☢ test - Í

Hayes v. State, 298 Ga. 98, 779 S.E.2d 609 (November 16, 2015). Malice murder and related convictions affirmed; under 2013 Evidence Code, business records (here, phone company records) need not be notarized or signed under penalty of perjury to meet the requirements of OCGA § 24-9-902(11), although the comparable provision of the Federal Rules of Evidence, Rule 902(11), does require such an oath. “‘Where a provision of the new Evidence Code differs in substance from the counterpart federal rule, as interpreted by federal courts, we must correspondingly presume that the General Assembly meant the Georgia provision to be different.’ Parker v. State, 296 Ga. 586, 592(3)(a), 769 S.E.2d 329 (2015) (Footnote omitted.) And here, the provisions differ.” “This conclusion is strengthened by the fact that OCGA § 24–9–902(12), enacted simultaneously with OCGA § 24–9–902(11), and pertaining to foreign records in civil proceedings, specifically includes the requirement that the certification be notarized or signed under penalty of perjury. Thus, it is clear that the General Assembly knew how to create such a requirement, and chose not to. See Fair v. State, 284 Ga. 165, 168(2)(b), 664 S.E.2d 227 (2008).” Thompson v. State, 332 Ga.App. 204, 770 S.E.2d 364 (March 30, 2015). Felony shoplifting and related convictions affirmed; under 2013 Evidence Code, majority finds that trial court properly admitted “a store shoplifting report under the business record exception to hearsay.” Rejects defense, and dissent, argument that the report doesn’t qualify as a business record because it was made in anticipation of litigation, namely, this criminal prosecution. “While Costco may have an interest in seeing that a shoplifting suspect is prosecuted and incarcerated and thus no longer able to shoplift from its store, it simply is not a party to any potential prosecution and cannot anticipate what action the State may take, as not all shoplifters are apprehended and not all apprehended shoplifters are prosecuted. Even without considering Costo's non-party status, Costco did not make the report at the request of the State. … Since Costco prepares a loss prevention report in every instance of shoplifting, concerns about reliability and trustworthiness are minimized.” Notes that “‘[i]ncident reports prepared by a business after an accident or other event likely to lead to litigation are normally inadmissible as business records, even if the business routinely prepares such records in such circumstances.’ (Emphasis supplied.) Paul S. Milich, Georgia Rules of Evidence, § 19:11 pp. 760–761 (2014–2015),” but also notes that this rule “is not absolute. Certainly the day-to-day operations of a retail business include preventing the loss of the merchandise it sells and keeping a record of that merchandise, as the title of the report suggests.[fn] The inclusion of other information, such as the identity of any witnesses to a shoplifting incident and whether police were called to the scene, does not alter the analysis here. As Professor Milich explains further, “[t]he more routine the type of record involved, the more likely the business has developed, though repetition and experience, a reliable system for creating the records.” Milich, supra at § 19:11 p. 760. Moreover, “if the report is routinely prepared in a response to an event that normally would not lead to litigation, but in this instance subsequently does, the report may be admissible under the business record exception.” Milich, supra at § 19:11 pp. 760–761. See, e.g., Hill Aircraft & Leasing Corp. v. Cintas Corp. 169 Ga.App. 747, 749– 750(2), 315 S.E.2d 263 (1984) (physical precedent only) (memorandum made by employer concerning facts of employees' termination admissible as routine business entry).[fn] The routinely prepared report here meets these criteria. Finally, we conclude that because the foundational elements of OCGA § 24–8–803(6) were satisfied here, ‘a rebuttable presumption of trustworthiness of the evidence is created.’ Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence, p. 546 (3d ed., 2015).[fn] And, as the opponent to the admission of the evidence, Thompson was required to rebut this presumption, which he failed to do.” Barnes, writing for Miller, dissents on this point, would hold that the report was prepared in anticipation of litigation, considering that Costco initiated the prosecution and has a stake in its successful outcome. Also notes that the State fails to show any other business purpose for the document. Kilgore v. State, 295 Ga. 729, 763 S.E.2d 685 (September 22, 2014). Murder and related convictions affirmed; trial court properly admitted “cell phone records—and testimony from the records custodian of the cell phone company about those records—indicating that Kilgore's cell phone was near the video store at and around the time the crimes were committed.” Decided under OCGA § 24-3-14(b), pre-2013 evidence code, relating to business records. “Here, the records custodian for the cell phone company testified that one of the records at issue listed the locations of all the company's cell phone towers in Georgia during a span of time that included the date of the crimes and continued until changes to the towers were made in January 2009. … According to Kilgore, the foundation for the records was inadequate because the records custodian could not recall the starting date for the time span that he claimed the cell phone tower list covered. But the record custodian testified unequivocally that the list covered the dates of the calls relevant to the case. The inability of the custodian to testify with more detail about the list went only to the weight of the evidence and the credibility of his assertion that the list showed the towers as they existed on the crime date, not to the admissibility of the records,” citing Hurst v. State, 285 Ga. 294, 297(3), 676 S.E.2d 165 (2009). Holmes v. State, 315 Ga.App. 812, 727 S.E.2d 520 (April 25, 2012). First degree forgery convictions reversed; trial court