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Dutch v. United States

June 24, 2010

ANTOINE C. DUTCH, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CMD6500-07) (Hon. John H. Bayly, Jr., Trial Judge).

The opinion of the court was delivered by: Steadman, Senior Judge

Submitted February 4, 2010

Before KERN, BELSON, and STEADMAN, Senior Judges.

Appellant Antoine Dutch appeals his conviction at a bench trial for attempted uttering; namely, cashing a forged check. His principal challenge on appeal is to the introduction as "business records" of two documents derived from information stored on computers. Finding no error, we affirm.

I.

The evidence presented to the trial court evidenced the following. On April 5, 2005, a customer walked into Malcolm Liquors and approached the store's check-cashing station. Working at the check-cashing station was the store's owner at the time, Houng Hoon Seo, who testified at trial. The customer presented a check to be cashed in the amount of $671.50, apparently issued by Thompson Hospitality Services, LLC, made payable to Antoine Dutch. Because this customer had never cashed a check at Malcolm Liquors before, Seo undertook a series of steps, which he "always" followed with new customers. He first asked for a government-issued photo ID. He compared the photo on the ID with the customer standing in the store, to make sure it was the same person. He compared the name on the check with the name on the photo ID, which was "Antoine Curtis Dutch." He then scanned both the check and the ID into his computer for transmission to Pay By Touch, a financial transaction processing company. Further, he took a photograph of the customer and scanned that into his computer, also to be sent to Pay By Touch. Finally, he asked the customer to place his finger on the Pay By Touch terminal to create a digital image of his fingerprints. Seo followed these steps for all first-time customers; when a returning customer, whose information had already been submitted into the Pay By Touch system, wanted to cash a check, all he needed to do was place his finger on the Pay By Touch terminal again, and all of the information would display on Seo's computer screen, in one convenient record.

Although Seo did not provide an in-court identification of appellant, he testified that he was satisfied on April 5, 2005, that the picture on the driver's license was a picture of the man standing in front of him in the store.

After taking these steps on April 5, 2005, Seo cashed the customer's check. Seo's bank later determined, and Dutch does not dispute on appeal, that the check was "fake." As part of a broader investigation into the passing of counterfeit checks, Secret Service Special Agent Gregory Jones reviewed Dutch's transactions at Malcolm Liquors. After speaking with Seo and reviewing the Pay By Touch records accessible at the liquor store, Special Agent Jones arrested Dutch. In court, he identified Dutch as the person he arrested.

Pay By Touch's Vice President of Technology, John McNally, testified about the computer records created and collected by Pay By Touch on behalf of its merchant clients. He testified that images of a customer's ID, fingerprints, photo, and previously cashed checks are all kept in a single record, maintained by Pay By Touch. Pay By Touch stores the information for the merchant and also makes it available to other merchants, to allow them to see if there is any "negative information" about a customer.

During the trial, the Government succeeded in entering, over Dutch's objection, two paper exhibits reflecting the various forms of identification collected by Seo and Pay By Touch in connection with the fraudulent transaction. One of them, entered as "Exhibit 2," was entitled "Returned Items Transaction Report." It contained images of the photo ID for "Antoine Curtis Dutch," the in-store photo, fingerprints, and check cashed by the customer in the store, and it listed the date of the transaction, April 5, 2005. The other, entered as "Exhibit 6" and also entitled "Returned Items Transaction Report," contained the same information as Exhibit 2, along with information about subsequent transactions between "Antoine Curtis Dutch" and Malcolm Liquors. Special Agent Jones testified that Exhibits 2 and 6 were reports he received when, as part of his investigation, he subpoenaed all records from Pay By Touch relating to Dutch. Jones also testified that he recognized Exhibit 2 as the same as the record he reviewed on Seo's computer screen during his investigation. Seo testified that Exhibit 2 was a fair and accurate depiction of the record to which he has access at his store, with the exception of the fingerprints, which do not appear on his computer when he accesses the record.*fn1

McNally testified that the records presented for trial were the same records as those kept in Pay By Touch's computer system. In preparation for trial, he accessed the Pay By Touch system and produced reports identical to Exhibits 2 and 6, in order to confirm that no changes had been made to the data contained therein since "the initial record creation." He stated that Exhibit 6 was simply "the rest of the report" contained in Exhibit 2, showing the later transactions by "Antoine Curtis Dutch" at Malcolm Liquors, so identified by the fingerprint provided on the Pay By Touch screen when those later checks were cashed. When asked directly whether Exhibit 6 was a "business record" created by Pay By Touch, he stated, "It is."

The trial court found the defendant guilty as charged.

II.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Gardner v. United States, 898 A.2d 367, 374 (D.C. 2006); Mercer v. United States, 864 A.2d 110, 117 (D.C. 2004). A statement, though hearsay, will be admissible if it falls under an exception. See, e.g., Johnson v. United States, 980 A.2d 1174, 1185 (D.C. 2009) (excited utterance); Gardner, supra, 898 A.2d at 374 (present-sense impression). A well recognized exception to hearsay is the "business records" exception, otherwise entitled the exception for "records made in regular course of business." See Clyburn v. District of Columbia, 741 A.2d 395, 397 (D.C. 1999); Giles v. District of Columbia, 548 A.2d 48, 53 (D.C. 1998); see also Super. Ct. Civ. R. 43-I. In order to qualify evidence under the exception, the proponent must show (1) that the record was made in the regular course of business, (2) that it was the regular course of the business to make such records, (3) that the record was made at the time of the act, transaction, occurrence, or event, or within a reasonable time thereafter, and (4) that the original maker has personal knowledge of the information in the record or received the information from someone with such personal knowledge and who is acting in the regular course of business. Allstate Ins. Co. v. Curtis, 781 A.2d 725, 727 (D.C. ...


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