Troy Jacobs v. commonwealth

• Court: Court of Appeals of Virginia
• Decided: July 8, 2003
• Docket: 0874024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Kelsey Argued at Alexandria, Virginia

TROY JACOBS MEMORANDUM OPINION * BY v. Record No. 0874-02-4 JUDGE RUDOLPH BUMGARDNER, III JULY 8, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Paul F. Sheridan, Judge

Mark S. Thrash for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

A jury convicted Troy Jacobs of three counts of

embezzlement. He maintains a properly authenticated record of

the Department of Motor Vehicles was inadmissible hearsay.

Concluding the trial court properly admitted the record, we

affirm the convictions.

The defendant was a restaurant manager with the

responsibility of making bank deposits. The embezzlement

charges arose from his failure to make three deposits though he

made entries to company records that indicated he had personally

made the deposits. He recorded that he had made a deposit on

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. May 13, 2000, but the bank record did not reflect a deposit that

day.

The bank teller, who knew the defendant, testified that he

had not made any deposit on May 13, 2000. The defendant

cross-examined her using a photograph taken by the bank's

surveillance camera. It showed a man transacting business at

the teller's window that morning. At the preliminary hearing,

the teller had identified the exhibit as a photograph of the

defendant. She conceded her previous statement but recanted

that testimony. The teller explained her reasons for concluding

she had been wrong and for testifying at trial that the man in

the photograph was not the defendant.

A bank investigator retrieved the photograph from the

surveillance tapes covering the period when the defendant

claimed to have made the deposit. The investigator matched the

surveillance photograph to the bank's electronic record of a

transaction made by Michael Patrick Walsh. The photograph

reflected a check cashing transaction. The investigator

presented the bank imaging record of a check cashed by Walsh at

9:56:05 a.m., May 13, 2000. The image of the check showed the

check number, and the date and time of the transaction and its

validation, all of which corresponded with the bank's electronic

journal.

- 2 - The Commonwealth offered a record from the Department of

Motor Vehicles. It consisted of a photograph of a man; the

name, "Walsh, Michael, Patrick"; a signature, "M. Walsh"; a

customer number, "T69613398"; and a date of issuance. The

Commissioner of the Department of Motor Vehicles certified that

the single page facsimile transmission was an accurate depiction

of the digital image for the "customer" with that number as

maintained by the department.

The defendant conceded the DMV record was properly

authenticated under Code § 46.2-215, but maintained it was

inadmissible hearsay. Assuming the record constituted hearsay

in this case, it was properly admissible under the public

records exception to the hearsay rule. Ingram v. Commonwealth,

1 Va. App. 335, 338, 338 S.E.2d 657, 658 (1986). See A Guide to

Evidence in Virginia Rule 803 (8), 93, 100 (2003).

In Smoot v. Commonwealth, 18 Va. App. 562, 445 S.E.2d 688

(1994), the defendant argued that a DMV record showing his

habitual offender adjudication was inadmissible because the

Commissioner did not have personal knowledge of his prior

adjudication. 1 This Court rejected that argument. Where the

1 "In today's complex world, most governmental officials do not literally have personal knowledge of the facts being recorded. If literally applied, this rule would make almost all public records inadmissible." Charles E. Friend, The Law of Evidence in Virginia § 18-29, at 721 (5th ed. 1999).

- 3 - Commissioner, who is responsible for maintaining the records,

receives data entered by another official, whose duty to record

is imposed by law, the "personal knowledge" requirement is

satisfied, and the record is admissible. Id. at 565, 338 S.E.2d

at 690. The entries made by public officials are admissible

under the official records exception without the testimony of

the recorder. Hall v. Commonwealth, 15 Va. App. 170, 175, 421

S.E.2d 887, 891 (1992). The official, who issued the license

and entered the data into the department's records, required

personal knowledge of the facts; the Commissioner did not.

In this case, the public record contained a picture, a

signature, and the number assigned by the Department of Motor

Vehicles to that picture and signature. The recorded image

resembled that in the surveillance photograph. The number and

signature matched the driver's license number and the

endorsement on the back of the check processed by the bank on

May 13, 2000. The record was admissible as an exception to the

hearsay rule, and the trial court properly admitted it.

Accordingly, we affirm the defendant's convictions.

Affirmed.

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