2016JUN 13 ii\\Q>Wi
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 72654-4-1 Respondent, DIVISION ONE v. UNPUBLISHED OPINION VINOD CHANDRA RAM,
Appellant. FILED: June 13, 2016
Appelwick, J. — Ram was convicted of conspiracy to commit identity theft
and 16 counts of identity theft relating to a fuel card fraud scheme. He argues that
the trial court erred in admitting a summary chart as substantive evidence and in
permitting a witness to testify concerning a prior identification of Ram. We affirm. FACTS
Companies with fleets of large trucks, such as trucking companies, often
use fuel cards to purchase fuel for their trucks. Fuel companies issue fuel cards
that can be used to purchase fuel at "card lock" stations within the fuel company's
network. A card lock station is an unattended fueling site. A trucking company's
drivers can fuel their trucks at card lock stations by swiping a fuel card and entering
their personal identification number (PIN) at a card reader. No. 72654-4-1/2
Companies that use fuel cards receive regular bills for fuel purchases made
using the fuel cards. These bills include the time, date, and location of each
purchase. They also include the amount of fuel purchased and price paid. Some
companies may require their employees to enter additional information at the card
lock station, such as the odometer reading or truck number, in which case that
information is included on the bill.
By April 2011, multiple companies across the state of Washington had
reported unauthorized fuel purchases on their bills. Often, a single fuel card was
used multiple times in one day to purchase more fuel than the truck could hold.
One truck's fuel card was used to purchase fuel when that truck was being
repaired. Companies that required an odometer reading or truck number noticed
billing entries listing truck numbers that did not exist or impossible odometer
readings.
After a lengthy investigation by the Washington State Patrol, the State
brought charges against Vinod Ram, Manny Chuks, and Damiun Prasad in July
2013 for their involvement in this fuel card fraud scheme. They were charged with
conspiracy to commit identity theft in the first degree and 18 counts of identity theft
in the first degree. The charges related to 18 different victim companies and were
based on events between August 2010 and August 2011.
Both Chuks and Prasad accepted plea agreements that required them to
testify at Ram's trial. Chuks, an owner-operator truck driver, testified that he met
an individual he knew only as the "gas man" through a friend in 2010. Chuks later
identified the "gas man" as Ram. At first, Chuks purchased fuel for his truck at a No. 72654-4-1/3
discount through Ram. Chuks's friend used a card to pay for the fuel, pumped the
fuel, and gave Chuks and the other truck drivers directions. Then, Chuks paid
Ram in cash for the fuel.
Chuks explained that Ram later asked him to help pump gas. Ram offered
Chuks a better discount in exchange for his help. Chuks began using fuel cards
and PIN numbers given to him by Ram to activate the fuel pump and help other
truck drivers purchase discounted fuel. Chuks testified that sometimes these cards
looked like normal fuel cards with writing and colors on them. But, sometimes they
were completely blank with no writing or colors on them. And, sometimes a card
would stop working, at which point Chuks would give it back to Ram. Chuks
testified that he stopped working for Ram in June 2011.
Prasad also testified at Ram's trial. He is Ram's younger relative. Prasad
became involved in this operation when Ram asked him for help fueling Ram's
truck drivers' trucks. Prasad agreed to help. Ram would drive him to a gas station.
Prasad would fuel up all the trucks. To pay, Prasad used fuel cards that Ram had
given him and entered the PIN numbers Ram had given him. The drivers paid
Ram. Eventually, Prasad stopped assisting Ram, because he became concerned
that what they were doing was not legal.
Members of the Washington State Patrol team investigating the fraud also
testified. They executed a search warrant of a home in Pacific, Washington, in
January 2012. This home was in the name of Eva Gumiran, Ram's ex-wife. When
executing the search warrant, the detectives found a card reader in a box in a
bedroom and $35,000 in cash hidden in a rice dispenser. No. 72654-4-1/4
Ram was convicted of conspiracy to commit identity theft and 161 counts of
identity theft in the first degree. He appeals.
DISCUSSION
Ram challenges two of the trial court's evidentiary rulings: the admission of
a summary exhibit and the admission ofa witness's testimony regarding his earlier
identification of Ram. This court reviews evidentiary rulings for an abuse of
discretion. State v. Barnes, 85 Wn. App. 638, 658, 932 P.2d 669 (1997). Abuse
of discretion occurs when the trial court's ruling is manifestly unreasonable or if the
court exercised its discretion on untenable grounds, jd. The defendant bears the
burden of proving an abuse of discretion. Id.
I. Summary Chart
Ram argues that the trial court erred in admitting exhibit 101, a summary
chart prepared by Detective Sergeant Stacy Moate, as substantive evidence. He asserts that the admission of this chart was unfairly prejudicial.
