Opinion
Court of Appeals No. A-11358 Trial Court No. 1JU-11-1332 CRNo. 5978
11-06-2013
RICHARD BAILEY, Appellant, v. CITY AND BOROUGH OF JUNEAU, Appellee.
Appearances: Tom Wagner, Juneau, for the Appellant. August Petropulos, Assistant City Attorney, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the District Court, First Judicial District, Juneau, Thomas G. Nave, Judge.
Appearances: Tom Wagner, Juneau, for the Appellant. August Petropulos, Assistant City Attorney, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
COATS, Senior Judge.
The City and Borough of Juneau charged Richard Bailey with retention of lost property for picking up a cell phone from a store counter and keeping it. During trial, the prosecution presented phone records to show that Bailey had used the phone during the five months he had it. Bailey appeals, arguing the admission of these phone records was error because they did not properly fall within the business records exception to the hearsay rule. Because the trial court did not err in admitting the phone records, we affirm Bailey's conviction.
City and Borough of Juneau Ordinance 42.15.050.
Facts and proceedings
A customer left a cell phone at the customer service desk of the Safeway store in Juneau on February 2, 2011. Bailey picked up the phone and took it. The State charged Bailey with retention of lost property under City and Borough of Juneau Ordinance 42.15.050.
City and Borough of Juneau Ordinance 42.15.050 provides:
(a) A person commits theft of lost or mislaid property if the person obtains property of another knowing that the property was lost, mislaid or delivered under a mistake as to the nature or amount of the property or the identity of the recipient and the person fails to take reasonable measures to restore the property to the owner with purpose to deprive the owner of the property.
(b) As used in this section "reasonable measures" includes notifying the identified owner or a peace officer.
(c) Retention of lost property is a:
(1) Class A misdemeanor if the value of the property retained is $50.00 or more.
(2) Class B misdemeanor if the value of the property retained is less than $50.00.
At trial, the prosecution sought to introduce phone records from GCI. Exhibit 4 showed texting records relating to the telephone Bailey took during the time he had the phone, and exhibit 5 showed cell phone calls relating to the phone during the same time. Pamela Halloran, a GCI employee who was second in command for Southeast Alaska, testified. She testified that as an area manager of GCI stores, she managed the area's retail and general operations. Halloran testified that the records "are generated straight out of our system with GCI. ... They're generated directly from our switches [i.e., computers], and they log the date of the call, the time of the call, the originating number, [and] the destination number." She said the phone records are created with no human intervention at the time the call is made. And she testified that GCI uses the records "primarily for billing purposes" and that it is a regular practice of GCI to make and keep such records. She said that the records are stored in the switches and when they are requested, as in this case, somebody prints the records out from the computer.
The prosecution sought to admit the exhibits as business records under Alaska Rule of Evidence 803(6). Bailey objected to admission of the exhibits, arguing that because Halloran was not a records custodian, a proper foundation had not been established to admit the phone records under the business records exception. District Court Judge Thomas G. Nave ruled that the business records exception to the hearsay rule applied and admitted both exhibits over Bailey's objection.
The jury ultimately convicted Bailey of the retention of lost property charge, and Bailey appeals.
Discussion
Bailey raises two arguments concerning the admission of the texting and phone call exhibits as business records under Alaska Rule of Evidence 803(6). First, he argues the trial court erred in admitting these exhibits because GCI's electronic data is not the same format as the printed exhibits. Second, Bailey argues that Halloran's testimony was insufficient to authenticate these exhibits because she was not a records custodian or person who created the exhibits.
Although the parties do not discuss this issue, several courts have addressed the type of records at issue in this case — that is, cell phone data that is automatically recorded by a computer with no human intervention — and have concluded that this type of evidence is not hearsay. These courts reason that where data is generated solely by computer and is not a statement dependent on the observations and reporting of a human declarant, the evidence is not hearsay. We do not reach this issue because the parties have not briefed it and, as we are about to explain, Bailey's objections to the evidence under Rule 803(6) have no merit.
