibit prepared by a bank employee from computer printouts. A bank vice-president and not the employee furnished the foundation testimony. The vice-president was considered to have supervised the preparation and recordation of all the bank's records, and therefore to be a qualified foundation witness. In State v. Kane, 23 Wash.App. 107, 594 P.2d 1357 (1979), a bank branch officer who had prepared a trial exhibit from computer printouts of account records was considered to be their custodian and therefore a qualified foundation witness. See also 7 A.L.R. 4th 8 (1981) and cases cited therein.

Here the records of Ben-Neth's account were produced by the supervisor of the customer service department of that branch office and by its operations officer. The customer service supervisor had opened Ben-Neth's account, and testified to being familiar with the bank's record keeping procedures. He was not a records custodian or supervisor of record-keeping, but was able to describe the method for retrieving monthly account statements from the computer. Although the court found that the customer service supervisor was a qualified foundation witness, his superior also testified. As operations officer she supervised record- keeping at that branch but did not supervise and was not familiar with procedures at the bank's central computer center, located elsewhere. Neither she nor the customer service supervisor had...