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State v. Sanders

May 27, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
JAMES RAY SANDERS, B. D. 08-14-80 APPELLANT.



Appeal from Superior Court of King County. Docket No: 96-8-02695-8. Date filed: 08/13/96.

PER CURIAM. James Sanders was charged in juvenile court with one count of malicious mischief in the third degree for the role he allegedly played in breaking a large outdoor floodlight belonging to the Bonney-Watson Funeral Home. At Sanders' subsequent fact finding hearing, the State was allowed, over a defense hearsay objection, to question the director of the funeral home regarding the value of the damaged light. Sanders was found guilty as charged. He appeals, contending that the court below improperly admitted the valuation testimony under the business records exception to the hearsay rule. He also disputes the adequacy of the court's written findings of fact and the sufficiency of the evidence. Having reviewed these issues, we find no reversible error and affirm.

FACTS

At approximately 10 p.m. on November 26, 1995, Sanders, age 15, and two other juveniles were walking by the Bonney-Watson Funeral Home when someone in the group smashed a large sodium floodlight used to illuminate the funeral home. As a consequence, Sanders and another member of the group, Stephen I. Judd, were both charged with one count of third degree malicious mischief.

At their joint fact finding hearing, Craig Hudson testified that he was the funeral director at the Bonney-Watson Funeral Home and that he lived next door to the funeral home. Craig Hudson stated he was home on the evening of November 26, 1995, when he heard a loud noise and saw a bright flash of light. Mr. Hudson rushed to his porch and noticed three individuals standing next to a large, sodium floodlight that had been broken. According to Craig Hudson, the three individuals appeared to be nervous. Mr. Hudson identified Sanders and Judd as being two of the three members of the group. Craig Hudson testified he questioned Judd about what happened and Judd said that they were kicking rocks and that one of the rocks had skipped up off the ground and broke the light. Mr. Hudson stated there was extensive damage to the floodlight. When the prosecutor asked Mr. Hudson to estimate the cost of replacing the floodlight, the defense objected on hearsay grounds. Craig Hudson went on to testify that that he learned everything he knew about the value of the floodlight from an employee named Cameron Smock and that the source of Mr. Smock's information came from certain catalogues on light fixtures. The court eventually overruled the hearsay objection, ruling The Court is satisfied that this person serves in the capacity of a manager position with the company, has access to records for the replacement of items for Bonney-Watson, and he is entitled to give an opinion regarding the value based upon his review of information as the manager, particularly since the information was communicated from information derived from Bonney-Watson records that were kept in the normal course of business. Craig Hudson then testified the value of the floodlight was $800.

King County Police Officer Garske testified that she investigated the crime and detained three suspects including Sanders. The officer testified that Sanders was identified at the scene as being one of the individuals involved in breaking the light. Officer Garske also described the extensive damage to the floodlight. The officer stated that the glass portion of the light was lying all over the lawn area of the funeral home and that there were dents on the light fixture.

While Sanders did not testify at the hearing, Stephen Judd did. Judd testified that neither he nor Sanders had anything to do with breaking the floodlight. While Judd admitted that he and Sanders were throwing and kicking a few small rocks on the night in question, he stated that the third member of the group, a person named Bradley James or James Bradley, was the person who actually broke the light. The juvenile court found Sanders and Judd both guilty as charged. Rather than order Sanders to serve a standard range Disposition, the court imposed an Option B Disposition of 30 days confinement based on Sanders' past criminal history, his inability to reduce his level of criminal activity, and his failure to comply with an earlier Dispositional order. This appeal followed.

ANALYSIS

Sanders first contends that the juvenile court improperly permitted Craig Hudson to testify regarding the value of the broken floodlight. We review the admission of such evidence under an abuse of discretion standard. *fn1

The specific issue before us then is whether the juvenile court abused its discretion when it permitted Craig Hudson to testify that the value of the broken floodlight was $800. "In so doing we consider bases mentioned by the trial court as well as other proper bases on which the trial court's admission of evidence may be sustained." *fn2

The State asserts the juvenile court properly admitted the testimony under the business records exception to the hearsay rule, RCW 5.45.020, which provides:

A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its 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. Attempting to fit Craig Hudson's valuation testimony within the plain meaning of this statute presents some obvious problems, however. By its plain terms, RCW 5.45.020 is concerned only with the admissibility of the record itself as evidence. Craig Hudson's testimony concerning the value of the floodlight is not in the form of a written record. While at least one court has held that a witness may testify as to the contents of a record without introducing it as evidence, the witness in that case supervised the preparation of the record and thus was familiar with its subject matter. *fn3 Although it is not entirely clear from the record here, it appears that Cameron Smock was the one who actually reviewed the catalogues and that he then discussed the pricing information contained in those catalogues with Craig Hudson. While these catalogues were apparently used by the funeral home to purchase light bulbs and other fixtures, we know almost nothing else about them. Mr. Smock did not testify at the hearing, nor were the catalogues admitted into evidence. Thus, Hudson's valuation testimony is a clear case of double hearsay. When a witness' testimony includes hearsay within hearsay, "each part of the combined statements" must fall within a hearsay exception. *fn4 Given the uncertainties that exist in this case regarding the preparation of the catalogues and their contents, Craig Hudson's valuation testimony simply does not possess the degree of reliability necessary to qualify as a business record under RCW 5.45.020.

In the alternative, the State claims Craig Hudson's valuation figure of $800 was admissible as the opinion of a lay witness. ER 701 allows opinion evidence by lay witnesses "if the testimony is rationally based on the witness' perception and is helpful to a clear understanding of the testimony or the determination of a fact in issue." *fn5 The opinion testimony must, however, be based on first-hand knowledge or observation. *fn6 Here, Craig Hudson was not familiar with the way items were purchased at the funeral home and candidly admitted that he had no first-hand knowledge about the value of the floodlight. As previously discussed, Craig Hudson testified that he knew nothing about the value of the light fixture before talking to Mr. Smock. Because Craig Hudson lacked personal knowledge regarding the value of the floodlight, the testimony would not have been admissible under ER 701. *fn7

But even if the evidence was inadmissible hearsay, it would not constitute reversible error unless it was reasonably probable that the outcome of the proceedings was materially affected. *fn8 We are convinced that exclusion of Craig Hudson's valuation testimony would not have changed the outcome of this case. Although Craig Hudson was the only witness called by the State to testify concerning the dollar value of the floodlight, circumstantial evidence is as reliable as direct evidence. *fn9 Several witnesses testified regarding the extensive damage done to the floodlight. Not only was the floodlight destroyed, but its metal housing was damaged as well. Before it was broken, the floodlight had been used to illuminate the funeral home. Under the circumstances, the circumstantial evidence was sufficient for a rational trier of fact to reasonably infer that the cost of repairing the damaged property exceeded $50. Any error resulting from the admission of the valuation testimony was therefore harmless.

Sanders next contends the juvenile court failed to enter the necessary written findings of fact and Conclusions of law. More specifically, he argues the court omitted a finding ...


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