Jones v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia

JOEL R. JONES
OPINION BY
v. Record No. 0009-01-4 JUDGE ROBERT P. FRANK
MAY 14, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge

Daniel T. Lopez, Senior Assistant Public Defender
(Office of the Public Defender, on brief), for
appellant.

Susan M. Harris, Assistant Attorney General
(Randolph A. Beales, Attorney General,
on brief), for appellee.

Joel R. Jones (appellant) was convicted in a jury trial of

three counts of embezzlement in violation of Code § 18.2-111.

On appeal, he contends the trial court erred (1) in admitting

hearsay evidence under the "business record exception" because

the entry was not made contemporaneously with the event; and

(2) in admitting this same material because it was "unduly

prejudicial." For the reasons stated, we affirm the judgment of

the trial court.

I. BACKGROUND

Appellant worked as a delivery man for Airborne Express.

As part of his duties, appellant was responsible for the

delivery of three separate shipments of American Express
traveler's checks that were diverted and did not reach their

intended destination.

At trial, the Commonwealth, in order to trace the

traveler's checks from their point of origin through the

shipping process, called Pat Crosetti, Director of the American

Express Traveler's Check Distribution Center in Piscataway, New

Jersey. She had worked in that capacity for eight years and had

been with American Express for a total of twenty-five years.

Crosetti supervised a staff of about fifty employees who

"process[], pick[], and pack[] orders for shipments of

traveler's checks that go to banks and credit unions." Her

staff retrieves the checks from the vault, fills the order,

packages the checks into shipping cartons, and then "hand[s]

them off to Airborne [Express], who distributes them the last

leg of the journey to the physical locations."

The "order-taking unit," in Salt Lake City, is separate

from Crosetti's "order filling" unit. The order-taking unit

generates a "trust receipt," which functions as the "packaging

inventory." The trust receipt is assigned a unique number. The

trust receipts indicate the requested denominations of the

checks, the quantity of each denomination, and the specific

series of check numbers assigned to each denomination. Those

specific check numbers are not used again for any other order.

The trust receipt is sent electronically overnight to the

New Jersey facility and is downloaded and printed for

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processing. The printed trust receipt arrives at the assembly

line that same morning. The order is filled using a method

called "pick-and-pass," in which five people work together to

fill the order. With the trust receipt in hand, the first

picker stands alongside a long table and picks the $20 checks as

required by the trust receipt. The first picker then passes the

trust receipt to the next picker who selects $50 checks and then

passes the checks and the trust receipt to a third picker, who

is responsible for another denomination. A picker's "job is to

look at the [] checks" and to "marry them up with the order."

At the end of the line stands a "verifier." The verifier

will "physically pick up the checks and then they would look at

the packing slip, the trust receipt, and verify that it is, in

fact, accurate." The verifier then puts the checks into brown

boxes provided by Airborne Express. The brown boxes are placed

in a "big blue bag," marked with the ultimate destination.

The bag "stays open until we're done with the work for the

day, and then we seal up each blue bag." Each bag is sealed

with a "red bag tie" that can only be opened with a wire cutter.

Two copies of the trust receipt are placed inside the Airborne

boxes with the traveler's checks, one "for the customer to keep

for their records, and the second one [] to sign and return [to]

American Express."

Airborne assigns each American Express order a specific

"air bill number." Each blue bag also has an air bill number of

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its own. The air bill number is not printed on the trust

receipt. Like the trust receipt number, this air bill number is

a "unique number." At the end of the day, the "blue bags" are

loaded into the Airborne containers. Each container is then

sealed to avoid tampering or theft during transit.

Around 7:00 p.m. each night, Airborne dispatches a truck to

American Express. The blue bags, sealed with red tags and

packaged in Airborne containers, are loaded into the "Airborne

tractor trailer" that "go[es] in the belly of the plane." The

tractor trailer then is padlocked, and a seal is placed through

the padlock.

Three traveler's checks shipments, dated August 3, 1999,

September 1, 1999, and September 22, 1999, did not reach their

"final destination customer." Crosetti testified that American

Express had "accessed what we call the tracking on the package

to determine if someone signed," and "our research showed us

they had, in fact, signed." The August 3, 1999 package,

containing $3,350 in traveler's checks destined for the Fairfax

County Credit Union, was "signed by a name that was not an

employee with them" and was signed before the credit union's

mailroom opened.

The two September packages were destined for a branch of

Crestar Bank in Fairfax, Virginia. "T. Bell," who signed for

one of the September packages, was not an employee of the bank.

"D. Nester" signed for the other September package at the exact

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same time that Joyce Tinder signed for a different package.

Tinder, who was an employee of an unrelated business, testified

she never "sign[ed] for and receive[d] a package that was

addressed to Crestar Bank." The two September packages

contained checks worth $20,375 and $13,950, respectively.

