No. 88-391
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
CITY OF BILLINGS,
Plaintiff and Respondent,
-vs-
LESLIE LINDELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert L. Stephens, Jr., Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Dgrothy McCarter, Asst. Atty. General, Helena
%ssell Fagg, City Attorney, Billings, Montana
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Submitted on Briefs: Feb. 23, 1989
Decided:
_ .- March 31, 1989
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This case comes on appeal from a judgment in the
Thirteenth Judicial District, Yellowstone County, the
Honorable Russell Fillner presiding. The lower court found
the appellant, Leslie Lindell, guilty of the offense of
Speeding and Driving While License Suspended. We affirm.
On May 21, 1987, Billings police officers stopped
appellant's vehicle for exceeding the posted speed limit.
Officer John Carpani requested that appellant produce his
driver's license. Appellant could not do so, but assured the
officer he indeed possessed a license. Officer Carpani
radioed for a license check through the State bureau.
However, because the system was not operating correctly,
Officer Carpani received a "negative" response. Appellant
was issued a speeding citation and released. Later, the
dispatcher reported that appellant's license was suspended.
The officers proceeded to appellant's residence where they
issued a second citation for driving while license suspended.
At trial, the City of Billings offered into evidence a
certified abstract of driving history and a certified copy of
a letter notifying appellant that his driver's license
suspension had been extended through September 4, 1987. The
extended suspension was due to a January 6, 1987 conviction
for Driving While License Suspended. Appellant challenged
the exhibits' admissibility, contending the documents
violated hearsav prohibitions and the best evidence rule.
The trial judge admitted the evidence over appellant's
objections, and took the case under advisement pending
receipt of briefs. Thereafter, appellant failed to file a
brief in support of his arguments. On May 31, 1988, deeming
the matter submitted pursuant to the evidence, the District
Court found Leslie Lindell guilty of the offenses of Speeding
and Driving While License Suspended.
Appellant presents two issues for our review:
1. Were the certified abstract of driving history and
the certified copy of the suspension notification
letter properly admitted as evidence?
2. Was the evidence presented sufficient to sustain a
conviction?
The Division of Motor Vehicles has the duty of
maintaining records of license convictions. Section
61-11-102 (2), MCA; Lancaster v. Department of Justice (Mont.
1985), 706 P.2d 126, 42 St.Rep. 1425. However, we recognize
the inherent difficulty in requiring the custodian to be
present in court each time the records become necessary in a
trial. To meet practical concerns, the Legislature developed
a number of instances in which authenticity is taken as
established for purposes of admissibility without extrinsic
evidence. Section 61-11-102 (6), MCA, is one such instance:
A reproduction of the information placed
on a computer storage devise is an
original of the record for all purposes
and is admissible - evidence without
in
further foundation in all courts or
administrative asencies when the
following certification by a custodian of
the record appears on each page:
The individual named below, being a
duly designated custodian of the driver
records of the department of justice,
motor vehicle division, certifies this
document as a true reproduction, in
accordance with 61-11-102(6), of the
information contained in a computer
storage device of the department of
justice, motor vehicle division.
Signed :
(Print Full Name)
(Emphasis added)
The statute is abundantly clear; once properly
certified, the exhibit is admissible without additional
foundation. In the instant case, the abstract of driving was
certified by a duly appointed custodian of the records. We
need not examine this point any further.
The copy of the suspension notification letter, dated
February 18, 1987, likewise included a certificate from the
custodian of the files and records of the motor vehicle
division, certifying that the information was a true and
correct copy of the original. As a public document kept in
accordance with the statutory mandate, the letter falls
within the class of self-authenticating documents. Rule
902 (4), M.R.Evid. In addition, contents of an official
document authorized to be filed may be proven by a copy
" [clertified as correct in accordance with Rule 902 . . ."
and meet the requirements of the best evidence rule. Rule
1005, M.R.Evid. Finally, the exhibit falls within Rule
803(8), the public document exception to the hearsay rule.
We find the letter was properly admitted by the District
Court.
Appellant asserts that he did not receive the letter
extending his suspension period and in fact, believed his
driving privileges had been fully restored. However, we
presume that "[a] letter duly directed and mailed was
received in the regular course of the mail." Section
26-1-602 (24), MCA. Nor does positive testimony by the
addressee of nonreceipt nullify the presumption. General
Mills, Inc. v. Zerbe Bros., Inc. (1983), 207 Mont. 19, 672
P.2d 1109. Instead, the determination of nonreceipt is left
to the factfinder to give weight to the presumption he
believes it is entitled. In the instant case, appellant
presented no additional evidence, apart from his own
testimony, to prove the letter was not received. On the
other hand, the letter contained a certificate of mailing,
dated and signed by an officer of the department, and sent to
appellant's home address, the same address testified to as
correct during the trial.
Finally, appellant contends the evidence was
insufficient to sustain the conviction. His argument, in
large part, relies upon contentions already disposed of
earlier in our opinion.
Our review of the record, in the light most favorable
to the City, indicates there exists substantial evidence upon
which a reasonable mind could find appellant guilty. State
v. Wilson (Mont. 1981), 631 P.2d 1273, 38 St.Rep. 1040.
Specifically, the abstract of driving history, letter of
suspension, and Officer Carpani's testimony collectively
constitute substantial evidence on which to base the verdict.
Affirmed.
We concur: A
Justices