State v. Hill, No. 29258.

• Court: Court of Appeals of Idaho
• Writing for the Court: LANSING, Chief.
• Citation: 97 P.3d 1014,140 Idaho 625
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Renda Rene HILL, Defendant-Appellant.
• Docket Number: No. 29258.
• Decision Date: 13 May 2004

97 P.3d 1014
140 Idaho 625

STATE of Idaho, Plaintiff-Respondent,
v.
Renda Rene HILL, Defendant-Appellant

No. 29258.

Court of Appeals of Idaho.

May 13, 2004.

Review Denied September 3, 2004.

97 P.3d 1016

Molly J. Huskey, State Appellate Public Defender; Paul S. Sonenberg, Deputy Appellate Public Defender, Boise, for appellant

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

LANSING, Chief Judge.

Renda Rene Hill appeals the judgment of conviction entered after a jury found her guilty of forgery. She contends that the district court committed reversible error by failing to instruct the jury that a defendant could not be convicted solely on the testimony of an accomplice. Hill also asserts that the court erred in admitting certain documents into evidence and that there was insufficient evidence to support her conviction.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from the evidence presented by the State at trial. Hill's friend, Shirley Beierle, told Hill that Michael Paxton, the man Beierle lived with, had just recently died. Upon learning that Beierle was in possession of Paxton's $829 Social Security check, Hill offered to cash the check for Beierle. Beierle accepted the offer, and a few days later, in Hill's presence, Beierle signed both her name and Paxton's on the back of the check. She then gave the check to Hill, who cashed the check at the Bank of Commerce while Beierle waited in the car. Hill retained $250 of the check proceeds and gave the remainder to Beierle.

A few weeks later, the Bank of Commerce received the check back from the federal government. One of the Bank's employees, Mark Nelson, attempted to contact Hill to discuss repayment of the check but was continually unable to reach her. After approximately three months, a bank representative contacted Detective Charles Decker of the Idaho Falls Police Department regarding the returned check. She told Detective Decker that a check had been returned to the bank because the payee was deceased and his endorsement had been forged. Decker contacted Beierle, who admitted that she had signed the check and that Hill had cashed the check in exchange for $250. Decker then questioned Hill, who claimed that Beierle had asked her to cash the check for Paxton because he was too sick to do so himself. Hill said that she had not known that Paxton was dead.

Hill was charged with one count of forgery, Idaho Code § 18-3601, with the prosecution requesting a persistent violator sentence enhancement, I.C. § 19-2514. Following a jury trial, Hill was found guilty. She then filed a motion for a judgment of acquittal pursuant to Idaho Criminal Rule 29(a), arguing that there was insufficient evidence to support the jury's verdict because the testimony of Beierle, an accomplice, was uncorroborated. The trial court denied the motion. Hill now appeals, alleging trial errors and challenging the denial of her motion for a judgment of acquittal.

II.

ANALYSIS

A. Admission of Evidence

1. Reclamation document

During the trial, the State sought to introduce into evidence, through an employee of the Bank of Commerce, a document entitled "Request for Refund (Check Reclamation)." The document was sent to the Bank of Commerce from the Federal Reserve Bank and advised the Bank of Commerce

97 P.3d 1017

that Paxton's social security check had been negotiated on a "forged or unauthorized endorsement" as Paxton had died prior to issuance of the check. Hill objected to its admission, arguing that the document was inadmissible hearsay. The State responded that it was admissible under Idaho Rule of Evidence 803(6) as a regularly kept business record. The district court overruled Hill's objection and admitted the exhibit

Hill argues on appeal that the document was not admissible under I.R.E. 803(6) because it was not a record generated by the Bank of Commerce and bears no signature, letterhead, or any indication of who prepared it. The State argues that the document was admissible because it was received and kept by the Bank of Commerce in the regular course of its business and for the purpose of making business decisions.¹

Rule 803(6),² the business record exception to the hearsay rule, allows admission of a record or report if it was made and kept in the course of a regularly conducted business activity and if it was the regular practice of that business to make the report or record. See Henderson v. Smith, 128 Idaho 444, 450, 915 P.2d 6, 12 (1996); In the Interest of S.W., 127 Idaho 513, 520, 903 P.2d 102, 109 (Ct.App.1995). These foundational requirements must be shown through "the testimony of the custodian or other qualified witness." I.R.E. 803(6). That is, the record must be authenticated by someone "who has custody of the record as a regular part of his or her work or who has supervision of its creation." Henderson, 128 Idaho at 450, 915 P.2d at 12. A document is not admissible under I.R.E. 803(6) unless the person testifying has a personal knowledge of the recordkeeping system used by the business which created the document. Id., Herrick v. Leuzinger, 127 Idaho 293, 297, 900 P.2d 201, 205 (Ct.App.1995).

This Court addressed a similar situation in In the Interest of S.W. We there held that a letter from a psychotherapist to a Court Appointed Special Advocate (CASA) volunteer, which was admitted through the testimony of the CASA volunteer who received the letter rather than the psychotherapist who prepared it, was not admissible under the business record exception. In the Interest of S.W., 127 Idaho at 520, 903 P.2d at 109. We stated:

Although CASA may be a business entity within the scope of the rule, CASA is not the business that prepared the letter. Just putting the letter in CASA's files did not transform it into CASA's business record within the meaning of I.R.E. 803(6).

Id.

In the case before us, the State introduced the reclamation document, which was generated by the Federal Reserve Bank or some other agency, through the testimony of a Bank of Commerce employee. The witness testified that the document was received by the Bank of Commerce and kept by the Bank of Commerce as part of its regular business procedures, but he could not testify about the preparation of the document and was unaware of the procedures used and followed in its preparation. There was no testimony presented by any witness familiar with the system used to create the document. As we held in In the Interest of S.W., mere receipt and retention of a document created by another entity cannot transform the document into a business record of the recipient for the purposes of the business record exception. Accordingly, the district court erred in admitting

97 P.3d 1018

the reclamation document under I.R.E. 803(6)

However, error in the admission of evidence does not require the reversal of a judgment if, in the context of the entire trial, the error was harmless. I.R.E. 103; I.C.R. 52; State v. Goerig, 121 Idaho 108, 111, 822 P.2d 1005, 1008 (Ct.App.1991); State v. Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct.App.1983). An evidentiary error is harmless if the reviewing court "can find beyond a reasonable doubt that the jury would have reached the same result without the admission of the challenged evidence." State v. Moore, 131 Idaho 814, 821, 965 P.2d 174, 181 (1998); State v. Slater, 136 Idaho 293, 300, 32 P.3d 685, 692 (Ct.App.2001). The reclamation document did not present the jury with any information that had not already been introduced through the testimony of other witnesses. Beierle testified that Paxton had died and that she had thereafter forged his...