lastly the state failed to prove mr takeyh guilty beyond a reasonable doubt and that they failed to show any real deception on his part the state's evidence in this case was just not particularly str near the time that transaction hyrum is howard specifically stated first bad the checks are records or entries of the bank so she really had she basically was saying they're not records of the bank unless it's presented at the counter which could not specifically say as to any of the checks trial she will really be present in a store or or a lot of checks business records in general but for the purposes of the hearsay exception they could know the checks business records the paying because they were making man and miss howard respect to the checks that were written to premier i know there are the woman who testified had a lot more information too that a more reliable regular person business and that those sources of information and the method and time of preparation indicate the trustworthiness of that information the focus of this role instead is to provide for the trustworthiness of the information here first nationals testimony provided nothing about the type of computer reviews or the programs she basically just stated a general description here in terms of the computer equipment and there they found it wasn't sufficient enough to make sure the trustworthiness of probation because these checks were improperly with repeatedly mentioning that over one hundred thousand dollars steak when you subtract the irrelevant checks and also the friends happens to mr doggett for this program that herman it really turns out to be a little over fifty or so it's a lot less than the one hundred thousand dollar amount that the state people they mention here in the state provided absolutely no proof that mr so it's not clear why exactly they did that but they also included many checks that were supposedly written by mr newman such as to the v a his for his health insurance so there is a real threat that they saw in this huge stack of chads and made up their minds already and denied disregarded checks that were not proven to be connected  there was some evidence of ones in the past between the two of them by it that would just be a violation of policy it's not against the law and because there is this evidence of ones in the past it's 's to be you rick in similar cases concerning f b i deception where the definition of deception lies the same as what was given to the jury in this trial which was to knowingly create or co who they went to and whether that person or entity had any relationship to mr darby mr dog his personal life or business dealings the only ones that were connected directly to him were the ones that were to  i'm not saying it's true we discovered that would that be relevant it would be well if so you i think what you're suggesting is the state may have had it without conceding anything allowed either so that's why they are not relevant at but i take the names that pop up to get on here aren't people that were known to to the whole mor some that were included that were gifts to his daughter like a christmas hat a check for christmas and there were a lot of there that were to his hairdresser so those were some of the watch that were most owed was about two thousand in rent over this time period it was clear in the bed what he was paying for rents in each time period so that was just thank you thank you it please or we do know what happened here we know that defendant the saved mr herman to the extent of over a hundred thousand dollars and unfortunately mr mirman died three months prior this he couldn't get on the stand and testified that but the direct answer painful evidence that was presented prove that beyond a reasonable doubt beginning with the issue of the business records he cancelled checks the optical images of the cancelled checks were business records the bank he u c c requires that when an item is paid from an account and that item the check is not returned to the customer they must maintain and it can be and often an image but it must maintain a record of that for a period of seven years the uniform preservation of private business records acts provides that again the optical image is the reproduction of the original and that optical image to me admissible in court as evidence of the content of the original holy howard who was the assistant vice president of first national bank testified here that the bank does not return the actual checks to the customer mr norman did not get them therefore the bank was required to maintain these optical images of the check the bank was required to be able to make legible copies of these that for the foundation the banking representative has to say a little bit more about this than this is a system we think it's a good one we use an optical scheme and we save checks yes there are the cases are distinguishable both you know store records was checked into at trial and as i set forth in my brief it was not here you can search the record and try to prove me wrong but i'm confident saying the words that are generated or computer stored or computer printed recor of it which gets back to the weight of the weight of the value of the cancelled check also goes toward the argument that's been repeatedly made that the bank did not see any of the people write the checks that came out of mr norman sickout we don't know who wrote them who signed them well statutory law says we don't have to the making of the document has no relevancy in its mission it only goes toward its  weight that would be both again statutorily and anger you see see the lack of personal knowledge regarding all other circumstances of the making of the writing of the record go toward kuwait but not it to admission of evidence which is what foundation does laying the proper foundation for the admission and not to the weight of it then there is no substantial deprivation of rights when it is not object to and it is admitted even in this fortunately or find that that mission was not correct and the defense counsel of the trial argued extensively about these checks and to all of the things that we're discussing  here that they were not seen made them sign them the weight of those was addressed significantly with the jury the jury considered and evaluated the way they found them r the extreme if the names on those checks were the person to whom they're written may have nothing to do with the deceased but they also have nothing to do with mr  mr norman prior to the improprieties and they averaged about three a month and they show checks to his health care or the rent he was on the ticket lists in noting on the memo why exactly the reason for the  again averaged about three a month and again case law says that those are admissible especially when the victim has died as he is here to show his custom ok his habit then the second group of checks and i want to make a note that during that period of time his meticulous financial management saw his savings grow forty percent in february of zero five he had sixty six thousand five hundred dollars in august of zero seven he had ninety three thousand dollars he was very conservative despite its and it's notable when you look at his custom and his habits that during this time prior to the improprieties he never wrote a check to a car dealership a home repair store a utility company a phone company a so you are company a furniture store carpet store broadband provider automotive shop veterinarian paint store orleans paper never those checks were to city of the signatures and she testified and was honest on which check she believed at her father's