COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Kelsey and Huff Argued at Chesapeake, Virginia

FREDERICK EDWARD MITCHELL MEMORANDUM OPINION * BY v. Record No. 2223

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- 1 JUDGE D. ARTHUR KELSEY NOVEMBER 15, 2011 COMMONWEALTH OF VIRG INIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr. , Judge Michael Rosen berg (Richardson and Rosenberg, LLC , on brief ) , for appellant. Gregory W. Franklin, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General , on brief), for appellee.
A jury convicted Frederick Edward Mitchell of obtaining money by false pr etenses and attempting to do so . On appeal, Mitchell contends the trial cou rt erred in admitting testimony concerning computerized credit union records pursuant to the business record s exception to the hearsay rule. We disagree and affirm.
I. Mitchell h ad a checking account with the Navy Federal Credit Union. On January 15, 2010, Mitchell a nd a young woman , later identified as Tanisha Reeves, twice visited the County Street branch in Portsmouth . On the first visit, he presented a check for $900 made pa yable to him upon the Wachovia bank account of Reeves. Mitchell received $700 in cash and deposited $200 into his credit union checking account

.

* Pursuant to Code § 17.1

- 413, this opinion is not designated for publication.- 2

- On the second visit, l ater that day , Mitchell presented a check for $700 payable to him upon the Wachovia ban k account of Reeves. The teller questioned the validity of the check, investigated, and learned Wachovia had closed Reeves’ s account. Cynthia Brown, the County
Street branch supervisor for Navy Federal Credit Union , refused to deposit the check and deman ded that Mitchell return the $700 from the transaction earlier in the day. The branch supervisor also accessed the Navy Federal Credit Union ’s “information sharing system” that provided common access to computerized database s and facilitated transferring of information “between the different branches. ” App. at 36. At trial, t he supervisor explained that the County Street branch “as well as the other branches, regularly rely on the information on that system to do their business.” Id. at 37

- 38. A custo mer’s records, she testified, are accessible only by using the “access number” or “unique identifier” associated with each particular customer. Id. at 38. The computer records include notations and the customer’s transaction histor y going back thirty to sixty days. When the supervisor accessed Mitchell’s account, the computer record showed that , on January 15, between the two v isits to the County Street branch, Mitchell also visited the Janaf branch of the Navy F ederal Credit Union in Norfolk. The comput er record stated Michell attempted to cash a n invalid check for $750 from a Wachovia account

. The Janaf branch refused to accept the check. At trial, Mitchell’s counsel objected to the supervisor’s testimony concerning the Janaf branch transaction , argui ng “there’s no foundation for a business record exception here. We don’t have a custodian of records to testify.” Id. at 37. The trial court found the foundation adequate and overruled the objection.

II. On appeal, Mitchell challenges the trial court’s decision to admit , over his objection, the supervisor’s testimony reciting the computer record of Mitchell’s transaction at the Janaf branch- 3

- of the credit union

. He argues the supervisor failed to provide an adequate foundation for the application of the business records exception to the hearsay rule. We disagree. As we recently held, “[w] hether an adequate foundation has been laid for a hearsay exception involves an exercise of discretion by the trial court. ” Joyce v. Commonwealth , 56
Va. App. 646, 663, 696 S.E.2d 237, 245 (2010) (citing A bney v. Commonwealth , 51 Va. App. 337, 347, 657 S.E.2d 796, 801 (2008) ). “ We do not review foundation issues de novo but rather under the deferential abuse

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- discretion standard of review. ” Id. (citation omitted). “ Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.” Id. (quoting Grattan v. Commonwealth , 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting in parenthetical Thomas v. Commonwealth , 44 Va. App. 741, 753, 607 S .E.2d 738, 743 (2005 ) )). With respect to c omputer records, “ when the argument has been advanced that they are inadmissible hearsay, we have employed the traditional business records exception to the hearsay rule. ” Kettler & Scott , Inc. v. Earth Tech

. Cos. , 248 Va. 450, 457, 449 S.E.2d 782, 785 (1994) (citation omitted)