Crosetti testified as to the contents of the three packages

from the information contained in the three relevant trust

receipts. Appellant objected to her testimony and to the

introduction of Commonwealth's exhibits 1A, 2A and 3A, 1 the trust

receipts for each of the missing shipments, on the ground that

the exhibits only show what was ordered, not what was shipped.

The objection was limited to the evidence's admissibility as

proof that the items were shipped. The trial court overruled

the objections.

A total of 1,171 of the missing American Express checks

were cashed, mostly in Baltimore, Maryland. All these check

numbers matched the numbers on the trust receipts for the three

packages.

Fairfax Police Detective John Gordon interviewed appellant.

Appellant admitted he was the driver for all three shipments

1
These exhibits were computer-generated copies of the trust
receipts. American Express ships both hard copies to the
customer. The customer retains one copy and mails the other
back to American Express, acknowledging receipt. However,
American Express never received the hard copies from these
shipments. Appellant does not question the use of these
computer-generated copies. See Lee v. Commonwealth, 28 Va. App.
571, 577, 507 S.E.2d 629, 632 (1998).

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from American Express, but "stated that he had made all those

deliveries as he was supposed to." He denied taking any of the

packages.

II. ANALYSIS

A. Business Record Exception 2

Appellant argues on appeal that the trust receipts were not

made contemporaneously with the events which they describe;

therefore, he contends the trial court should have sustained his

hearsay objection to the introduction of the trust receipts.

"The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion."

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988). "On factual issues relating to the admissibility of

evidence, the burden of persuasion is proof by a preponderance

of the evidence." Rabeiro v. Commonwealth, 10 Va. App. 61,

64-65, 389 S.E.2d 731, 733 (1990). The party seeking to have

hearsay declarations admitted "'must clearly show'" that the

evidence falls within an exception to the rule excluding

hearsay. Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386

(1984) (quoting Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298,

2
Our analysis assumes, without deciding, the trust receipts
were hearsay when offered to prove the traveler's checks were
shipped. The Commonwealth in brief and at oral argument
conceded that point.

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301 (Tex. 1962)). See also Atlantic Coast Realty Co. v.

Robertson's Ex'r, 135 Va. 247, 254, 116 S.E. 476, 478 (1923).

The trial court admitted the trust receipts under the

business records exception to the general rule excluding hearsay

evidence. Virginia has adopted this exception, which "allows

introduction 'into evidence of verified regular [business]

entries without requiring proof from the original observers or

record keepers.'" Sparks v. Commonwealth, 24 Va. App. 279, 282,

482 S.E.2d 69, 70 (1997) (quoting Neeley v. Johnson, 215 Va.

565, 571, 211 S.E.2d 100, 106 (1975)).

The party seeking to introduce evidence under this

exception must lay a foundation before such evidence can be

admitted. As explained in Sparks:

If the records are kept in the normal course
of business and are relied upon in the
transaction of the business by the entity
for which they are kept, then they have a
certain guarantee of trustworthiness and
reliability. "Automatic" Sprinkler Corp. v.
Coley & Petersen, Inc., 219 Va. 781, 792,
250 S.E.2d 765, 773 (1979); Hooker v.
Commonwealth, 14 Va. App. 454, 456, 418
S.E.2d 343, 344 (1992). "Admission of such
evidence is conditioned, therefore, on proof
that the document comes from the proper
custodian and that it is a record kept in
the ordinary course of business made
contemporaneously with the event by persons
having the duty to keep a true record."
"Automatic" Sprinkler, 219 Va. at 793, 250
S.E.2d at 773; see also Kettler & Scott,
Inc. v. Earth Tech. Cos., 248 Va. 450, 457,
449 S.E.2d 782, 786 (1994).

Id. at 282, 482 S.E.2d at 70-71.

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 Appellant does not contest that American Express relied

upon the trust receipts in the normal course of business nor

does appellant contest Ms. Crosetti's status to authenticate the

records. Appellant instead argues the documents were not

created contemporaneously with the packaging of the checks, but

instead were created before the packaging began. Therefore,

according to appellant, the trust receipts are not admissible

for the purpose of proving the checks were in the missing

packages.

To determine the scope of "contemporaneous" in a "shopbook

rule" context, we must look to the rationale for this exception.

Generally, "the principal rationale underlying the hearsay rule

[is the questionable] . . . reliability" of such evidence. King

v. Commonwealth, 18 Va. App. 57, 59, 441 S.E.2d 704, 705 (1994).

Therefore, any exception to this rule must be based on a finding

that the hearsay is reliable.

The trustworthiness or reliability of the
[business] records is guaranteed by the
regularity of their preparation and the fact
that the records are relied upon in the
transaction of business by the person or
entities for which they are kept. See
Laughlin, Business Entries and the Like, 46
Iowa L. Rev. 276, 276-77, 298 (1961).

"Automatic" Sprinkler, 219 Va. at 793, 250 S.E.2d at 773. See

also Lee v. Commonwealth, 28 Va. App. 571, 576, 507 S.E.2d 629,

632 (1998) ("Business records are admitted as an exception to

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the hearsay rule because they have a guarantee of

trustworthiness and reliability.").

