State v. Hill

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

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.

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 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 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 endorsement on the Social Security check, and the Bank of Commerce employee testified that the check had been returned to the bank by the federal government. The reclamation document was therefore merely cumulative evidence. Consequently, we conclude that the error in the admission of this document was harmless.

2. Bank loan document

Shortly after being contacted by Detective Decker, Hill made arrangements with the Bank of Commerce to obtain a loan that would be used to repay the bank for the dishonored check. At trial the State introduced, over Hill's objection, the loan agreement signed by Hill, which stated that the purpose was to "pay for forged check/bank loss." Hill contends that the trial court erred in admitting this evidence without redacting the portion stating the purpose of the loan because that content was inappropriate lay opinion testimony and commented on the ultimate issue in the case.

The trial court did not err in admitting the loan agreement. The agreement is not lay opinion testimony; rather, it is a contract that was offered as an acknowledgment by Hill that the check was forged and had to be repaid. With respect to her argument that evidence addressing the ultimate issue in a case is inadmissible, Hill has offered no supporting authority. In fact, I.R.E. 704 specifically provides that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." (Emphasis added). The loan agreement is not inadmissible either because it is improper lay opinion testimony or because it speaks to an ultimate issue in the case.

Hill also contends that the agreement should have been excluded under I.R.E. 403 because its probative value was substantially outweighed by the danger of unfair prejudice. We conclude that there was no danger of unfair prejudice and therefore, no error in admission of the entire document.

B. Sufficiency of the Evidence

Hill next contends that her motion for a judgment of acquittal should have been granted because the State relied upon the testimony of an accomplice, Beierle, which under I.C. § 19-2117 cannot sustain a conviction unless it is corroborated by other evidence. Idaho Criminal Rule 29 authorizes entry of a judgment of acquittal "if...