Opinion
No. 61046-5-I.
February 2, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-04247-1, Cheryl B. Carey, J., entered December 12, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Timothy Moore appeals his convictions for one count of second degree trafficking in stolen property and one count of first degree criminal impersonation. He contends that the trial court violated his right to confrontation by admitting evidence of store computer records because it was "testimonial" and not subject to cross-examination. He further contends that the trial court erred by finding that his convictions did not involve the same criminal conduct. Because the computer records were not prepared in furtherance of a police investigation and were properly admitted under the business records exception to the hearsay rule, and because the two crimes involved different victims, we affirm.
FACTS
On November 24, 2006, Timothy Youngbluth was working at Half Price Books, a bookstore in the Capitol Hill neighborhood of Seattle that resells used books, records, CDs, and DVDs. That evening, two men who identified themselves as Millison Fambles and James Nash came into the store and sold some used record albums and DVDs. Youngbluth had dealt with Fambles and Nash previously, and Fambles had sold various items to the store in the past. Youngbluth handled the sale that evening and required the men to produce a valid government photo identification and sign a "buy slip" receipt, which they could redeem for cash. Nash signed the buy slips for the sold items.
Later that evening, Youngbluth received a call from a woman named Leah Maupin. Maupin told Youngbluth that she was calling local used record stores in an attempt to locate items that were stolen from her home during a recent burglary. When she asked Youngbluth if he had seen specific titles that were missing from her record and DVD collection, he recognized them as those he just bought from Nash and Fambles. He told Maupin that these very items had just been sold to the store earlier that evening and asked her to come to the store to identify the items she described. He also called the police and told his staff not to purchase any more items from Fambles and Nash and to issue notices trespassing them from the store if they returned. Maupin then arrived at the store and identified the items as the ones missing from her collection. A Seattle police officer also arrived at the store, spoke with Maupin, and took the items into evidence.
The next day, in an unrelated incident, Seattle police officer Katie Andre responded to a call to remove an unwanted guest from an address on Capitol Hill. When Andre arrived, she contacted a man who had two pieces of identification bearing the name of Millison Fambles. She eventually identified the man as Timothy Moore. Moore told the officer that the identifications belonged to his brother.
For the next few weeks between Thanksgiving and Christmas, Moore came to Half Price Books, alone and with others, to sell various used items. Store employee Megan Angus approached him on one occasion and asked him if his name was Millison Fambles. Moore denied that Fambles was his name. When Angus told him she bought DVDs from him in the past and he used the name Millison Fambles, he showed her paperwork with the name of Timothy Moore and denied using Fambles' name. Angus then called Youngbluth to the store, and he confirmed that Moore was the man they had known as Millison Fambles. Angus then gave Moore a trespass notice and told him he was trespassed from the store. Moore ultimately left the store, leaving behind a shopping cart containing several used records.
In January 2007, a Seattle police detective received Maupin's theft case for investigation. The detective ran the name "Millison Fambles" in the police computer system and found a report of a car prowl made by Cheryl Fambles in November 2006. The detective contacted her husband, Millison Fambles, who verified that his identification was taken in the car prowl. The detective also found another entry in the police computer system indicating that Millison Fambles' identification had been found on Timothy Moore in November 2006. The detective then prepared a photograph montage to show to Youngbluth, and Youngbluth identified Moore as the man who represented himself as Millison Fambles.
Youngbluth also provided police with some of the store's sales records. First, he gave police copies of four "buy slips," the receipts which are signed by the customer at the time of sale and redeemed for cash. These buy slips were for one transaction made on November 20, 2006, and three transactions made on November 24, 2006. Fambles `signature was on one buy slip receipt for a sale made on November 20 and on one buy slip receipt for a sale on November 24 made at 2:49 p.m. Nash's signature was on the other two buy slip receipts dated November 24 for sales made at 12:00 p.m. and 7:03 p.m.
Youngbluth also gave police "reprint buy slips," which were records of sales generated from the store's computer database. The database contains information that is entered whenever a customer sells items to the store, including the customer's name, phone number, and type and number of items sold. Employees can access this database by entering a customer's name into the computer system and retrieving every transaction associated with that name. Using the system, Youngbluth identified 11 transactions involving James Nash or Millison Fambles. He then generated "reprint buy slips" for each transaction, including slips for four transactions that occurred on November 24 at 12:00 p.m., 3:00 p.m., 7:07 p.m. and 7:32 p.m. These "reprint buy slips" listed the date and time of the transaction, the seller's name and identification, the number and type of item sold, and the sale price. The reprint buy slips for the November 24 transactions identified Nash as the seller for sales made at 12:00 p.m., 7:07 p.m., and 7:32 p.m. and identified Fambles as the seller for a sale made at 3:00 p.m.
