Gas Stop: Court of Appeals of Minnesota Finds Trial Court Erred in Allowing for Admission of Gas Station Transaction Journal

Similar to its federal counterpart, Minnesota Rule of Evidence 803(6) provides an exception to the rule against hearsay for 

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. A memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception.

As the language of Rule 803(6) makes clear, for a business record to be admissible under the rule, there must be foundation testimony from either the custodian of the record or another qualified witness. The problem for the State in State v. Johnson, 2012 WL 6734450 (Minn.App. 2012), was that it had neither.

In Johnson, 

On August 25, 2010, a customer used another individual’s debit card to make two separate purchases at a gas station. The owner of the debit card noticed the purchases on his bank statement and reported it to police and his debit-card company. A sheriff’s deputy investigated the incident. He obtained the gas station’s “transaction journal,” which confirmed the two purchases, as well as a security video, which depicted the person making the two purchases. The deputy then produced a still photograph from the video and sent out a tri-county crime alert. A police officer from another police agency notified the deputy that the man in the still photograph may be appellant. The deputy then assembled a six-photograph lineup that included appellant. After the gas-station clerk identified the photograph of appellant as the man who made the two purchases at issue, appellant was charged with financial-transaction-card fraud.

At the appellant’s trial,

At trial, the state offered into evidence the transaction journal that the investigating deputy obtained from the gas station. The state offered the journal into evidence through the deputy, and defense counsel did not object to its admission into evidence. The journal indicated that the debit card was used twice on August 25, 2010, to make purchases of $226.30 and $54.95.

After he was convicted, the appellant appealed, claiming, inter alia, that the State failed to lay a proper foundation for admission of the transaction journal as a business record under Minnesota Rule of Evidence 803(6). 

The Court of Appeals of Minnesota agreed, finding that 

The district court erred by admitting the transaction journal into evidence without requiring the state’s witness to lay the foundational requirements of Minn. R. Evid. 803(6). Although a gas-station employee presumably recorded the transactions in the journal, the state offered the transaction journal into evidence through the investigating deputy. Because the deputy was not the custodian of the transaction journal, he was required to show that he was at least familiar with how the gas station compiled its business records….The deputy did not testify whether these transactions were recorded in the course of a regularly conducted business activity, whether it was the regular practice of the gas station to record these transactions in a journal, or whether he was familiar with how and when the gas station recorded these transactions. The gas-station clerk, who might have established foundation for admission of the record, did not testify regarding the journal. The district court erred by admitting the transaction journal without requiring the state to lay further foundation.

That said, because the appellant did not object to the admission of the journal at trial, the appellate court could only reverse for plain error, which it did not find.

-CM