COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
JOHN PERCY LEE, SR.
OPINION BY
v. Record No. 2432-97-3 JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Wayne D. Inge for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
John Percy Lee, Sr. appeals his conviction by a jury of two
counts of forgery, two counts of uttering and two counts of
misdemeanor false pretenses. He argues that the trial court
erred when it admitted the testimony of an employee of the
company that issued the forged checks. The only issue is whether
the employee, a fraud investigator, had sufficient personal
knowledge of the company's business records and procedures to be
able to testify that the checks were not authorized. We conclude
that the testimony was proper, and we affirm the convictions.
On appeal, we view the evidence in the light most favorable
to the Commonwealth and grant to it all reasonable inferences
fairly deducible therefrom. See Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Com Data is a company that provides trucking companies with
a secure method to pay their drivers' expenses. A trucking
company establishes an account with Com Data and receives special
blank checks and coded numbers, known as the express codes. The
trucking company distributes checks with express codes on them to
a driver. When a driver needs to pay for something while on the
road, he completes the check for the amount of money needed and
negotiates it to the provider. The provider calls Com Data to
obtain confirmation that the check will be honored. The provider
gives the Com Data operator the express code number from the
check. The operator enters the express code into the company's
computer, and if the computer recognizes it as a valid number,
the computer randomly generates another number, known as the
authorization number. The computer does not generate an
authorization number unless it receives a valid express code, and
the authorization number generated is unique to the particular
transaction. The Com Data operator gives the authorization
number to the provider who enters it on the face of the check.
The provider then negotiates the check like any other.
The check passes through normal bank clearing channels until
it gets to Com Data's bank. Before honoring the check, the bank
sends it to Bank-Recon, a division of Com Data. Bank-Recon gives
final approval to the bank for payment after making computer
images of the checks and entering data from them into the
computer system. Bank-Recon maintains these computer records
which list all checks that have been authorized and the codes
associated with the checks.
The evidence shows that the defendant negotiated the checks
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in question at two convenience stores. The cashiers, who cashed
the checks, testified that the defendant completed the checks,
made telephone calls to obtain authorization numbers, entered
them on the checks, and negotiated the checks receiving value for
them. All entries on the checks were written by the defendant.
One cashier said that the "com checks" were unusual at that
store, and the other cashier was unfamiliar with them.
The Commonwealth called Trenton Bateman as a witness to
explain the Com Data records and procedure for approving checks.
Bateman was a fraud investigator with Com Data, having worked
for the company for two years. He began as a telephone operator
who received calls from providers requesting approval to cash
checks, and he issued authorization numbers to them. He became a
supervisor of other telephone operators and then a fraud
investigator. As part of his investigative duties he had access
to all of Com Data's computer records including those for which
Bank-Recon was custodian. Bateman investigated the two checks
cashed by the defendant.
Bateman testified that the express codes on both checks were
invalid because they had letters in them and valid express codes
contained only numbers. Authorization numbers were never issued
by Com Data's computers without valid express codes. Further,
according to Com Data's records the authorization numbers on the
checks had not been issued by Com Data.
Bateman's investigation mainly consisted of accessing the
company's computer records. Bateman explained that he entered
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the express code that had been written on the face of each
questioned check. He further explained that when a proper
express code was entered into the company's computer, the
computer would display the number of registered checks associated
with that code. However, when Bateman entered the express codes
from the checks tendered by the defendant, the computer revealed
"invalid express code." He testified that response indicated to
him that the check had not been authorized by Com Data.
The defendant's argument on appeal is that the trial court
erred in admitting Bateman's testimony that Com Data had not
authorized the two checks the defendant cashed. The defendant
argues this testimony was inadmissible because Bateman was not
qualified to testify about company records and procedures. He
argues that Bateman's testimony was unreliable because he did not
have sufficient personal knowledge to testify that the checks
were not authorized. We disagree.
Business records are admitted as an exception to the
hearsay rule because they have a guarantee of trustworthiness and
reliability. The business must keep the records in the normal
course of its business and make them contemporaneously with the
event that generates them. The people who prepare them and for
whom they are prepared must rely upon the records in the
transaction of the business. See Automatic Sprinkler Corp. v.
Coley & Petersen, Inc., 219 Va. 781, 793, 250 S.E.2d 765, 773
(1979) (payroll records admissible because prepared and relied
upon in the regular course of business); Frye v. Commonwealth,
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231 Va. 370, 387, 345 S.E.2d 267, 279-80 (1986); Kettler & Scott,
Inc. v. Earth Tech. Cos., Inc., 248 Va. 450, 457, 449 S.E.2d 782,
785 (1994).