See Godoy v. Commonwealth, 742 S.E.2d 407, 411 (Va. App. 2013); see also 2 George E. Dix et al., McCormick on Evidence, § 294, at 459-60 (Kenneth S. Broun, ed., 7th ed. 2013) (citing State v. Kandutsch, 799 N.W.2d 865, 877-79 (Wis. 2011) (ruling that reports from a daily electronic monitoring device were not hearsay, because they were created by a computerized or mechanical process); also citing People v. Holowko, 486 N.E.2d 877, 879 (Ill. 1985); State v. Armstead, 432 So.2d 837, 840 (La. 1983)).
The printed records
On appeal, Bailey argues the trial court erred in admitting the two exhibits because GCI does not store the data in the same format as the printed exhibits. GCI electronically stores the data on switches — computers — whereas exhibits 4 and 5 are hard copy printouts of the data. Bailey does not argue that the underlying data is not a business record. And he does not argue that the data reflected in the print-out is an inaccurate representation of the data stored electronically in the switches. Rather, Bailey argues that the printed format in which the data was presented in court is not the same as the electronic format in which the data was originally created and stored in the regular course of business.
Alaska Evidence Rule 1001(3) disposes of Bailey's argument. Under this rule, "[i]f data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect that data accurately is an original." Therefore, although the format of the printed exhibits is not the same format in which the texting and phone call data was originally recorded in the company's switches, the printouts are "original" business records.
We note that other jurisdictions have held that the downloading and printing of computer data that was recorded in the regular course of business does not change the nature of the data or make it untrustworthy. McCormick on Evidence supports treating downloaded computer data as business records, even when the data is downloaded and printed out well after the fact (and presumably in preparation for litigation), as long as the data was originally recorded in a manner that meets the foundational requirements of the business records exception, and as long as the process of extracting, sorting, and/or printing the data is reliable. Although these authorities analyze the admissibility of the printed records under different theories, they ultimately reach the same conclusion we do: the records are admissible.
See People v. Zavala, 156 Cal. Rptr. 3d 841, 845-46 (Cal. App. 2013) (citing United States v. Nixon, 694 F.3d 623, 633-35 (6th Cir. 2012); U'Haul Intern., Inc. v. Lumbermen's Mutual Casualty Co., 576 F.3d 1040, 1043 (9th Cir. 2009); United States v. Fujii, 301 F.3d 535, 539 (7th Cir. 2002); Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir. 1994); Dutch v. United States, 997 A.2d 685, 689-90 (D.C. Cir. 2010); Commonwealth of Penn. v. McEnany, 732 A.2d 1263, 1273 & n.3 (Pa. Super. 1999)).
McCormick on Evidence, § 294, at 455-460.
In Bailey's case, the printed exhibits were admissible as original records under Evidence Rule 1001(3).
Authentication
Bailey argues that Halloran's testimony was insufficient to authenticate the exhibits because she was not the person who printed out the data. Although Bailey objects to the admission of the records because Halloran did not personally print the exhibits, he does not challenge her qualifications as an "other qualified witness" under the business records rule.
Evidence Rule 803(6) allows litigants to introduce business records without having to present testimony from each person who made entries in the records or who personally observed the events or condition described in the records. Business records are generally considered reliable because they are created, and relied on, in the course of regular business. Evidence Rule 803(6) requires authentication of the business records through the testimony of a records custodian "or other qualified witness."
See Loncar v. Gray, 28 P.3d 928, 934 (Alaska 2001) (holding that medical records containing the observations and diagnoses of physicians are admissible under the business records exception even though the records are introduced through someone else's testimony); Cf. Rockwell v. State, 176 P.3d 14, 25 (Alaska App. 2008) (holding that a witness's passport, and the stamps placed in the passport by foreign government officials (when the witness entered the foreign country), fell within the public records exception to the hearsay rule, Evidence Rule 803(8)).
Halloran testified she is "second in command for [GCI in] Southeast Alaska," and that she manages "primarily the [company's] retail operations, but [its] general operations as well." Halloran testified that the exhibits in question contained phone records that GCI relies on in its business — primarily, for billing purposes — and that these records are very important to the business.
During her testimony about the exhibits, Halloran expressed a familiarity with both the records and the process for maintaining them. No one disputed that the records were printed out by a GCI employee and that they are regularly relied on by GCI in its regular course of business.
We reject Bailey's argument that the foundation for these records had to be laid by the person who personally printed the documents. Halloran's testimony was thus sufficient to lay the foundation for admission of the phone records.
Conclusion
The judgment of the district court is AFFIRMED.