"Contemporaneous" is defined as "existing or occurring

during the same time." Webster's Third New International

Dictionary 491 (1993). However, we do not look at

contemporaneousness in the abstract. As this Court has said in

a similar context, "[i]n each case, whether the exception

applies is dependent upon the particular circumstances." Jones

v. Commonwealth, 11 Va. App. 75, 87, 396 S.E.2d 844, 851 (1990)

(discussing "contemporaneity" as an element of the spontaneous

declaration exception).

In Simpson v. Commonwealth, 227 Va. 557, 566-67, 318 S.E.2d

386, 392 (1984), the Supreme Court approved the admissibility of

taxi meter recordings under the business records exception to

prove the amount of money a robbery/murder victim had in his

possession at the time of the crime. A bookkeeper testified "to

contemporaneous recordings of the meter readings . . . taken in

the ordinary course of business at the beginning and at the end

of the day of the crime." Id. The Supreme Court found these

entries were "contemporaneously made" and admissible as

circumstantial evidence of the amount of money in the victim's

possession at the time of the robbery. Id. at 567, 318 S.E.2d

at 392.

Contemporaneousness is an indicia of reliability. "The

contemporaneity requirement . . . avoids the problem of memory

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recall associated with the lapse of time, thus making

cross-examination and third party verification regarding the

event and declaration feasible." Jones, 11 Va. App. at 86-87,

396 S.E.2d at 850. See also Foley v. Commonwealth, 8 Va. App.

149, 161-62, 379 S.E.2d 915, 922 ("'"The requirement of

contemporaneousness, or near contemporaneousness, reduces the

chance of premeditated prevarication or loss of memory."'"

(quoting Booth v. State, 306 Md. 303, 323, 508 A.2d 976, 980

(1986) (quoting D. Binder, Hearsay Handbook 89 (2d ed. 1983,

Cum. Supp. 1985)))), aff'd on other grounds en banc, 9 Va. App.

175, 384 S.E.2d 813 (1989). Thus, while in Simpson the length

of time between the initial meter reading and the final reading

after the taxi was recovered by the police was unknown, the

trustworthiness of the data was clear.

Here, the trust receipts were employed to fill orders and

the "verifier" used the trust receipts to insure the orders were

accurately filled, packaged, and shipped. The receipts were

offered into evidence to prove the checks were in fact shipped.

The reliability and trustworthiness of the trust receipts were

insured by the fact that the employees who filled the orders and

the "verifier" who checked the shipment contemporaneously relied

upon the trust receipts. The fact that the trust receipts were

generated perhaps as much as a day prior to their use in the

filling and shipping of the orders does not diminish the

trustworthiness of the entries as proof of the shipments'

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contents. In the context of this case, it is irrelevant whether

the trust receipts accurately reflected the order, i.e., whether

the information recited in the trust receipts correctly listed

the orders from the financial institutions. The only issue is

whether the items shipped were in fact the items listed in the

trust receipts. The receipts were offered to prove that the

listed checks were packaged and shipped pursuant to those trust

receipts. 3 Given Crosetti's testimony, these records are

reliable evidence and were properly admitted by the trial court.

B. Undue Prejudice

Appellant also argues the trust receipts should have been

excluded as they were "unduly prejudicial." However, the cases

he cites refer to issues of relevance or sufficiency that are

not before this Court. 4

The trust receipts were relevant to this case. The

testimony proved these documents contained information about the

packaging and shipping of the stolen traveler's checks.

3
We do not suggest that a twenty-four-hour delay in the
creation of a business document always meets the contemporaneous
requirement. The facts of the individual case control. See
Simpson, 227 Va. at 567, 318 S.E.2d at 392.
4
Appellant may be arguing that the "error" was not harmless
when the trial court allowed the evidence to come in under the
business record exception. See generally Lavinder v.
Commonwealth, 12 Va. App. 1003, 407 S.E.2d 910 (1991) (en banc)
(discussing the harmless error test in the context of a trial
court's error in allowing the jury to consider inadmissible
evidence). As we find no error, a harmless error analysis is
not necessary here.

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Crosetti testified regarding the regular business practices

followed by American Express to prepare the checks for shipping

using the trust receipts and for verification of receipt of

those shipments. Lawrence Drayton testified regarding the

procedures used by Airborne Express to deliver the shipments.

Appellant told the police he "delivered" the shipments

containing the checks to the credit union and the bank.

However, other testimony proved those deliveries were not made.

The trust receipts were no more "unduly prejudicial" than

any evidence presented by the Commonwealth to prosecute a

defendant. See Lee, 28 Va. App. at 577-79, 507 S.E.2d at

632-33. The evidence was admissible under Virginia's rules of

evidence, and, therefore, the trial court did not unduly

prejudice appellant by allowing the jury to consider the trust

receipts.

For the reasons stated above, we affirm appellant's

convictions.

Affirmed.

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