State v. Cain
Decision Date | 23 January 2014 |
Docket Number | Nos. 090532142,A145956.,s. 090532142 |
Citation | 260 Or.App. 626,320 P.3d 600 |
Court | Oregon Court of Appeals |
Parties | STATE of Oregon, Plaintiff–Respondent, v. Samuel Ray CAIN, aka Samuel R. Cain, Defendant–Appellant. |
OPINION TEXT STARTS HERE
Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General, and Samuel A. Kubernick, Assistant Attorney General, filed the brief for respondent.
Before ORTEGA, Presiding Judge, and NAKAMOTO, Judge, and DE MUNIZ, Senior Judge.
Following a bench trial, defendant was convicted of five counts of first-degree theft, ORS 164.055, for improperly obtaining unemployment benefits. The court sentenced defendantto supervised probation and ordered him to pay restitution to the Oregon Employment Department (the department) in the amount of $26,004 plus 12 percent interest. Defendant now appeals the judgment, arguing that the trial court erred when it (1) admitted an exhibit over his hearsay objection; (2) denied his motion for a continuance; (3) added 12 percent interest to the restitution award; and (4) denied his motion for judgment of acquittal. We reject defendant's second and fourth assignments of error without discussion. Additionally, as explained below, we conclude that defendant's first assignment of error is without merit. However, as to defendant's third assignment of error, we agree that the trial court erred in adding 12 percent interest to the restitution award. Accordingly, we remand for resentencing; otherwise, we affirm.
Defendant was prosecuted for first-degree theft after the department discovered that he had under-reported his earnings in connection with his unemployment benefits claims. Specifically, defendant had failed to include in his reported earnings the gratuities he had earned working as a banquet server for the Hilton Hotel (the Hilton) in Portland.1 Due to that under-reporting, defendant received unemployment benefits in excess of what he would have been entitled to if he had accurately reported his earnings. After a bench trial, the court found defendant guilty of five counts of first-degree theft, and ordered him to pay the department restitution in the amount of $26,004 plus 12 percent interest.
In his first assignment of error, defendant contends that the trial court erred in admitting the state's Exhibit 1 because it contained inadmissible double hearsay. In reviewing a trial court's evidentiary ruling on the admissibility of a hearsay statement, we apply a two-part standard of review. State v. Cook, 340 Or. 530, 537, 135 P.3d 260 (2006). In the first part of that review, we “will uphold the trial court's preliminary factual determinations if any evidence in the record supports them.” Id. In the second part, we review “the trial court's ultimate legal conclusion, as to whether the hearsay statement is admissible under an exception to the hearsay rule, to determine if the trial court made an error of law.” Id. With that standard of review in mind, the facts relating to the admission of Exhibit 1 are as follows.
Exhibit 1 is a computer print-out of a chart prepared by the department that lists information about defendant's claims for each week that he claimed unemployment benefits, including: (1) the earnings that defendant reported to the department, (2) defendant's earnings as reported by his employer, the Hilton, (3) the amount of benefits defendant received, (4) the amount of benefits defendant should have received based on the earnings the Hilton reported, and (5) the amount of benefits defendant was overpaid as a result.
The state sought admission of Exhibit 1 through the testimony of Younger, the department's fraud investigator who prepared the chart and investigated defendant. Younger testified that she created the chart using a computer program in which she entered the name of the employer, the weeks in which defendant claimed benefits, how much defendant reported earning, and defendant's earnings as reported by his employer. The amounts in the last three columns of the chart-the benefits defendant received, the correct benefits amount, and the benefits overpaid-were calculated by a computer program.
Younger testified that employers report their employees' earnings to the department in quarterly earnings reports that are required as part of the employers' unemployment tax obligations. Younger said that the department collects and maintains employer-reported earnings information from these quarterly reports, and that, in this case, the initial information about defendant's employer-reported earnings came from quarterly reports filed by the Hilton. She also testified that the Hilton files quarterly reports with the department in the Hilton's ordinary course of business. She went on to explain that, in addition to storing information from the quarterly reports, the department uses that information to monitor unemployment claims. Specifically, Younger testified that the department uses a computer formula to compare the earnings reported by the employee to those reported by his or her employer. If a discrepancy exists between those reported earnings, the department sends an audit letter to the employer requesting information about the employee's hours, earnings, and wages for that period of time.
Younger testified that, in this case, the Hilton's quarterly reports listed a substantially higher amount of earnings for defendant than defendant had reported to the department. Because of that discrepancy—and pursuant to the department's audit process—the department sent an audit letter to the Hilton requesting defendant's earnings information. The Hilton filled out and returned the audit letter to the department, and it was later admitted at trial as Exhibit 5. Younger testified that the department enters the information from the audit letter into its computer system and then forwards the letter to an investigator, in this case, to her. Younger also testified that she used the information in the audit letter in her investigation of defendant and in filling out Exhibit 1. Younger said that, in addition to the audit letter, she requested the Hilton's payroll records to confirm that what the Hilton reported was accurate—a step Younger said was part of the department's investigation process. Finally, Younger confirmed that the Hilton reports its employees' earnings information in the course of its business with the department, that the department keeps that employer-reported data in the department's computer system, and that the tabulations she did were to confirm that the data reported to the department was correct.
The state also called a Hilton payroll coordinator, Shew, to testify at trial. Shew testified that the Hilton provided the department with accurate information about defendant's weekly earnings in the audit letter based on the Hilton's payroll records.
The trial court admitted Exhibit 1 over defendant's hearsay objection. It concluded that the exhibit was admissible as a summary of underlying business records under OEC 1006, as well as a business record under OEC 803(6).
On appeal, defendant renews his hearsay objection, contending that although part of Exhibit 1 was admissible as a business record of the department under OEC 803(6), in accordance with Younger's foundational testimony, the critical part of Exhibit 1—the column headed “Employer Reported Earnings”—was inadmissible double hearsay consisting of statements from the Hilton. Defendant asserts that Younger could not lay an appropriate foundation for the Hilton's statements concerning defendant's earnings to qualify them as a business record or as a summary of business records because she “was not a Hilton employee, did not maintain Hilton records, had no personal experience of [the] Hilton's payroll documentation practices except in her capacity as an investigator at the employment department, and had nothing to do with tabulating [the] Hilton's quarterly earnings reports.”
The state responds that, because the department has a duty to accurately investigate defendant's unemployment claims, and, because the Hilton had a duty to accurately report defendant's earnings to the department, the entirety of Exhibit 1 was admissible as a business record under OEC 803(6). The state further argues that no separate foundation was needed from a Hilton employee because the Hilton had a legal duty to provide accurate earnings information to the department and there was nothing about the source of data underlying the “Employer Reported Earnings” column, or the circumstances of its preparation, that indicated a “lack of trustworthiness.”
Thus, the issue we decide is whether the Hilton's statements of defendant's earnings rendered Exhibit 1 inadmissible based on hearsay. We agree with the state that Exhibit 1 and the information contained in the “Employer Reported Earnings” column qualified as a business record under OEC 803(6).2
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and is generally inadmissible unless it qualifies under a hearsay exception or is excluded from the category of hearsay. SeeOEC 801(3) (defining hearsay); OEC 802 ( ); OEC 803—804 ( ); OEC 801(4) ( ). The “business records exception” to the hearsay rule allows admission of:
“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...
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...shown to affect its weight, but they shall not affect its admissibility."1928 N.Y. Laws, ch. 532, § 1.14 See, e.g. , State v. Cain , 260 Or App 626, 630, 320 P.3d 600 (2014) (state called the payroll coordinator of the defendant's employer to lay a foundation for admission, under OEC 803(6)......
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