State v. Propps, 84-836

CourtUnited States State Supreme Court of Iowa
Citation376 N.W.2d 619
Docket NumberNo. 84-836,84-836
PartiesSTATE of Iowa, Appellee, v. Frank Lee PROPPS, Appellant.
Decision Date13 November 1985

Page 619

376 N.W.2d 619
STATE of Iowa, Appellee,
Frank Lee PROPPS, Appellant.
No. 84-836.
Supreme Court of Iowa.
Nov. 13, 1985.

Page 620

Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellant Defender, for appellant.

Thomas J. Miller, Atty. Gen., Steven K. Hansen, Asst. Atty. Gen., and Dan L. Johnston, County Atty., for appellee.

Considered by HARRIS, P.J., and McGIVERIN, LARSON, CARTER and WOLLE, JJ.

HARRIS, Justice.

There are four assignments of error in this appeal from a conviction and subsequent sentence for false use of a financial instrument [FUFI]. See Iowa Code § 715.6 (1985). Defendant and Darlene Avant went to a Des Moines store to purchase automobile parts. As payment defendant tendered a money order made out for $193.50. The order was not endorsed, the payee was blank, and the figures appeared scratched and blurred. The cashier was naturally suspicious and refused to cash the order. Defendant and Avant left the store before the money order was returned. Police later apprehended them. According to the State's evidence the order had been purchased for $1.50 and altered by defendant and Avant.

Both defendant and Avant were jointly charged and tried. A directed verdict was entered in favor of Avant at the close of evidence. Defendant was convicted. We transferred defendant's appeal to the court of appeals which affirmed his conviction. On further review we also affirm.

I. There is no merit in defendant's first assignment, a challenge to a trial court ruling which admitted a photocopy of the seller's business copy of the $1.50 money order. Defendant objected that the photocopy was hearsay and not the best evidence. The court of appeals affirmed on this assignment and so do we.

A. Iowa rule of evidence 803(6) provides the business records exception to the hearsay rule. Admissibility under rule 803(6) is based on the guarantees of reliability and trustworthiness usually associated with business records. C. McCormick, Evidence § 306, at 720 (2d ed. 1972); see also State v. Fingert, 298 N.W.2d 249, 252

Page 621

(Iowa 1980) (business records exception prior to adopting Iowa rules of evidence).

To lay a foundation for the exhibit the State called a clerk from the shop where the defendant had purchased the $1.50 money order. The witness testified she regularly sold money orders as a part of her job and explained how they were issued and how the records were kept. She identified her initials on the money order sold to defendant and on the photocopy later admitted into evidence.

She could not specifically identify the exhibit from memory and could not testify the exhibit was made at or about the time it was issued. She sold many orders every day and could not remember much about any one sale. Defendant thinks these difficulties take the photocopy beyond the rule 803(6) exception. We disagree.

Rule 803(6) does not require the custodian of a record to have personal knowledge of each document. It is the impossibility of such recall that demonstrates the need for the exception. C. McCormick, supra.

B. The best evidence objection was also properly rejected. Iowa rule of evidence 1003 provides:

Admissibility of duplicates. A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) under the circumstances, admission of the duplicate would be unfair.

Under rule 1001(4), a duplicate includes a photocopy.

Here no one questioned whether the money order that was sold to defendant was in fact a money order. There is no evidence indicating it was unfair to admit the duplicate.

II. Defendant's second assignment contends an unendorsed money order is not a financial instrument within the meaning of Iowa Code section 715.1 (1985). There are two issues in the contention. Is a money order a financial instrument? If so, does it still qualify if it is unendorsed? Money orders are not specifically mentioned in the definition of a financial instrument. Section 715.1 provides, in pertinent part:

A financial instrument is any of the following: (1) A check, bill note, draft, bond receipt, or any writing which ostensibly evidences an obligation of, or surrender of right or claim by, the person who has purportedly executed it or authorized its execution. "Writing" includes printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege, or identification.

We have not previously considered whether money orders are included in the statute but we think they are.

A financial instrument includes a draft. See § 715.1. A money order is a "... draft issued by banks, post offices, telegraph companies and express companies and used by the purchaser as a substitute for a check." Black's Law Dictionary 907 (rev. 5th ed. 1979) (emphasis added); see also State v. LaRue, 5 Wash.App. 299, 303, 487 P.2d 255, 258 (1971) (money order constitutes a draft); 36 Am.Jur.2d Forgery § 27 (1968) ("The crime of forgery has been extended by statute, and to a considerable extent by judicial construction, until it covers nearly every class of instruments known to the law as affecting private or public rights."). Applying a reasonable construction to section 715.1, we believe a draft includes a money order. See State v. Newman, 313 N.W.2d 484, 486 (Iowa 1981).

A more serious question is posed by the lack of endorsement. Some words in the statute seem to presuppose the instrument is to be endorsed:

... any writing which ostensibly evidences an obligation of, or surrender or right of claim by, the person who has purportedly executed it or authorized its execution.

Section 715.1(1) (emphasis added).

Furthermore, section 715.2 provides, in pertinent part:

Page 622

One uses a financial instrument when one does any of the following:

(1) Makes or executes such instrument or an endorsement thereon, or alters such instrument so as to...

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