State v. Fleming
| Decision Date | 13 April 2010 |
| Docket Number | No. 37533-8-II.,37533-8-II. |
| Citation | 228 P.3d 804 |
| Parties | STATE of Washington, Respondent, v. Harry FLEMING III, Appellant. |
| Court | Washington Court of Appeals |
COPYRIGHT MATERIAL OMITTED
Roger A. Hunko, Attorney at Law, Tina Robinson, The Law Office of Wecker Hunko & Bougher, Port Orchard, WA, for Appellant.
Jennine E. Christensen, Kitsap County Prosecuting Atty., Port Orchard, WA, for Respondent.
¶ 1 A jury entered a verdict finding Harry Fleming III guilty of theft of rental, leased, or lease-purchased property, contrary to former RCW 9A.56.096 (2003). Fleming appeals his conviction, arguing that the trial court erred by admitting unreliable hearsay evidence under the business record exception rule, by admitting hearsay evidence in violation of his Sixth Amendment confrontation rights, and by giving a "presumption of intent to deprive" jury instruction. Fleming also argues that sufficient evidence does not support his conviction. Although sufficient evidence supports the jury's verdict, the State did not present any evidence that Fleming received the written notice former RCW 9A.56.096 requires from which the jury could presume his intent to deprive, and the trial court erred in giving the challenged jury instruction. Accordingly, we reverse but remand for a new trial.
¶ 2 Quality Rentals is a rent-to-own furniture company in Bremerton, Washington. On May 17, 2006, Fleming signed a rental lease with Quality Rentals for a three-piece wall unit. As part of a sales promotion, Fleming paid $10 to take the entertainment system home. Fleming did not make any additional payments for the wall unit.
¶ 3 Beginning on May 27, 2006, Quality Rentals attempted to contact Fleming by telephone regarding his payment status. Quality Rentals was unable to contact Fleming because there was no answer when they called or because the person answering the phone would hang up; Quality Rentals did not leave any phone messages.
¶ 4 On May 30, 2006, Fleming returned to Quality Rentals and signed a lease for a sectional couch. He paid $10 to take the couch home, but he failed to make any additional payments. On June 7, 2006, a Quality Rentals employee went to Fleming's residence and left a "final notice" on his door indicating that his payments were past due and demanding that he return the rented property. Report of Proceedings (RP) (Feb. 20, 2008) at 82. Quality Rentals again left final notices on Fleming's door on June 12, June 21, June 22, and June 28.
¶ 5 On June 12, 2006, Quality Rentals also sent Fleming demand letters that stated his payments were past due. The demand letters informed Fleming that the State might criminally prosecute him if he failed to return the rented property within 72 hours of receiving notice. Quality Rentals sent the demand letters through certified mail. After unsuccessful attempts to deliver the demand letters on June 13 and June 20, the post office returned the unclaimed letters to Quality Rentals on June 29, 2006.
¶ 6 On July 31, 2007, the State charged Fleming with theft of rental, leased, or lease-purchased property. On February 19, 2008, the trial court held a hearing on the parties' pretrial motions. Fleming objected to several documents that he anticipated the State would attempt to offer under the business records exception rule, including computer printouts of customer contact notes, and an envelope purportedly containing demand letters. Fleming asserted that the trial court could not admit those documents under the business record exception to the hearsay rule because the documents did not meet foundational requirements of RCW 5.45.020.1
¶ 7 Fleming argued that because Quality Rentals had fired Tammie Hale, the employee who purportedly generated the documents at issue, and she was unavailable as a witness, the trial court could not determine whether the documents were reliable. The State responded that Fleming's contentions with the documents went to weight of the evidence and not to their admissibility. The trial court held an ER 1042 hearing prior to jury selection on February 20, 2008.
¶ 8 At the ER 104 hearing, Quality Rentals manager Todd Caspary testified that exhibit number five contained a history of every point of contact with Fleming. Caspary stated that Quality Rentals trains every employee to make entries in the computer system documenting customer contacts soon after the employee takes any action concerning a customer and that the computer time stamps each entry after the employee enters it into the system. Caspary also stated that exhibit number five was not a complete record of each transaction because the computer can only print out a limited number of characters. Caspary testified that Hale had made some of the entries in Fleming's customer contacts document. Caspary admitted that he later fired Hale because of "anomalies" in her recordkeeping.
