Opinion
No. 106,745.
2012-08-10
STATE of Kansas, Appellee, v. Jerry D. BYNUM, Appellant.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Amy L. Aranda, assistant county attorney, Vernon E. Buck, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Amy L. Aranda, assistant county attorney, Vernon E. Buck, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jerry D. Bynum appeals his convictions of burglary of a dwelling, misdemeanor criminal damage to property, and misdemeanor theft. He was sentenced to a controlling term of 32 months' imprisonment. On appeal, he argues the district court committed reversible error because it denied his constitutional right to present a full and complete defense.
We affirm. Bynum attempted to admit a document under the business exception to the exclusionary rule but did not present any testimony to establish authenticity or the record keeping process of the business. Without necessary foundational evidence, the district court was correct in excluding the admission of the document.
On November 17, 2010, Emporia Police Officer David Holmes was dispatched to the residence of Keyona Carter for a report of a burglary. Carter advised the officer that an Acer Netbook, a Toshiba laptop computer, desktop computer tower, monitor, digital camera, and gold coins were taken from her home sometime between 11 a.m. and 9 p.m. that day. The officer noticed damage on the back door of the house which he believed to be the point of entry. He noted the damage was worth less than $1,000.
On November 18, Officer Robert Turner was dispatched to United Sales Pawn Shop for a supplemental report. Carter was at the pawn shop and told the officer that she had found her desktop computer at the shop. She identified the computer by its looks and said there should be seven gold coins inside the computer tower. The officer opened the tower and found the coins. Officer Turner obtained a sales slip from the shop which showed the computer had been pawned the previous day by Jerry Bynum.
On November 20, 2010, a search warrant was granted and executed on the same day for 826 E. 6th Avenue in Emporia, Jerry Bynum's address. A Toshiba laptop computer was found inside the storm cellar directly behind the residence. Bynum was charged with one count of burglary, one count of criminal damage to property, and one count of theft.
The matter proceeded to a jury trial that commenced in March 2011. The only issue Bynum raises on appeal is whether the district court erred in refusing to admit a 2–page document ostensibly prepared by an unidentified individual from the Medical Arts Clinic that was marked at trial for identification purposes as Exhibit K. The exhibit was offered during the direct testimony of Bynum's wife, Christine Bynum. Christine testified that on the second day of trial she called the clinic where her son Elijah was a patient in an effort to corroborate her testimony that Bynum was with her and their son at the doctor's office on the morning of November 17, 2010. Exhibit K is included in the record on appeal and appears to be an assessment of how Elijah was faring at age 1 week, 5 days. The document was captioned: “Pediatric Office Visit, November 17, 2010, Elijah Demarco Bynum, Well Child Visit.”
An ink stamp to the right of the caption states: “Medical Arts Clinic,” followed by the address of the clinic.
In attempting to have Exhibit K admitted into evidence the following foundational testimony was presented during Christine's direct examination:
“Q. [By defendant's attorney] Okay. How did you come in possession of this document?
“A. [Christine] I called medical records.
“Q. Okay. And where did you pick it up?
“A. Fourth floor at the first window.
“Q. Okay. It has stamped on it ‘Medical Arts Clinic?’
“A. Yes, I also have another paper with that, too, that's signed.
“Q. But this document has stamped on it ‘Medical Arts Clinic?’
“A. Yeah.
“Q. Is that where you got it?
“A. Yes.”
The defendant's attorney then offered Exhibit K into evidence as a business document kept in the ordinary course of business by the Medical Arts Clinic. The State objection on the ground that the document lacked proper foundation. In sustaining the objected, the district court reasoned that Christine could not testify as to whether Exhibit K was a business document kept in the ordinary course of business and concluded that “[t]he objection is sustained at this point.” (Emphasis added.)
Thereafter, Christine went on to testify that Bynum was with her at the doctor's office from 10 a.m. until noon that day and then all afternoon until he left to get her son at school around 2:30. She said he returned to their house about 15 minutes later and was home for the rest of the day. The defense did not call any other witnesses to lay the foundation for the medical document and did not attempt to get it admitted again.
Bynum argues the district court committed reversible error and denied his constitutional right to present a full and complete defense when it refused to admit a document from his son's doctor. Bynum contends the document would have supported his contention that he was at the doctor's office and not at the scene of the crime on the day in question.
The admission of evidence lies within the sound discretion of the district court. An appellate court's standard of review regarding the admission or exclusion of evidence subject to exclusionary rules, is abuse of discretion. State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004). An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable. This abuse means no reasonable person would have taken the action of the trial court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011).
The defense was attempting to have the medical document admitted into evidence under the business document exception to the hearsay rule. K.S.A.2011 Supp. 60–460 sets forth the exception to the hearsay rule for business records and reads:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
....
“(m) Business entries and the like. Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.”
In State v. Guhl, 3 Kan.App.2d 59, 588 P.2d 957,rev. denied 225 Kan. 846 (1979), a panel of this court found a letter written by an administrator of a drug rehabilitation center in New York was inadmissible as a business record for lack of foundation. The district court had allowed the State to admit it as a business record of the Johnson County probation department. But this court found that
“[i]n order to bring hearsay evidence within the business records exception of K.S.A. 60–460(m), a witness who can identify the report and explain methods and procedures used in its production must testify, establishing that the records were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which the records were made and the method of preparation indicate their trustworthiness. [Citation omitted.]” 3 Kan.App.2d at 60.
The panel found that the Johnson County Probation Office could not testify and bring it within the exception because it had no control over the third party's policies or method's of treatment or record keeping. 3 Kan.App.2d at 60–61.
It is not always necessary for the official custodian of records or the person who actually made the record to testify, but it is necessary to have someone familiar with the record keeping of the business testify as to its accuracy and authenticity. As the Kansas Supreme Court clarified:
“ ‘K.S.A. 60–460(m) does not require that the custodian of business records be called to lay the foundation facts for their admission into evidence. The foundation facts may be proved by any relevant evidence and the person making the entries in the records need not be called to authenticate them if they can be identified by someone else who is qualified by knowledge of the facts. The policy of the section is to leave it up to the trial court to determine whether the sources of information, method, and time of preparation reflect trustworthiness.’ “ Schrafi v. Leis, 236 Kan. 28, 43, 686 P.2d 865 (1984).
Here, Exhibit K does not on its face show on what date it was prepared, the purpose behind its preparation, how it was prepared, or who prepared it. It does not explicitly show the sources of the information it provides and does not state anywhere on it that it is a document prepared in the normal course of business by the medical clinic. Only Bynum's wife was called as a witness to lay a foundation for the admission of Exhibit K. However, she did not testify regarding its method of preparation, time of preparation, or accuracy of content, all circumstances that would support a finding of trustworthiness and admissibility of the exhibit as a business record. Accordingly, we conclude the district court did not err in refusing to admit the exhibit into evidence after the limited foundational testimony given by the witness.
There is an additional reason we believe the district court's ruling should not be set aside on appeal. The court in its ruling left the door open for Bynum to make an additional proffer or present further evidence to support the admission of Exhibit K. However, Bynum made no further inquiry of the district court as to the basis of its conditional ruling and did not thereafter offer any testimony from a records clerk or other employee from the Medical Arts Clinic to lay proper foundation. In our opinion, Bynum's failure to make further proffer or present additional foundational testimony constitutes invited error. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
We conclude for the foregoing reasons that the district court's decision was not arbitrary or fanciful and was well within its discretion. We find no error in the district court's determination that Christine's testimony did not provide a sufficient foundation for admission of Exhibit K as a business record under K.S.A. 60–460(m).
Affirmed.