Theft by Deception, the Motion to Dismiss and the Best Evidence Rule

This post examines a recent opinion from the Court of Appeals of Kansas:  State v. Gauger, 2016 WL 97343 (2016).  The opinion begins by explaining that

Robert Alfred Gauger, III, appeals his conviction for theft by deception. . . . [H]e argues that the district court erred by admitting three exhibits into evidence because they violated the best evidence rule.

State v. Gauger, supra.  Gauger was convicted in the Leavenworth District Court.  State v. Gauger, supra.  You can read more about that, and about the case, in the news stories you can find here and here. 

The Court of Appeals went on to explain how the prosecution arose:

Gauger began working for Linaweaver Construction in August 2012. His employment, however, ended on November 5, 2012. At some point after November 5, 2012, Gauger called Mark Linaweaver, the owner of Linaweaver Construction, and asked him for permission to purchase some car batteries on Linaweaver Construction's account at O'Reilly Auto Parts (O'Reilly). Mark denied this request.

In December 2012, Karen Moon, who was an administrative assistant for Linaweaver Construction at that time, was reviewing a monthly invoice from O'Reilly. Employees would sometimes purchase items at O'Reilly and charge the items to the company's account. Part of Moon's job was to match the receipts submitted by employees to the charges listed on the invoice. If there was a missing receipt, she would print an electronic copy of the receipt from O'Reilly's website. While reviewing the O'Reilly invoice, she noticed that there were missing receipts for the purchase of some batteries and a quart of oil. The charges had been signed for by a person named `Robert.’ Moon knew, however, that no one named Robert worked at Linaweaver Construction at the time the charges were made.

Moon took the invoice and printed receipts to Mark. He told her he believed Gauger was the person who had made the charges and that Gauger did not have authorization to do so. Moon then called the O'Reilly store where the purchases had been made, and the store credited the charges back to Linaweaver Construction.

State v. Gauger, supra. 

The court then outlined the history of the prosecution, including the trial:

In May 2013, the State filed a complaint against Gauger charging him with one count of theft by deception. A jury trial was held on September 15, 2014. Sean Blanke, an employee at the Leavenworth O'Reilly store in November 2012, testified first at trial. He explained that he was familiar with Linaweaver Construction and stated that when the company ordered parts from O'Reilly an employee usually called for parts and had them delivered or would come in to the store and pick them up. Blanke knew that Gauger was an employee of Linaweaver Construction for a short time because Gauger would call and order parts for the company.

[At trial,] Blanke testified that sometime in November 2012 Gauger called and ordered a battery. Blanke asked if Gauger wanted it delivered, but Gauger said he would come in to pick it up. When Gauger came into the store, the order was charged to Linaweaver Construction. Blanke did not have a discussion with Gauger about whether he was authorized to charge the purchase to that account. Blanke testified that he completed a carbon-copy receipt. The store kept a copy and the other copy was given to Gauger.

The State was permitted to introduce into evidence a printed copy of the receipt from this transaction over an objection lodged by the defense based on the best evidence rule. The printed copy of the receipt showed that the transaction took place on November 16, 2012, and that the total charge for the battery was $124.53. There is an illegible signature on the bottom of the receipt, but right above the signature line is a typed copy of the name of the customer signing the receipt. The customer was identified on the printed copy as `Bob.’ Blanke recalled typing the name Bob because it is short for Robert.

State v. Gauger, supra. 

The Court of Appeals also outlined the evidence presented at Gauger’s trial:

After Moon had her discussion with Mark, she called Blanke and asked him to print off electronic copies of some specific receipts so that she could verify the purchases. Blanke printed electronic copies of the receipts requested by Moon and had the printed copies hand delivered to her. In addition to the receipt discussed above dated November 16, 2012, Blanke testified that he also was instructed to print electronic copies of two other receipts for Moon relating to transactions about which he had no personal knowledge. Electronic copies of the receipts from these other two transactions also were introduced into evidence at trial over Gauger's objection based on the best evidence rule. One of the electronic receipts printed off by Blanke showed a charge to Linaweaver Construction of $119.12 for a battery purchased on November 13, 2012. The customer that signed the receipt was identified on the electronic copy of the receipt as `Robert.’ The other electronic receipt showed a $123.44 charge to Linaweaver Construction for a battery and a quart of motor oil. The electronic receipt reflected that this transaction occurred on November 14, 2012, and the customer again was identified as Robert.

During Moon's testimony, the State sought to introduce into evidence a copy of the monthly invoice reviewed by Moon that reflected the charges made to Linaweaver Construction's account at O'Reilly in November 2012.

The defense objected based on the best evidence rule. When questioned by the court, Moon explained that the original invoice was in her office and the exhibit offered at trial was a duplicate made from the original invoice. Moon explained that the only difference between the original and the copy was that the missing receipts on the original copy were highlighted with a yellow highlighter. Moon offered to bring in the original to show the judge but noted that she would need it back as it was a business record. The district court overruled the objection and allowed the State to introduce the printed invoice—without the yellow highlighting—into evidence. The printed invoice showed, among other things, dates, transaction numbers, some names, and the amount of each charge. The charges shown on the electronic copies of the receipts that already had been introduced into evidence appeared on the monthly invoice.