The State charged Moore with two counts of first degree trafficking in stolen property and one count of first degree criminal impersonation. At trial, the State offered copies of the four signed buy slip receipts for the November 20 sale and three November 24 sales, and evidence of the eleven reprint buy slips, including those for the four November 24 transactions. Youngbluth identified all of these records and testified that he personally participated in the last two transactions on November 24 occurring between 7:00 p.m. and 7:30 p.m. He testified that Nash and Moore were together for both of these transactions even though only Nash signed for them. Moore objected to admission of both the buy slip receipts and the reprint buy slips, asserting a violation of his confrontation rights. The court overruled his objection and admitted the evidence as business records.
Nash was also charged with three counts of first degree trafficking in stolen property.
The jury acquitted Moore on one count of first degree trafficking in stolen property but found him guilty of one count of the lesser included offense of second degree trafficking in stolen property. The jury also found him guilty of one count of first degree criminal impersonation. The trial court sentenced him to 22 months' confinement.
DISCUSSION
I. Right to Confrontation
Moore first contends that the trial court erred by admitting evidence of the reprint buy slips generated by the store's computer database system. He argues that admission of these records violated his right to confrontation because they were testimonial in nature and he did not have an opportunity to cross-examine the creator of the buy slips for the transactions handled by employees other than Youngbluth. The State contends that the reprint buy slips were not testimonial because they were not prepared at the request of law enforcement and were properly admitted under the business record exception to the hearsay rule. We agree with the State.
While he also objected to admission of the buy slip receipts at trial, he does not appear to challenge this evidence on appeal.
The admission of hearsay evidence when the declarant is unavailable to testify raises Confrontation Clause concerns. Even if a hearsay exception applies, the Confrontation Clause requires the trial court to also determine whether the hearsay evidence is "`testimonial.`" If it is testimonial, the court may only admit the hearsay evidence if the defendant had a prior opportunity to cross-examine the declarant.
State v. Kirkpatrick, 160 Wn.2d 873, 881, 161 P.3d 990 (2007).
Id. at 882 (quoting Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)).
Id.
The United States Supreme Court has not provided a comprehensive definition of "`testimonial'" evidence. But in Crawford, the Court acknowledged that business records are by their nature not testimonial. Rather, the Court explained, testimonial statements are those that are "formal statement[s] to government officers" or produced with the involvement of government officers "with an eye toward trial."
Id.
Crawford v. Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Id. at 51, 56 n. 7.
Here, the trial court admitted evidence of the reprint buy slips, explaining,
As the title of the document is called reprint buy slips, my understanding is, based on the testimony, that the information is entered at the time of the transaction. These were simply copies of that information. I do find that they were business records, therefore, not hearsay.
Moore appears to concede that the State laid a proper foundation for admitting the reprint buy slips as business records. But he contends that they are "testimonial" because they were prepared at the request of law enforcement "with an eye toward trial," and without the opportunity to cross-examine the employee who created them. We disagree.
As the State argues and the trial court found, these records were not made at the request of law enforcement; they were made at the time of the sale in accordance with the store's business practice of maintaining records of sales. The only response to a law enforcement request was Youngbluth's retrieval of these records. In doing so, he did not prepare the content of the records at police request; rather he simply provided information that had already been entered into the system by employees following store procedure.
This is significantly different from the hearsay evidence held to be testimonial in State v. Hopkins, upon which Moore relies. In Hopkins, the hearsay statements were made by a nurse in a medical report she prepared about child abuse allegations, and the State offered the report without the nurse's testimony. But because the nurse knew that she was required to file a report with law enforcement if she suspected abuse or neglect, that the patient had been referred to her by the police, and that her report was relevant to an ongoing legal investigation, the court concluded that she "created her report under circumstances that would lead an objective witness to believe that the statements would be available for use at a later trial." Thus, the court held that the report was "the functional equivalent of testimony," and its admission without the opportunity to cross-examine the nurse violated the defendant's confrontation rights.The court further noted that the State failed to establish a foundation admitting the report as a business record, providing no testimony about how the reports were made or whether they were produced in the regular course of business.
134 Wn. App. 780, 142 P.3d 1104 (2006), review denied, 160 Wn.2d 1020 (2007).
Id. at 784.
