L.H. v. State

682 N.E.2d 795, 1997 Ind. App. LEXIS 255
CourtIndiana Court of Appeals
DecidedMarch 25, 1997
DocketNo. 49A02-9605-JV-278
StatusPublished
Cited by4 cases

This text of 682 N.E.2d 795 (L.H. v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
L.H. v. State, 682 N.E.2d 795, 1997 Ind. App. LEXIS 255 (Ind. Ct. App. 1997).

Opinion

OPINION

SHARPNACK, Chief Judge.

L.H. appeals the revocation of his suspended commitment as a delinquent child. L.H. raises two issues for our review which we restate as:

1) whether his right to confront witnesses was violated; and
2) whether the State provided a sufficient evidentiary foundation to admit a school report.

We affirm.

The facts most favorable to the judgment follow. On June 19, 1995, the State filed an information which alleged L.H., who was fourteen, to be a delinquent child for committing attempted burglary, a class C felony when committed by an adult. On August 23, 1995, pursuant to a plea agreement, L.H. pleaded guilty to trespass, a class A misdemeanor when committed by an adult. Thereafter, the juvenile court magistrate placed L.H. on suspended commitment.

On December 13, 1995, the State filed an information which alleged that L.H. violated the conditions of his suspended commitment by failing to attend school. On January 30, 1996, the magistrate conducted a hearing on the information. During the hearing, the State admitted an exhibit over the defense’s objection. The exhibit contained a school report which indicated that L.H. had numerous unexcused absences from school. In addition, the exhibit included the affidavit of Gerald Swinford, the custodian of the school report.

The magistrate determined that L.H. violated the conditions of his suspended commitment by failing to attend school. The magistrate then recommended that L.H. be committed to the Indiana Boys’ School for a minimum term of six months. The juvenile court judge later adopted the magistrate’s recommendation and entered a dispositional order. L.H. now appeals the revocation of his suspended commitment.

I.

The first issue raised for our review is whether L.H.’s right to confront witnesses was violated. L.H. argues that the admission of the school report “as the State’s sole evidence violates [L.H.’s] right.” Appellant’s brief, p. 9 (original emphasis). We disagree.

At the outset we note that L.H. objected during the hearing to the admission of the school report, arguing that report contained hearsay statements and that its admission violated his right of confrontation. However, on appeal, L.H. admits that although the school report contains hearsay statements, it “could have fallen within a firmly rooted exception to the hearsay rule: the business records exception of the Indiana Rules of Evidence_” Appellant’s brief, p. 10.

[798]*798The hearsay exception for records of regularly conducted business is governed by Ind. Evidence Rule 803(6), which provides:

“A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstance of preparation indicate a lack of trustworthiness. The term ‘business’ as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”

Because L.H. concedes that the school report falls within this hearsay exception, we will proceed to his constitutional challenge that the admission of the school report violated his right of confrontation.

The confrontation clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides in part, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him_” U.S. Const, amend. VI; see Ind. Const. art. I, § 13. The primary interest secured by the confrontation clause is to insure that the defendant has the opportunity to cross-examine the witnesses against him. Gardner v. State, 641 N.E.2d 641, 645 (Ind.Ct.App.1994).

Although the accused has the right to cross-examine witnesses, exceptions to the hearsay exclusionary rule are not per se consistent with this right. Brady v. State, 575 N.E.2d 981, 987 (Ind.1991). Exceptions by which hearsay evidence may be lawfully admitted into evidence must also be separately tested to determine whether their application is violative of the right to confront witnesses. Holmes v. State, 671 N.E.2d 841, 859 (Ind.1996), reh’g denied. To avoid a violation of the confrontation clause, the State must prove that the hearsay evidence bears adequate indicia of reliability. Id. “Reliability may be inferred if a statement falls within a firmly rooted hearsay exception or in the event the hearsay exception warrants admission, but if the exception fails to qualify as firmly rooted, the State must show ‘particularized guarantees of trustworthiness’ which include ‘only circumstances surrounding the making of the statement and that render the declarant particularly worthy of belief.’ ” Id. (quoting Idaho v. Wright, 497 U.S. 805, 819, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638 (1990)).

Here, L.H. admits that the business records exception is “a firmly rooted exception to the hearsay rule.” Appellant’s brief, p. 10. Based upon L.H.’s admission alone, we can infer that the school report had adequate indicia of reliability. See Holmes, 671 N.E.2d at 859. Assuming arguendo that the business records exception is not a firmly rooted hearsay exception, we still find the school report was produced under circumstances which demonstrate that it is particularly worthy of belief. See id.

The school report is a computer printout of L.H.’s attendance record. The report lists the days in which L.H. had unexcused absences from school. A review of the report reveals that L.H.’s unexcused absences were excessive. Accompanying the school report, the State admitted the affidavit of Swinford, the custodian of the report. As indicated in Swinford’s affidavit, the reports were made in the ordinary course of the school’s business and, there was a duty to record them. Further, we find no' indication of bias or prejudice within the school report. A cross-examination of Swinford would not have added appreciably to the reliability of the facts related, namely that L.H. had numerous unexcused absences.

Under the totality of the circumstances, the school report shows particular guarantees of trustworthiness. See id. Therefore, we hold that the admission of the school report did not violate L.H.’s right to confront witnesses. See id.

II.

The final issue for our review is whether the State provided a sufficient evidentiary [799]*799foundation to admit the school report. L.H. argues that the report was inadmissible because it was not properly authenticated. We disagree.

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