Exhibit 101 is a 40 page chart that logs the unauthorized fuel purchases.
The data is sorted into ten columns. The first six columns provide information from
the victim companies' invoices: account name, date, time, location, quantity, and amount paid for each transaction. The next two columns list whether there is a surveillance photograph or video associated with the transaction and whether an individual had been identified in that footage. The last three columns indicate
1Ram was initially charged with 18 counts of identity theft in the first degree, relating to 18 different companies. The charge relating to one company was dismissed after an employee from that company failed to testify. Ram was acquitted of another charge. No. 72654-4-1/5
whether telephone records show a call around the time of the transaction and the
telephone number associated with incoming or outgoing calls in Chuks's records.
The trial court admitted exhibit 101 as substantive evidence.
The underlying records that were summarized in Sergeant Moate's chart
were also admitted into evidence via different forms. The trial court admitted
invoices from all of the victim companies. Many of these invoices were marked by
company employees to indicate the unauthorized fuel charges. Employees from
each company testified as to which purchases were unauthorized. The trial court
also admitted Chuks's telephone records as well as the telephone records of
another truck driver, Fassil Gedlu. These records showed the time and date of
incoming and outgoing calls or text messages. The court admitted surveillance
photographs and videos taken at the card lock stations. And, the trial court
admitted testimony from Chuks and Prasad identifying themselves in the
surveillance footage.
ER 1006 provides,
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.
For a summary to be admissible under ER 1006, the underlying materials must be
voluminous such that in-court examination of them would be inconvenient. Barnes,
85 Wn. App. at 662-63. The original materials must also be authentic, and the
summary must be accurate. 5C Karl B. Tegland, Washington Practice: No. 72654-4-1/6
Evidence Law & Practice § 1006.3, at 404 (5th ed. 2007). The underlying
materials themselves must be admissible as evidence. Id. at 405; see also State
v. Kane. 23 Wn. App. 107, 110-11, 594 P.2d 1357 (1979). And, the underlying
materials must be available to the other party. Barnes. 85 Wn. App. at 662-63.
These requirements were met here. In this case, all of the underlying
materials—the invoices from the victim companies, phone records, surveillance
videos, and identification testimony—were admitted into evidence. Ram does not
challenge the admissibility of these underlying materials on appeal. Nor does he
claim that they were unavailable to him.
And, the records were extensive: there were 17 victim companies with
multiple, lengthy invoices. Combined, these invoices spanned an entire year.
Many of the purchases in these invoices were not pertinent to the case against
Ram. There were two binders of telephone records. And, there was surveillance
footage recorded on many different dates at multiple card lock stations. Thus, the
record establishes that these materials were voluminous, and in-court examination
of them all would have been inconvenient. See United States v. Scales, 594 F.2d
558, 562 (6th Cir. 1979) (noting that Rule 1006 does not require it to be literally
impossible to examine the underlying records, but rather permits a summary to be
used when understanding multiple exhibits would be difficult without a chart).
The summary chart accurately captured the underlying records. Sergeant
Moate testified that she simply copied the fraudulent transactions from the victim
companies' invoices and arranged them chronologically. And, the trial court took
precautions to ensure the accuracy of the summary. An earlier version of the No. 72654-4-1/7
exhibit identified whether Chuks's or Gedlu's telephone records revealed a call to
or from Ram. The trial court recognized that the record did not support labeling
these calls as placed by or received by Ram. Even though Chuks and Gedlu
associated a particular telephone number with Ram, another person could have
made these calls using Ram's telephone. The trial court ordered the State to edit
the exhibit so that it identified these calls by the telephone number rather than
Ram's name. And, although Ram raised concerns that the placement of data in
the chart suggested that specific telephone calls were linked to specific
transactions, the trial court noted that Ram could easily address these concerns
by asking Sergeant Moate whether this was the case.
Thus, exhibit 101 was admissible under ER 1006. However, Ram maintains
that the summary was unfairly prejudicial. Ram contends that exhibit 101 was not
objective evidence, because it summarized Sergeant Moate's investigation and her conclusions drawn from the evidence. He admits that a summary of the
invoices and telephone calls would likely have been admissible. But, he argues
that because this summary juxtaposed these records and included Sergeant
Moate's opinions about whether Chuks or Prasad can be seen in the surveillance
videos and photographs, exhibit 101 invaded the province of the jury. Ram
contends that by including subjective inferences about the evidence, exhibit 101
amounted to a second closing argument for the State.