Bateman explained how Com Data compiled its computer records
and how it generated records of the authorization codes
contemporaneously with the transaction. He explained that the
company compiled the computer records as part of Com Data's
routine procedure to authorize checks and it relied on that data
in the regular course of its business. Bateman had access to all
Com Data's records as its fraud investigator, and he could
retrieve the data as necessary for his investigations. These
computer records qualify as business records.
The next issue is whether Bateman was a proper person to
testify about Com Data's business records and to authenticate
them. These records are admissible under the business records
exception even though Bateman did not make the computer entries
nor was he the custodian of Com Data's company records. Although
Bateman was not a custodian of the records, he was an employee
who had knowledge of how Com Data's records were compiled and
maintained, and he had access to those records as an integral
part of his responsibilities as a fraud investigator for his
employer.
In Sparks v. Commonwealth, 24 Va. App. 279, 482 S.E.2d 69
(1997), bank documents were properly authenticated by a bank
vice-president even though she was not the custodian or
supervisor of the custodian of the records. The trial court
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admitted the documents after determining the vice-president
possessed knowledge of and had access to the records. See id. at
283-84, 482 S.E.2d at 71. This case is controlled by Sparks.
Bateman possessed knowledge of the records and had access to
them. Therefore, he could properly authenticate them. The
records were admissible as authenticated business records.
Bateman testified about the data contained in Com Data's
records that he retrieved from the company's computer records.
Bateman did not actually authenticate and present into evidence a
document generated by the computer. He testified from the
business record generated by the computer and displayed on the
terminal which he observed. We are not troubled by the fact that
Bateman's testimony and not a printed document was admitted. See
Ashley v. Commonwealth, 220 Va. 705, 708, 261 S.E.2d 323, 325
(1980) (security director testified from a report he compiled
which constituted admissible business record); Simpson v.
Commonwealth, 227 Va. 557, 566-67, 318 S.E.2d 386, 392 (1984);
Hooker v. Commonwealth, 14 Va. App. 454, 456 n.1, 418 S.E.2d 343,
344-45 n.1 (1992). The computer decodes electronic records,
converts them into a format understood by users and either prints
them or displays them on a terminal. A person who can verify
that the business records are authentic can present the evidence
by testifying about what he saw displayed or by presenting a
printed copy of the display. Either form is admissible as a
business records exception to the hearsay rule.
Next, the defendant argues that the court erred when it
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permitted Bateman to testify that the checks were not authorized.
He asserts the testimony was an opinion on the ultimate issue in
the case. Bateman testified that if a valid express code was
entered into the computer, the computer would reveal the numbers
of the checks registered under that code. If an invalid express
code was placed on a check, when the express code was entered
into the computer the computer would indicate "invalid express
code." Bateman testified that when he entered into the computer
the express codes that had been placed on the defendant's checks,
the response was that the code was invalid. He testified that
this response indicated the checks were not authorized by
Com Data. The fact that the express code was not authorized by
Com Data was not an opinion on the ultimate issue in the case.
It was a statement of fact explaining the company's computer
business records and how it authorized checks. The ultimate
issue in this case was whether the checks were forged and whether
the defendant forged the documents. The fact that the invalid
numbers were placed on the checks is a fact that tends to prove
the checks were forged.
Finally, the defendant challenges the sufficiency of the
evidence. He asserts that Bateman lacked sufficient knowledge to
prove beyond a reasonable doubt that Com Data did not authorize
the checks. He contends that hypotheses exist other than that
the defendant forged the checks by providing invalid express and
authorization codes. He maintains that the evidence equally
supports the hypothesis that the checks were authorized and that
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the computer failed to accurately record or report the numbers or
that the providers failed to accurately record either the express
or authorization codes.
Bateman's testimony was sufficient to establish the
foundation for admitting the business records of the company.
The evidence explained that the defendant was the person who
obtained the express code. Bateman proved that an express code
contains no letters and always had more than ten digits. The
evidence proved that the codes placed on these checks contained
letters, and the providers testified that the defendant placed
both the express and authorization codes on the checks. See
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735,
736-37 (1985). Bateman testified from personal knowledge and
experience that the company never gave an authorization code
unless it first received a proper express code. The jury could
infer from his testimony that the regular business practice was
followed, that the express codes were false, and that the checks
were unauthorized by Com Data.
Furthermore, the two cashiers testified that defendant
claimed he obtained authorization for cashing the checks by
calling in the express codes. This information alone proved that
he had knowingly uttered the forged checks and fraudulently
obtained money for them. From this the jury could infer that he
had also forged them. See Fitzgerald v. Commonwealth, 227 Va.
171, 174, 313 S.E.2d 394, 395 (1984). The evidence is sufficient
to prove beyond a reasonable doubt that the defendant forged the
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checks.
For the foregoing reasons, we affirm the convictions.
Affirmed.
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