State v. Gauger, supra. 

The opinion then explained that

Alan Arevalo, the manager of the Leavenworth O'Reilly store, also testified at trial. Gauger called Arevalo on two separate occasions to say that he would like to come into the store and “take care of” the purchases he had charged to Linaweaver Construction. Defense counsel objected to this testimony on grounds that neither Gauger nor counsel had ever been told that there was contact between Gauger and Arevalo. Defense counsel also moved for a mistrial, arguing Gauger would be prejudiced if the objection was not sustained because the defense did not have time to adequately prepare for cross-examination in response to Arevalo's testimony.

The prosecutor responded to the objection and motion for mistrial by noting that, as alleged by defense counsel, the police reports in the case did not mention any contact between Arevalo and Gauger. The district court denied the motion for a mistrial and thereafter instructed the jury, without objection by the State, to disregard any statements regarding a conversation between Arevalo and Gauger.

State v. Gauger, supra. 

And, finally, the Court of Appeals explains that

Detective Tesh St. John with the Leavenworth Police Department testified he created a photo lineup that included pictures of Gauger and five other individuals with similar characteristics. He showed this lineup to Blanke. Before St. John could even start talking, Blanke identified Gauger as the person who had purchased a battery from him at O'Reilly.

After the State rested, the defense informed the district court that it was not going to present any evidence. During the jury instruction conference, the State requested that the jury be instructed to consider only the transaction that occurred on November 16, 2012, when determining Gauger's guilt. There was no objection by the defense. The jury found Gauger guilty. The district court sentenced Gauger to a 12–month probation term with an underlying prison sentence of 10 months.

State v. Gauger, supra. 

The Court of Appeals then took up the issue of the best evidence rule, noting that

Gauger argues that the district court committed reversible error by allowing the State to introduce several documents into evidence at trial over his objections based on the best evidence rule. We review best evidence challenges on appeal for an abuse of discretion. State v. Robinson, 2015 WL 6829686 (November 6, 2015). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 296 P.3d 106, cert. denied 134 S.Ct. 162 (Kansas Supreme Court 2013).

State v. Gauger, supra. 

The opinion goes on to explain that,

[r]elying on the best evidence rule, Gauger lodged objections at trial to the introduction of two exhibits containing copies of three O'Reilly receipts and an exhibit containing a copy of a monthly invoice from O'Reilly. The best evidence rule is codified at [Kansas Statutes Annotated] 60–467 and states in part:

`(a) As tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules, unless the judge finds that: (1) If the writing is a telefacsimile communication as defined in subsection (d) and is used by the proponent or opponent as the writing itself, such telefacsimile communication shall be considered as the writing itself; (2)(A) the writing is lost or has been destroyed without fraudulent intent on the part of the proponent, (B) the writing is outside the reach of the court's process and not procurable by the proponent, (C) the opponent, at a time when the writing was under the opponent's control has been notified, expressly or by implication from the pleadings, that it would be needed at the hearing, and on request at the hearing has failed to produce it, (D) the writing is not closely related to the controlling issues and it would be inexpedient to require its production, (E) the writing is an official record, or is a writing affecting property authorized to be recorded and actually recorded in the public records as described in exception (s) of [Kansas Statutes Annotated] 60–460 and amendments thereto or (F) calculations or summaries of content are called for as a result of an examination by a qualified witness of multiple or voluminous writings, which cannot be conveniently examined in court, but the adverse party shall have had a reasonable opportunity to examine such records before trial, and such writings are present in court for use in cross-examination, or the adverse party has waived their production, or the judge finds that their production is unnecessary.’

Based on his claim that the exhibits he challenged at trial were copies of original documents that did not fit into any of the exceptions listed in [Kansas Statutes Annotated] 60–467, Gauger argues the district court's decision to permit the State to introduce those exhibits into evidence was an error of law and, thus, an abuse of discretion and reversible. Gauger also argues he was deprived of his constitutional right to a fair trial because his conviction rested largely on exhibits that were improperly introduced into evidence.

State v. Gauger, supra. 

The Supreme Court began its analysis of Gauger’s best evidence rule argument by explaining that

[r]elevant to application of the best evidence rule in the context of an electronically stored document is the recent opinion filed by our Supreme Court holding, as a matter of first impression, that any printed version of an e-mail communication may be admitted as the original, provided there is no genuine dispute regarding authenticity. State v. Robinson, supra. The court's analysis of this issue is instructive:

`Robinson contends the trial court violated the best evidence rule by admitting numerous e-mails that were forwarded to police rather than printed from the victims' or witnesses' computers. Robinson also challenges exhibits containing e-mail strings rather than individual, segregated messages.’

`The best evidence rule provides that “[a]s tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules.” [Kansas Statutes Annotated] 60–467(a). A “writing” is defined broadly to include every means of recording, upon any tangible thing, any form of communication or representation. K.S.A. 60–401(m). Both parties presume the challenged e-mails constitute “writings” and were offered to prove their content. We assume, without deciding, the same. . . .’