While exhibit 101 does juxtapose multiple types of evidence, we remain
unpersuaded by Ram's argument that this juxtaposition invaded the province of
the jury. The invoices, telephone records, and surveillance footage were all No. 72654-4-1/8
admitted into evidence. By arranging these disparate records in the same
document, Sergeant Moate merely organized the information into a single
document. She did not express a subjective opinion that the underlying records
were related; instead, she relied on the dates on the invoices, telephone records,
and surveillance photographs and videos to assemble the chart in chronological
order.
Nor did Sergeant Moate invade the province of the jury by providing opinion
testimony regarding the identity of the individuals seen in the surveillance footage.
A lay witness may give opinion testimony as to the identity of a person in a
surveillance photograph so long as there is some basis to believe that the witness
is more likely to correctly identify the person than the jury is. State v. George, 150
Wn. App. 110,118, 206 P.3d 697 (2009). Here, Sergeant Moate testified regarding
her identification of Chuks and Prasad in the surveillance photographs and videos.
Sergeant Moate spent a lengthy amount of time investigating this case and
interviewed both Chuks and Prasad. She was familiar with the people involved in
this scheme. Moreover, both Chuks and Prasad were confronted with the
surveillance footage on the stand and identified themselves. Therefore, we cannot
say that the trial court abused its discretion in admitting exhibit 101 when it
contained a column about whether someone could be identified in the surveillance
footage.
Ram also argues that the trial court abused its discretion by sending exhibit
101 to the jury room without restrictions. When a summary is admitted as
illustrative only, the jury should be instructed that it is not evidence, and the
8 No. 72654-4-1/9
summary should not go to the jury room. State v. Lord. 117 Wn.2d 829, 856, 822
P.2d 177 (1991). However, a summary admitted pursuant to ER 1006 is
substantive evidence, and the jury may consider it during its deliberations. Id. at
856 n.5.
Here, the trial court admitted the summary as an exhibit, rather than
illustrative evidence. The summary met the requirements of ER 1006.
Consequently, the court did not need to instruct the jury that the summary was to
be used for illustrative purposes only and not evidence. See Lord, 856, 856 n.5.
Exhibit 101 was properly admitted as substantive evidence under ER 1006.
And, it was not unfairly prejudicial to Ram. We conclude that the trial court did not
err in admitting it.
Moreover, even if the trial court did err in admitting this exhibit, such error
was harmless. Ram asserts, without citation to authority, that by permitting the
jury to use exhibit 101 in its deliberations, the trial court violated Ram's constitutional right to a fair trial. When the trial court violates an evidentiary rule rather than a constitutional mandate, we will not reverse unless there is a
reasonable probability that it materially affected the outcome of the trial. State v. Thomas, 150 Wn.2d 821, 871, 83 P.3d 970 (2004), abrogated on other grounds
by Crawford v. Washington, 451 U.S. 36, 124 S. Ct. 1354, 158 L Ed. 2d 177 (2004). The improper admission of evidence constitutes harmless error if the evidence is of minor significance compared to the overall, overwhelming evidence as a whole. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). No. 72654-4-1/10
Here, all of the evidence summarized in exhibit 101 was independently
admitted at trial. The invoices, telephone records, and surveillance videos and
photographs were admitted into evidence, and the jury was permitted to consider
them during its deliberations. Witnesses from each company testified about the
invoices, explaining how they knew certain purchases were fraudulent. The jury
heard the testimony of Sergeant Moate, Chuks, and Prasad identifying Chuks and
Prasad in multiple surveillance tapes. Further, multiple witnesses identified Ram
as the leader in the fuel fraud scheme. And, a search of his ex-wife's home
revealed a large amount of cash and a card reader.
We hold that even if the trial court erred in admitting this exhibit, there is no
reasonable probability that exhibit 101 materially affected the outcome of the trial.
Any error was harmless.
II. Asma Testimony
Ram contends that the trial court erred by allowing Michael Asma, a truck
driver who purchased discounted fuel, to testify about his earlier identification of
Ram. Ram argues that Asma's testimony should have been stricken, because
Asma revealed on cross-examination that he did not have an independent memory
of this event.
The State called Asma to testify about a time that he purchased fuel at a
discounted price. In 2011, Asma was an owner-operator working for Associated
Container Transportation. As an owner-operator, Asma owned his own truck and
was responsible for purchasing his own fuel.
10 No. 72654-4-1/11
When prompted to discuss the details of the instance when he purchased
discounted fuel, Asma could not remember. With the permission of the trial court,
Asma repeatedly used an unadmitted police report to refresh his memory. Using
the police report, Asma was able to recount the details of how he heard about the
opportunity to purchase discounted fuel, how much money he paid for the
discounted fuel, and whether other truck drivers also purchased discounted fuel.
Asma also testified regarding his identification of Ram in a photo line-up.