Id. at 791.
Id.
Id. at 789.
The reprint buy slips admitted here were not made under similar circumstances that would lead an objective witness to believe that the statements would be available for use at a later trial. As discussed above, evidence of these sales records was not "testimonial" because they were not prepared with the involvement of law enforcement or in contemplation that they would be used in litigation. Thus, cross-examination of the employees who entered the information contained in the reprint buy slips was not required and Moore's confrontation rights were not violated.
Moore's argument that the reprint buy slips were not inherently reliable and cross-examination about their creation was required to advance "the truth-seeking function" of the Confrontation Clause is misdirected. In making this argument, he relies on language in State v. Kirkpatrick, which held that certified statements about the absence or existence of Department of Licensing (DOL) records were not testimonial, and discussed the "inherent reliability" of such statements. But by focusing on the reliability of these public records, the court was addressing the concern that the certifications were prepared to assist in prosecution — a concern not at issue here. Unlike the reprint buy slips, the certifications of DOL records were "literally prepared for purposes of litigation and . . . intended to be relied upon by the State." But the Kirkpatrick court concluded that because they contained only facts gathered in the regular course of a government official's duties according to a standardized procedure, not accusatory statements or testimony, they were not testimonial and did not raise Confrontation Clause concerns. Likewise here, the reprint buy slips contained only information entered by employees as part of their record keeping duties, not accusatory statements. Thus, Kirkpatrick actually supports admission of the reprint buy slip evidence.
160 Wn.2d 873, 886, 161 P.3d 990 (2007).
Id. at 885.
Id. at 887-88.
II. Same Criminal Conduct
Moore next argues that the trial court erred by finding that his convictions for trafficking in stolen property and criminal impersonation were not the same criminal conduct and including both crimes in the calculation of his offender score. He asserts that the trial court erred by concluding that the two crimes involved two different victims and therefore did not encompass the same criminal conduct.
For purposes of calculating a defendant's offender score under the Sentencing Reform Act (SRA), chapter 9.94A RCW, two or more current offenses are presumed to count separately unless they encompass the "same criminal conduct." Crimes encompass the same criminal conduct only if they (1) require the same objective criminal intent, (2) are committed at the same time and place, and (3) involve the same victim.Here, the trial court concluded that the crimes did not constitute the same criminal conduct because they did not involve the same victim. The trial court found that the victim of the trafficking charge was Maupin and that the victims of the impersonation charge were Fambles and the bookstore.
State v. Lopez, 142 Wn. App. 341, 351, 174 P.3d 1216 (2007), review denied, 164 Wn.2d 1012 (2008).
Moore argues that the trial court erred by finding that there were different victims because the only victim of both crimes was the bookstore. He contends that neither the owner of the stolen property nor Fambles was a victim because they were not harmed by the criminal acts. He asserts that Maupin was able to regain possession of all the items that were involved in the trafficking charge and that Fambles "was not actually harmed by the act of criminal impersonation in any way." Rather, he argues, Half Price Books was the only true "victim" of these crimes as that term is defined in RCW 9.94A.030.
"Victim" is defined under the SRA as "any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged." The crime of second degree trafficking in stolen property occurs when a person "recklessly traffics in stolen property."The statute defines "traffic" as: "to sell, transfer, distribute, dispense, or otherwise dispose of stolen property to another person, or to buy, receive, possess, or obtain control of stolen property, with intent to sell, transfer, distribute, dispense, or otherwise dispose of the property to another person." The crime of first degree criminal impersonation occurs when a person "[a]ssumes a false identity and does an act in his or assumed character with intent to defraud another or for any other unlawful purpose."
Former RCW 9.94A.030(49) (2006).
RCW9A.82.010(19).
The trial court correctly found that Maupin was the victim of the trafficking charge. It was her property that was the subject of the charge and because of Moore's act of criminal trafficking, she was deprived of its use. She had to canvass local stores to find her property and was unable to recover some of it until January 2007. The court also correctly found that Fambles was a victim of the impersonation charge. Not only did Moore contribute to Fambles' physical loss of his identification, but by using Fambles' identification to sell stolen items, Moore also subjected him to potential criminal charges. Additionally, Fambles was subjected to the psychological and emotional trauma of having his identity stolen. While Half Price Books may have also been a victim of both crimes, this does not change the fact that Fambles and Maupin were different victims for each of the crimes. This supports the court's finding that the crimes did not encompass the same criminal conduct.
We affirm.