State v. White

644 P.2d 318, 102 Idaho 924, 1982 Ida. LEXIS 237

• Court: Idaho Supreme Court
• Decided: April 15, 1982
• Docket: 13835
• Status: Published

Opinions

DONALDSON, Justice.

The defendant-appellant was convicted by a jury of Issuing a Check With Insufficient Funds under I.C. § 18-3106(b). He was placed on probation for three years and this appeal followed.

The only issue on appeal is whether a reconstruction of the appellant’s bank statement should be entered into evidence when the original has been lost or destroyed.

The prosecution entered into evidence a reconstruction of a bank statement that had been sent to the defendant in December, 1978. This evidence was introduced for the purpose of showing there was no money in the appellant’s bank account. An operations officer for the Idaho First National Bank, Virginia Linkous, testified that the appellant’s bank statement would normally have been committed to microfilm and entered into evidence, but she was unable to locate December’s statement on the microfilm so she prepared the exhibit in question by going to the daily transaction journal and typing in the figures. This daily transaction journal is a record of every customer’s banking transactions and was also used in preparing the missing statement.

The appellant argues that this reconstructed exhibit is hearsay and that the “regularly kept records” exception under I.C. § 9 — 414¹ is the only exception that could possibly apply. However, he argues that this exception is inapplicable because even though the original would have been admissible, the reconstructed exhibit was made in anticipation of litigation and prepared eighteen months after the banking transaction occurred.

The appellant also argues that the trial court erred in relying on F.R.E. 803(24) to admit the evidence because the federal rules have not been adopted in Idaho. However, this Court has held that where a ruling is correct it is immaterial that the reason given by the trial court for admitting the evidence may have been incorrect. Daniel v. Moss, 93 Idaho 612, 469 P.2d 50 (1970).

The lost statement was prepared by a computer in the ordinary course of business and the parties agreed that had this statement not been lost it would have been admissible under the business records exception to the hearsay rule which is set forth in LC. § 9-414. Thus, we find that under circumstances where the parties agreed that if the statement had not been lost it would have been admissible under the business records exception, a hearsay objection concerning a reconstruction of that lost statement is inapplicable. Once the original evidence has withstood a hearsay objection, secondary evidence of that original is not subject to a hearsay analysis. See Standard Oil Company of California v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958); Exclusive Florists, Inc. v. Kahn, 17 Cal.App.3d 711, 95 Cal.Rptr. 325 (1971). Therefore, we affirm the judgment of the trial court.²

BAKES, C. J., and McFADDEN and SHEPARD, JJ., concur.

1 . “9-414. Business records — When competent evidence. — A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to the identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

2 . Secondary evidence in Idaho is controlled by I.C. § 9-411. The defendant made no objection under this section and “[i]t is a long established principle of this Court that, with limited exception, error at trial must be the subject of proper objection to merit review on appeal.” State v. Wright, 97 Idaho 229, 231, 542 P.2d 63, 65 (1975) (citations omitted); State v. Thomas, 94 Idaho 430, 489 P.2d 1310 (1971). We have recognized an exception to this rule in a situation involving fundamental error but we do not find that this case falls within this exception. Therefore, we decline to review the evidence under I.C. § 9-411.