He testified that he was shown six photographs, and he identified one of them as
the person who sold him discounted fuel. Asma relied on exhibit 43, the photo
line-up admonition, to refresh his memory about the position of the photograph in
the line-up. And, he reviewed the unadmitted police report to remember what he
told the officers about the person he had identified. The trial court admitted exhibit
43 and exhibit 18, the photo lineup itself, into evidence.
Ram argues that Asma's recollection was not refreshed by the police report,
and the report does not meet the requirements for a past recollection recorded.
Under ER 612, a witness may use a writing to refresh his or her memory while
testifying. For a writing to be used for this purpose, the witness's memory must
need refreshing, opposing counsel must have the opportunity to examine the
writing, and the trial court must be convinced that the witness is using the writing
to aid, rather than supplant, the witness's own memory. State v. Little, 57 Wn.2d
516, 521, 358 P.2d 120 (1961). In this situation, the witness's testimony is the
evidence, not the writing. Id. at 520.
11 No. 72654-4-1/12
A writing used to refresh a witness's memory is distinct from a past
recollection recorded. ER 803(a)(5) provides a hearsay exception for
[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.
Unlike a writing used to refresh a witness's memory, the past recollection recorded
is itself evidence. Little, 57 Wn.2d at 520.
Ram contends that Asma had no independent memory even after
attempting to refresh his recollection, so his testimony was inadmissible hearsay.
But, the trial court repeatedly admonished Asma that he was to tell the jury what
he remembered, not read the report. The court stated multiple times that ifAsma
could not remember, he could look at the report to refresh his memory. Asma
acknowledged that looking at the report jogged his memory. While on cross-
examination Asma admitted that he was only able to remember the specifics of the
fuel sales and identification because of what was contained in the report, this alone
does not mean that the trial court abused its discretion in admitting Asma's
testimony. This exchange could be interpreted as meaning that Asma did not
recall these details until he refreshed his memory using the report, and he did not
have an independent recollection as to matters outside the report. See State v.
Huelett, 92 Wn.2d 967, 969-70, 603 P.2d 1258 (1979) (no abuse of discretion in
admitting witness testimony as recollection refreshed even though witness stated
he had no independent recollection beyond the notes in front of him). We decline
to substitute our judgment for that of the trial court.
12 No. 72654-4-1/13
Additionally, Asma's testimony concerning his previous identification of
Ram fell within a hearsay exception. ER 801(d)(1)(iii) provides that a statement is
not hearsay if the declarant testifies at trial and is subject to cross-examination,
and the statement is "one of identification of a person made after perceiving the
person." Asma referred to the report when recalling how he identified a photograph
in the line-up as being the "main guy" from the fuel purchase. A witness's
statement of identification of a photograph falls within ER 801(d)(1)(iii). State v.
Jenkins, 53 Wn. App. 228, 232, 766 P.2d 499 (1989). Therefore, Asma's
statements regarding his identification of Ram's photograph in the lineup were not
inadmissible hearsay.
Alternatively, even if the trial court did err in admitting Asma's testimony, the
erroneous admission of hearsay evidence does not require reversal unless, within
reasonable probability, the statement materially affected the outcome. State v.
Greiff, 141 Wn.2d 910, 928, 10 P.3d 390 (2000). Here, Detective Ruth Medeiros
of the Washington State Patrol also testified as to Asma's identification of Ram.
Detective Medeiros stated that she met with Asma, explained the photo line-up
process to him, and asked him to identify whether anyone in a series of six
photographs looked familiar. She testified that when she showed Asma the fifth
photograph, he immediately told her that was the man. The exhibits corresponding
to Asma's identification of Ram were introduced into evidence.
Asma was not the only person who identified Ram as the man running the
fuel card scheme. Chuks testified that he met Ram through a friend, Mousie, who
was also a truck driver. Chuks explained that Mousie would make the
13 No. 72654-4-1/14
arrangements to purchase fuel, and they would pay Ram, who owned the fuel card.
And, Chuks testified that he eventually started helping pump the fuel, at Ram's
suggestion. When Chuks agreed to help, Ram would give him one fuel card at a
time to use. And, Ram would tell Chuks the PIN numbers to use. If a card stopped
working, Chuks gave it back to Ram.
Prasad also testified that Ram asked him to help Ram's truck drivers fuel
their trucks. Prasad agreed to help, and Ram would drive him to the card lock
stations. Ram would drop off Prasad with the truck drivers, Prasad would use a
fuel card that Ram had given him and enter in the pin number, and the drivers
would fuel their trucks.
Based on this evidence, there is no reasonable probability that the outcome
of the trial would have been different if the trial court excluded Asma's testimony.
Therefore, even if the trial court erred in admitting this testimony, such error was
harmless.
We affirm.
WE CONCUR:
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