. The exception does not require “proof from the original observers or record keepers. ” Smith v. Commonwealth , 280 Va. 178, 183, 694 S.E.2d 578, 580 (2010) ( citation omitted )

. A sufficient foundation may be established by “the testimony of the custodian or other qualified witness , unless the source of information or the method or circumstances of preparation indi cate lack of trustworthiness.” A Guide to Evidence in Virginia § 803(6), at 10 2 (2011) (emphasis added). “The final test is whether the documents sought to be introduced are the type of records which are relied upon by tho se who prepare them or for whom they are prepared. ” Smit h , 280 Va. at 184 , 694 S.E.2d at 580 ( quoting McDowell v. Commonwealth , 273 Va. 431, 435, 641 S.E.2d 507, 509 (2007)). On several occasions, we have applied these principles to computer records. In Lee v. Commonwealth , 28 Va. App. 571, 507 S.E.2d 629 (1998), a fraud investigator “testified from the- 4

- business record generated by the computer and displayed on the terminal which he observed.” Id. at 577, 507 S.E.2d at 632. We noted that a computer merely decodes electronic records, converts them into a format understood by users and either prints them or displ ays them on a terminal. A person who can verify that the business records are authentic can present the evidence by testifying about what he saw displayed or by presenting a printed copy of the display. Either form is admissible as a business records exc eption to the hearsay rule. Id. For foundation purposes, it is enough that the witness “ had knowledge of how the records were compiled and maintained ” and had “ access to those records as an integral part of his responsibilities

. ” McDowell v. Commonwealt h , 48 Va. App. 104, 108

- 09 , 628 S.E.2d 542 , 545 (2006) (quoting Lee , 28 Va. App. at 576, 507 S.E.2d at 629) , aff’d , 273 Va. 431, 641 S.E.2d 507 (2007); see also Cooper v. Commonwealth , 54 Va. App. 558, 568, 680 S.E.2d 361, 366 (2009) ; Midkiff v. Commonweal th , 54 Va. App. 323, 338, 678 S.E.2d 287, 29 5 (2009)

. Governed by these principles, the trial court did not abuse its discretion in finding the credit union branch supervisor to be a “qualified witness,” A Guide to Evidence in Virginia § 803(6), at 102 , f or purposes of authenticating the computer record of Mitchell’ s account. As we held in a similar context, someone with “general supervisory authority over bank personnel but no direct supervision over the persons responsible for pr eparing or maintaining t he bank’ s records, was a person who could authenticate the bank’s records

. ” Sparks v. Commonwealth , 24 Va. App. 279, 281, 482 S.E.2d 69, 70 (1997)

. The branch supervisor t estified that the credit union maintained the information sharing system in the reg ular course of its business . She had access to the computer system, which shared information to a ll branches of Navy Federal Credit Union

. The credit union assigned

e ach customer, including Mitchell, a unique identifier for the purpose of inputting infor mation into the system. These circumsta nces provided a sufficient foundation for the admission of the supervisor’s testimony about Mitchell’s account on the computer system. In short, h er testimony- 5

- passes the “ final test ”

— a simpl e showing that “ the doc uments sought to be introduced are the type of records which are relied upon by those who prepare them or for whom they are prepared. ” Smith , 280 Va. at 184 , 694 S.E.2d at 580 (citation omitted).

III.
T he trial court did not abuse its discretion in admit ting the supervisor’s testimony about the credit union’s computer records pursuant to the business records exception to the hearsay rule. 1 We thus affirm Mitchell’s convictions. Affirmed.

1 The Commonwealth argues that, even if the trial court erred, it would at best amount to harmless error , given the other incriminating evidence presented at trial. Given our holding, however, we need not address this issue. See generally Ki rby v. Commonwealth , 50 Va. App. 691, 698

- 99 , 653 S.E.2d 600, 6 03

- 04 (2007) (summarizing harmless error standard for nonstructural trial error). For the same reason, we limit our recitation of the facts to the evidentiary subset of the trial court record relevant to the argument raised on appeal.