¶ 9 Caspary testified that Quality Rentals processed two demand letters on June 8, 2006. Caspary stated that the demand letters were prepared in the regular course of business. Caspary identified exhibit number eight as an envelope with a return receipt, stating that, although Quality Rentals mailed it to Fleming on June 8, 2006, the post office did not appear to process it until June 13, 2006. Caspary stated that the "general process is the day I print the letter, I seal it in the envelope, . . . take it to the post office and send it certified." RP (Feb. 20, 2008) at 23. Caspary stated that he did not personally process these demand letters or mail them but he believed that Hale did. Upon noting the postmark on the envelope as June 12, 2006, Caspary testified that although a demand letter is printed on a particular day and the computer would show that as the day it was sent, an employee might not mail it that day. Caspary stated that there might not be enough petty cash or there might be another reason that an employee did not mail a demand letter the same day it was processed.
¶ 10 The trial court admitted the customer contact document, the envelope, and reserved its ruling on the demand letters. Regarding its ruling on the customer contact document, the trial court stated:
The customer contact notes are clearly a routine business record kept by this business, and it's clerical in nature, documenting events that happened in the business. The argument that it's not complete or not accurate I think again is going to the weight, not the admissibility, because this is what their computer is set up to do and it did what the computer is set up to do. Whether it's X amount of letters that the computer can print—or I guess that's what it is, it cuts off at some point—it is what it is, and it's a business record, so the motion. . . is denied to suppress the customer contact notes history.
¶ 11 When the State introduced the demand letters at trial, Fleming renewed his objection to their admission under the business record exception. Fleming also argued that the demand letters were not relevant because the post office returned the certified letter to Quality Rentals and the parties did not open the sealed envelope until trial began. The trial court admitted the demand letters over Fleming's objection, stating that whether Fleming received the letters was an issue of fact for the jury. Fleming also objected to a number of other documents that the court admitted under the business record exception to the hearsay rule.
¶ 12 The State proposed jury instruction number 11, a "presumption of intent to deprive" instruction. Jury instruction number 11 stated:
¶ 13 Fleming argued that the theft of rental property statute, former RCW 9A.56.096, allows the jury to presume an intent to deprive only upon a showing that the defendant received the proper notice. Fleming did not contend that Quality Rentals failed to send proper notice, but he instead argued that there was no showing that he actually received the notice because the post office returned the demand letters to Quality Rentals unclaimed. The trial court gave jury instruction number 11 over Fleming's objection.
¶ 14 The jury entered a verdict finding Fleming guilty of theft of rental property. Fleming timely appeals his conviction.
¶ 15 Fleming first contends that the trial court erred by admitting documents into evidence under the business record exception to the hearsay rule.3 Fleming specifically contends that the admitted documents were unreliable because Quality Rentals fired the employee that created the documents due to "anomalies" in her recordkeeping. The State counters that the trial court did not err by admitting the business records because Quality Rentals manager Caspary provided the proper foundation for the trial court to admit the documents. We agree with the State.
¶ 16 The Uniform Business Records as Evidence Act (UBRA), ch. 5.45 RCW, makes evidence that would otherwise be hearsay competent testimony. State v. Ziegler, 114 Wash.2d 533, 537, 789 P.2d 79 (1990). To be admissible under the business records exception, the business record must (1) be in record form; (2) be of an act, condition, or...
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State v. Oeung
... ... State's burden of proof. [ 18 ] We disagree ... We ... review a trial court's jury instructions for abuse of ... discretion, but we review an alleged error of law in jury ... instructions de novo. State v. Fleming , 155 Wn.App ... 489, 503, 228 P.3d 804 (2010). Jury instructions are ... sufficient when they are supported by the evidence, allow ... each party to argue its theory of the case, and inform the ... jury of the applicable law. Fleming , 155 Wn.App. at ... 503-04 ... ...
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State v. Oeung
... ... State's burden of proof. [ 18 ] We disagree ... We ... review a trial court's jury instructions for abuse of ... discretion, but we review an alleged error of law in jury ... instructions de novo. State v. Fleming , 155 Wn.App ... 489, 503, 228 P.3d 804 (2010). Jury instructions are ... sufficient when they are supported by the evidence, allow ... each party to argue its theory of the case, and inform the ... jury of the applicable law. Fleming , 155 Wn.App. at ... 503-04 ... ...
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State v. Oeung
...jury instructions for abuse of discretion, but we review an alleged error of law in jury instructions de novo. State v. Fleming, 155 Wn. App. 489, 503, 228 P.3d 804 (2010). Jury instructions are sufficient when they are supported by the evidence, allow each party to argue its theory of the ......
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State v. Williams
...Records as Evidence Act (UBRA), ch. 5.45 RCW, makes evidence that would otherwise be hearsay competent testimony." State v. Fleming, 155 Wn. App. 489, 499, 228 P.3d 804 (2010).To be admissible under the business records exception, (1) the business record must be in record form; (2) be of an......