Troy Jacobs v. commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia
TROY JACOBS
MEMORANDUM OPINION * BY
v. Record No. 0874-02-4 JUDGE RUDOLPH BUMGARDNER, III
JULY 8, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Mark S. Thrash for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
A jury convicted Troy Jacobs of three counts of
embezzlement. He maintains a properly authenticated record of
the Department of Motor Vehicles was inadmissible hearsay.
Concluding the trial court properly admitted the record, we
affirm the convictions.
The defendant was a restaurant manager with the
responsibility of making bank deposits. The embezzlement
charges arose from his failure to make three deposits though he
made entries to company records that indicated he had personally
made the deposits. He recorded that he had made a deposit on
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
May 13, 2000, but the bank record did not reflect a deposit that
day.
The bank teller, who knew the defendant, testified that he
had not made any deposit on May 13, 2000. The defendant
cross-examined her using a photograph taken by the bank's
surveillance camera. It showed a man transacting business at
the teller's window that morning. At the preliminary hearing,
the teller had identified the exhibit as a photograph of the
defendant. She conceded her previous statement but recanted
that testimony. The teller explained her reasons for concluding
she had been wrong and for testifying at trial that the man in
the photograph was not the defendant.
A bank investigator retrieved the photograph from the
surveillance tapes covering the period when the defendant
claimed to have made the deposit. The investigator matched the
surveillance photograph to the bank's electronic record of a
transaction made by Michael Patrick Walsh. The photograph
reflected a check cashing transaction. The investigator
presented the bank imaging record of a check cashed by Walsh at
9:56:05 a.m., May 13, 2000. The image of the check showed the
check number, and the date and time of the transaction and its
validation, all of which corresponded with the bank's electronic
journal.
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The Commonwealth offered a record from the Department of
Motor Vehicles. It consisted of a photograph of a man; the
name, "Walsh, Michael, Patrick"; a signature, "M. Walsh"; a
customer number, "T69613398"; and a date of issuance. The
Commissioner of the Department of Motor Vehicles certified that
the single page facsimile transmission was an accurate depiction
of the digital image for the "customer" with that number as
maintained by the department.
The defendant conceded the DMV record was properly
authenticated under Code § 46.2-215, but maintained it was
inadmissible hearsay. Assuming the record constituted hearsay
in this case, it was properly admissible under the public
records exception to the hearsay rule. Ingram v. Commonwealth,
1 Va. App. 335, 338, 338 S.E.2d 657, 658 (1986). See A Guide to
Evidence in Virginia Rule 803 (8), 93, 100 (2003).
In Smoot v. Commonwealth, 18 Va. App. 562, 445 S.E.2d 688(1994), the defendant argued that a DMV record showing his
habitual offender adjudication was inadmissible because the
Commissioner did not have personal knowledge of his prior
adjudication. 1 This Court rejected that argument. Where the
1
"In today's complex world, most governmental officials do
not literally have personal knowledge of the facts being
recorded. If literally applied, this rule would make almost all
public records inadmissible." Charles E. Friend, The Law of
Evidence in Virginia § 18-29, at 721 (5th ed. 1999).
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Commissioner, who is responsible for maintaining the records,
receives data entered by another official, whose duty to record
is imposed by law, the "personal knowledge" requirement is
satisfied, and the record is admissible. Id. at 565, 338 S.E.2d
at 690. The entries made by public officials are admissible
under the official records exception without the testimony of
the recorder. Hall v. Commonwealth, 15 Va. App. 170, 175, 421
S.E.2d 887, 891 (1992). The official, who issued the license
and entered the data into the department's records, required
personal knowledge of the facts; the Commissioner did not.
In this case, the public record contained a picture, a
signature, and the number assigned by the Department of Motor
Vehicles to that picture and signature. The recorded image
resembled that in the surveillance photograph. The number and
signature matched the driver's license number and the
endorsement on the back of the check processed by the bank on
May 13, 2000. The record was admissible as an exception to the
hearsay rule, and the trial court properly admitted it.
Accordingly, we affirm the defendant's convictions.
Affirmed.
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