signature and which ones did not taking the ones that did not we had some that were directly linked to defendant and some that were circumstantially improved and renovate and remodeled not mr norman's room that he actually paid to rent but the defendant's house in general and then you take that and you compare it to checks for example to menard's menards is a home improvement store on the front of the menards check is the name jason dog and the driver's license number for chase and dog that driver's license number can be found over here on a check to the landscaping company that circumstantially connects defendant to these got evidence under but if you paid for two or three cars with a check for it not mr norman's account and he presented it and you have a signature that the daughter has been said that's not my dad's you can take that you can compare it menards you can compare it to all of these others that are linked back to the jury had the right to compare those and make reasonable inferences from them and if they feel they match up it's reasonable to infer he wrote those they were circumstantial and there was the amount of the checks with the amount of the amount that may have been taken by deception does that need some statutory that addressing a little bit of their issue here and i will say directly i would say the premier auto and the menards checks at the checks that had notations specific to mr docker his driver's paying those types of services so we have that combined with mr hill's testimony that those services are specifically included in the cost of care and although it's been referred to as a rent payment it was an all inclusive payment for all cost of care testimony about a kitchen remodel the same thing with the carpeting windows landscaping and again one of the landscaping checks had his driver's license addressing the third responsible for resolving and i will focus on this issue of whether we establish that defendant created a false impression that he knew the polls and i'm going to reflate recites the evidence that i think  conversation defendant to back time admits that there had been thirty two hundred dollars advance to him and that he had paid back about fifteen hundred dollars and that the rest would be paid back and that there were no other mr norman with a written release which bank has instructed what they need on that release in order to write them copies this term and willingly signs it we go to the bank find out if there have been improprieties he takes this to mr herman then goes and closes the accounts now all of that in a rather terse way and i apologize is evidence that defendant created an impression that he knew was false for example when mr norman finally finds out he sees these  statements and he sees for the first time all these checks have been written what's the first thing he does he goes to the bank and closes the account but if you take this you take the defendant who for six months as promised to driving there the defendant who argued to the jury for the trial  norman purposes only wrote these checks to share his well known goes with mr hill closes the account cuts off the access that the defendant got it and he opens a new account we know that his from his own admission that there had been this conversation and that excepting what defendant said is true that mr norman didn't want to produce the records because he didn't want defendant to get in trouble if we accept that it true as true it means that there was a conversation and we don't know the substance of the conversation but we know that after that conversation between defended mr norman mr herman still didn't you know apparently pushed too hard for the bank records except that everything was ok believed whatever whatever miss the defendant told him believe that conversation and yet we know things were no we know it wasn't just thirty two hundred dollars we know from a year prior to that statement that he had been repeated checks miss britain to defend it had been drawn from mr ignorance account and it wasn't very two hundred and in fact in one month alone it was over thirty eight hundred dollars in one month there were seven checks alone written to defend it whatever that conversation was but mr irving came away with was it must be ok because he didn't there's no evidence if you got more actively agitated in trying to get these bank and to prove otherwise we know that the statement he gave to mr hill was similarly false it wasn't thirty two hundred dollars the jury had evidence of all of this jury also had evidence  norman to the bank to get copies in those six months a total of eight checks were written to and november one in december one in january three in february and one in march the jury had evidence of all this at the point of confrontation all of this changes now by the end of march the jury also had evidence that there was two thousand four hundred eighty nine dollars for maining an account that two years prior had over ninety three so i also want to recognize that in response to a question of us just disconnect the bank didn't rely on those records on a day to day basis and if you take those out there are no bankrupt they relied on them to make the bank statements and as i pointed out my brief the defendant takes no issue with foundational sufficiency of admission for those bank statements which is interesting and inconsistent with the fact that the data for the bank statement or the could see in more detail or a better opportunity in the back of the check she would one be able to tell if it was presented at the bank and two that if they were presented at the bank they became entries of the bank she did not say they were not the records of the bank absence there actually presented there although it was said that the any improprieties may have been a violation of the policy between the v a and the defendant it was much more than that this was defendant's livelihood and he knew that he could be kicked out of this program if it was determined that he was of using and violating those policies we connected them the checks were irrelevant they were business records we proved created an impression that was false beyond a reasonable doubt they still didn't provide the computer store foundation but at least those statements are something that the bank is creating they have a real they frankly don't implicate mr da way it just shows what's coming in and going out of the county doesn't have any relation  out of deception and the statements that mr irving made of not wanting to get mr dog trouble this could have been because of the rule that they cannot loan money to sponsors of the program there was nothing to show that it's there was any actual deception in the similar cases there had to invent some specific representation or statement to the victim that their money was being used for their benefit here and there just wasn't anything about that also it may have taken him so it took six months to get these statements which could have possibly change over time it doesn't it still doesn't show any deception and with respect to all these checks that they're handwriting so maybe the most they can do is the jury can you look and think they might be similar but if we are going to get into that pen the signatures throughout that exhibit are different preservation of private business record tax that those statutes govern financial institutions and making banking practices for are the business records exception  foundation and he didn't specifically mention the computer store rules in one of the cases cited to in our brief people the johnson it included a transcript in a sexual assault case