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holding that while the witness “did not program the computers or enter the data into the computer himself, he demonstrated his knowledge of the computer system, the business records and the method by which the data was gathered and the records created .... [his] testimony provided a sufficient foundation for the admission of the computer printouts as business records”
Summary of this case from State v. HamlinOpinion
No. COA11–1141.
2012-05-1
STATE of North Carolina v. Timothy W. HALL.
Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick–Wilson, for the State. W. Michael Spivey, for defendant-appellant.
Appeal by defendant from judgment entered 8 October 2010 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 24 April 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick–Wilson, for the State. W. Michael Spivey, for defendant-appellant.
CALABRIA, Judge.
Defendant Timothy W. Hall (“defendant”) appeals from the judgment entered upon a jury verdict finding him guilty of common law robbery. We find no error.
On 13 February 2010, just before midnight, a man wearing a “Dick Tracy type hat” robbed a gas station on Glenwood Avenue in Raleigh. Investigators determined that a finger print taken from the gas station's customer service counter matched defendant's fingerprints stored in a local database. On 15 February 2010, detectives showed the gas station clerk a photo lineup and the clerk identified defendant as the robber.
Later that day, a detective assigned to investigate the robbery talked to defendant. Defendant told the detective that he stopped at the Glenwood Avenue gas station on 13 February 2010 at about 7:00 p.m., but that he proceeded to a “gambling place” behind the gas station and stayed there from 7:30 to 8:30 p.m. Defendant claimed that after he left the Glenwood Avenue gambling establishment, he went to another gambling establishment on Capitol Boulevard, where he stayed until 7:00 a.m. on 14 February 2010.
The store is a sweepstakes center, where purchased internet time comes with a “free” allotment of sweepstakes points that can be used to play games for points that may ultimately be redeemed for cash.
The detective also spoke to Jay Lively (“Lively”), the Assistant Manager for H & L Business Centers. Lively confirmed that defendant was a frequent customer and that he often wore a fedora hat. Lively provided police with surveillance video and computer records of the night of 13 February 2010. Defendant's account history showed that he last used the computer at the Glenwood Avenue establishment on 13 February 2010 at 10:36 p.m., and that he accessed the computers at the Capital Boulevard establishment on 14 February 2010 between 12:30 and 4:00 a.m. The computer records were admitted into evidence over defendant's objection.
The jury returned a verdict finding defendant guilty of common law robbery. The trial court sentenced defendant to a term of a minimum of 24 months to a maximum of 29 months in the North Carolina Department of Correction. Defendant appeals.
Defendant argues that the trial court erred by admitting the computer records into evidence. Specifically, defendant contends that the State failed to establish a proper foundation to support admission of the documents through the business records exception to the Hearsay Rule. We disagree.
The North Carolina Rules of Evidence define admissible “business records” as:
A memorandum, report, record, or data compilation, in any form, of acts ... made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
N.C. Gen.Stat. § 8C–1, Rule 803(6) (2011).
As to printouts of business records stored on computers, our Supreme Court has set forth the requirements for authentication of relevant and material “business records stored on electronic computing equipment” as a prerequisite for their admission into evidence:
(1) the computerized entries were made in the regular course of business,
(2) at or near the time of the transaction involved, and
(3) a proper foundation for such evidence is laid by testimony of a witness who is familiar with the computerized records and the methods under which they were made so as to satisfy the court that the methods, the sources of information, and the time of preparation render such evidence trustworthy. Computer printout evidence may be refuted to the same extent as business records made in books of account.
State v. Springer, 283 N.C. 627, 636, 197 S.E.2d 530, 536 (1973). “The authenticity of [business] records may, however, be established by circumstantial evidence.... There is no requirement that the records be authenticated by the person who made them.” State v. Wilson, 313 N.C. 516, 533, 330 S.E.2d 450, 462 (1985) (citations omitted). In addition, the business records exception contemplates the “impossibility of producing in court all the persons who observed, reported and recorded each individual transaction.” Springer, 283 N.C. at 634, 197 S.E.2d at 535. See In re West, 60 N.C.App. 388, 391–92, 299 S.E.2d 245, 247 (1983) (where an employee identified the records, was familiar with the respondent's accounts and testified about the manner in which the business obtained the information the Court held that a proper foundation had been laid for purposes of the business exception rule).
In the instant case, defendant is not claiming that the State failed to satisfy the first two requirements for authentication of business records stored on computers. On appeal, defendant only argues that the State failed to lay a proper foundation for admissibility of the records. Defendant contends that in order to introduce the computer printouts into evidence, the State was required to produce testimony from “someone with knowledge about whether the machine itself was programmed, maintained, and operated in a manner that produced the intended result.” Defendant includes Lively's testimony but cites no case law in support of the proposition that Lively was not sufficiently familiar with the computers in the store to know whether the time records they created were accurate.
The records were introduced by Lively, who in addition to his position as Assistant Manager, was also the liaison to the Regional Manager. In that role, he managed the daily affairs of H & L's Capital Boulevard store and had done so since the store opened almost two years earlier. Lively testified about the method the system uses to obtain information from the patrons and how the information is stored on the system. He stated that the system generates an account number for each user and that entries documenting account activity are made in the regular course of business as the account holder accesses the computers. The computer keeps a sales history, identified by an individualized account number. Furthermore, he testified that employees have the capability to access account activity to process payments. Lively also testified that the records and system are maintained by the company's technical supervising unit. While Lively did not program the computers or enter the data into the computer himself, he demonstrated his knowledge of the computer system, the business records and the method by which the data was gathered and the records created.
Accordingly, we hold that Lively's testimony provided a sufficient foundation for the admission of the computer printouts as business records. Defendant has failed to demonstrate error in the trial court's ruling.
In addition, we note that, in the alternative, defendant also argued plain error on appeal. When an issue is not preserved by objection in a criminal case, it “nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R.App. P. 10(a)(4) (2011). In the instant case, defendant objected to the admission of the business records. Therefore, plain error review is inappropriate.
No error. Judges STROUD and BEASLEY concur.
Report per Rule 30(e).