`Generally the best evidence rule requires the original writing be introduced when available. See State v. Goodwin, 223 Kan. 257, 573 P.2d 999 (Kansas Supreme Court 1977) (original required, but secondary evidence admissible where original unavailable). However, when a writing is stored electronically, what constitutes an original and the practicalities of any production are not automatically clear. After all, “[p]roduction of a true original of an email or social networking page is not necessarily possible because both are always electronic.” Pannozzo, Uploading Guilt: Adding A Virtual Records Exception to the Federal Rules of Evidence, 44 Conn. L.Rev. 1695, 1708 (2012). K.S.A. 60–467(a) does not squarely address what constitutes an original for best evidence purposes when “the writing itself” is stored electronically, and we have not had occasion to address the subject previously.'

State v. Gauger, supra. 

The Court of Appeals explained that

[i]n the absence of controlling authority, the parties turn to the federal equivalent of our best evidence rule. Like [Kansas Statutes Annotated] 60–467, the federal rule contemplates that `[a]n original writing . . . is required in order to prove its content’ unless otherwise provided by rule or statute. [Federal Rules of Evidence] 1002. More importantly, the federal rule specifically contemplates that `f]or electronically stored information, “original” means any printout—or other output readable by sight—if it accurately reflects the information.’ Federal Rules of Evidence 1001(d). This definition is consistent with Federal Rule of Evidence 1003, which provides that ‘[a] duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.’ A ‘duplicate’ is defined as ‘a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.’ [Federal Rules of Evidence] 1001(e). We regard the federal rule, along with similar state counterparts, as instructive, and we are persuaded by the authority interpreting these provisions. See Fredricks v. Foltz, 221 Kan. 28, 557 P.2d 1252 (Kansas Supreme Court 1976) (finding federal interpretations persuasive where state and federal rules similar). The federal version of the rule is consistent with our prior holdings allowing the use of duplicates or secondary evidence, barring genuine disputes as to fraud or alteration. See, e.g., State v. Goodwin, supra (defendant's best evidence challenge flawed where he never suggested contents of secondary evidence were less than the truth; absent proof of discrepancy, secondary evidence admissible). Likewise, by excluding printouts of electronically stored information or duplicates where the content is inaccurate, the federal rules further the underlying purpose of the best evidence rule—the prevention of fraud. See U.S. v. Yamin, 868 F.2d 130 (U.S. Court of Appeals for the 5th Circuit 1989) (purpose is to prevent fraud).

State v. Gauger, supra. 

The Court of Appeals noted that

`[b]ased on the federal definition of an “original” and “duplicate” writing, along with the underlying rule accepting both for best evidence purposes, any printed version of e-mail communications may be admitted as the original, provided there is no genuine dispute regarding authenticity. See New Image Painting, Inc. v. Home Depot U.S.A., Inc., 2009 WL 4730891, at *2 (U.S. District Court for the Central District of California 2009) (copies of e-mails constitute duplicate originals under Federal Rules of Evidence 1003); Dirickson v. State, 104 Ark. App. 273, 291 S.W.3d 198 (Arkansas Court of Appeals 2009) (printouts of Internet conversations fall within definition of original); Commonwealth v. Amaral, 78 Mass.App. 671, 941 N.E.2d 1143 (2011) (Massachusetts Court of Appeals) (accepting printed e-mails as best evidence). Courts have found such printouts acceptable for best evidence purposes, even where the e-mails have been forwarded. Greco v. Velvet Cactus, LLC, 2014 WL 2943598, at *2–3 (U.S. District Court for the Eastern District of Louisiana 2014) (text messages converted to e-mail format and forwarded to counsel for printing constituted ‘original’ for best evidence purposes).’

State v. Gauger, supra.

The Court of Appeals therefore held that

[a]lthough the Robinson court analyzed the admissibility of electronically stored information under the best evidence rule in the context of an e-mail message, we believe the analysis in Robinson is equally applicable to the facts in the present case. Moon testified that she was able to print off any missing invoices from the O'Reilly website, evidence from which a reasonable inference can be made that the receipts were electronically stored. That the invoices were electronically stored is also supported by the testimony of sales associate Blanke, who stated that he was required as part of the sales process to type into the computer the name of the individual purchasing the goods. And it is reasonable to conclude from a review of the copies of the three O'Reilly receipts and the copy of the monthly invoice—which are included in the record on appeal—that all of these documents were printed copies of electronically stored documents. To that end, the invoice contained a note that said: `Need invoice copies? Go to www.oreillyauto.com/myaccount.’ Again, this strongly suggests the invoice is electronically stored.

Based on the federal definition of an `original’ and `duplicate’ writing, along with the underlying rule accepting both for best evidence purposes, we hold that the copies of the three O'Reilly electronically stored receipts and the one O'Reilly electronically stored monthly invoice were properly admitted as originals, given there was no genuine dispute regarding authenticity.

State v. Gauger, supra.

For these and other reasons, the court affirmed Gauger’s conviction. State v. Gauger, supra.