                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia


SYLVESTER LEO GUY
                                          MEMORANDUM OPINION * BY
v.   Record No. 0198-01-3                  JUDGE LARRY G. ELDER
                                              JANUARY 8, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                    William L. Wellons, Judge

          Albert L. Shaw for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     Sylvester Leo Guy (appellant) appeals from his bench trial

conviction for driving while intoxicated, his third such offense

in ten years.   On appeal, he contends the Commonwealth failed to

lay a sufficient foundation for the admission of hospital

records showing his blood alcohol concentration.     We hold the

records were admissible under the Shopbook Rule, and we affirm

appellant's conviction. 1



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       The Commonwealth offered expert testimony to establish the
effect of appellant's blood alcohol concentration on his ability
to drive and did not rely on the statutory presumption of
intoxication. On appeal, appellant challenges only the
admissibility of the test result and not the sufficiency of the
evidence to prove he was intoxicated.
     "On factual issues relating to the admissibility of

evidence, the burden of persuasion is proof by a preponderance

of the evidence."   Rabeiro v. Commonwealth, 10 Va. App. 61,

64-65, 389 S.E.2d 731, 733 (1990).     "The admissibility of

evidence is within the broad discretion of the trial court, and

a ruling will not be disturbed on appeal in the absence of an

abuse of discretion."   Blain v. Commonwealth, 7 Va. App. 10, 16,

371 S.E.2d 838, 842 (1988).

     "Under the modern Shopbook Rule, . . . verified regular

entries may be admitted in evidence without requiring proof from

the original observers or record keepers."     Ford Motor Co. v.

Phelps, 239 Va. 272, 275, 389 S.E.2d 454, 457 (1990).     Pursuant

to this rule,

          practical necessity requires the admission
          of written factual evidence based on
          considerations other than the personal
          knowledge of the recorder, provided there is
          a circumstantial guarantee of
          trustworthiness. . . . The trustworthiness
          or reliability of the records is guaranteed
          by the regularity of their preparation and
          the fact that the records are relied upon in
          the transaction of business by the person[s]
          . . . for [whom] they are kept.

"Automatic" Sprinkler Corp. of America v. Coley & Peterson,

Inc., 219 Va. 781, 792-93, 250 S.E.2d 765, 773 (1979).

     Thus, "an entry made by one person in the regular course of

business, recording an oral or written report made to that

person by others in the regular course of business, of a

transaction within the personal knowledge of such latter persons

                               - 2 -
is admissible" if verified by the testimony of (1) the person

making the entry, (2) a superior, Phelps, 239 Va. at 276, 389

S.E.2d at 457, or (3) some other person with official "access to

[the] records" and "knowledge of how the . . . records were

maintained in the ordinary course of . . . business," Sparks v.

Commonwealth, 24 Va. App. 279, 283-84, 482 S.E.2d 69, 71 (1997).

     Here, the evidence, viewed in the light most favorable to

the Commonwealth, supported the trial court's ruling that

Cecelia Owen was a person with official access to appellant's

hospital records and knowledge that the records were maintained

in the ordinary course of the hospital's business.   Owen was the

manager of health information on medical records for Halifax

Regional Hospital, and as part of her official duties, "in the

regular course of business," she maintained "the official

hospital records" of each patient's course of treatment.    She

identified Commonwealth's Exhibit 9 as a true copy of the

medical records showing treatment rendered appellant on August

29, 1999.   She confirmed that the records were "generated while

the treatment [was] actually progressing" by "the people that

actually render[ed] the care."

     Because the evidence proved that "the document[s] came from

the proper custodian, . . . [were] record[s] kept in the

ordinary course of business, . . . [were] made contemporaneously

with the event by persons having the duty to keep a true record,

and . . . [were] relied upon by those for whom [they were]

                                 - 3 -
prepared," it provided a "sufficient foundation for admission of

the [records] into evidence."    Avocet Dev. Corp. v. McLean Bank,

234 Va. 658, 667, 364 S.E.2d 757, 762 (1988).   Contrary to the

assertions of appellant and the dissent, the Shopbook Rule did

not require that Owen have personal knowledge of the procedures

hospital staff followed in taking or analyzing appellant's

blood.   It required only that she had knowledge of the

procedures for maintaining the records themselves.   The Rule

also did not require that Owen be able to identify the person

who made the entry.   See id.; Charles E. Friend, The Law of

Evidence in Virginia § 18-15, at 688 (5th ed. 1999) ("[A]

business record that otherwise satisfies the [shopbook] rule's

requirements is admissible even though the entrant's identity is

unknown.").   Owen's lack of personal knowledge regarding the

hospital lab's procedures for taking and analyzing blood and the

identity of the person who made the entry "'affect[ed] . . . not

their admissibility . . . but their credibility.'"     Sparks, 24

Va. App. at 283, 482 S.E.2d at 71 (quoting French v. Virginian

Ry. Co., 121 Va. 383, 387, 93 S.E. 585, 586 (1917)).

     Thus, we hold the trial court did not abuse its discretion

in admitting into evidence verified hospital records indicating

appellant's blood alcohol content shortly after his automobile

accident, and we affirm appellant's conviction.

                                                           Affirmed.



                                - 4 -
Benton, J., dissenting.


     The issue of the admissibility of the hospital's medical

record is governed by the following principles:

             Under the modern Shopbook Rule, adopted
          in Virginia as a recognized exception to the
          hearsay rule, verified regular entries may
          be admitted in evidence without requiring
          proof from the original observers or record
          keepers. Generally, this exception has been
          restricted to facts or events within the
          personal knowledge and observation of the
          recorder to which the recorder could testify
          if called as a witness. But the general
          application of the exception is not
          all-inclusive. We have approved a
          qualification to the principle and have held
          that an entry made by one person in the
          regular course of business, recording an
          oral or written report made to that person
          by others in the regular course of business,
          of a transaction within the personal
          knowledge of such latter persons is
          admissible. The entry must be verified by
          testimony of the former person, or of a
          superior who testifies to the regular course
          of business.

Ford Motor Co. v. Phelps, 239 Va. 272, 275-76, 389 S.E.2d 454,

457 (1990) (citation omitted) (emphasis added).

     The Supreme Court has emphasized that the Shopbook Rule

"deals with records made, and not merely kept, in the regular

course of business."   Id. at 276, 389 S.E.2d at 457.    This

limitation flows from the principle that "[t]he trustworthiness

or reliability of the records is guaranteed by the regularity of

their preparation and the fact that the records are relied upon

in the transaction of business by the person or entities for


                               - 5 -
which they are kept."     "Automatic" Sprinkler Corp. v. Coley &

Peterson, 219 Va. 781, 793, 250 S.E.2d 765, 773 (1979) (emphasis

added).    Therefore, to establish the admissibility of records

under the Rule, the evidence must prove more than that records

are kept in the ordinary course of business.

     After the Commonwealth offered the hospital record as

evidence, Guy's attorney objected to its admission.     The trial

judge then permitted Guy's attorney to voir dire the testimonial

sponsor of the medical record.    On voir dire, she testified as

follows:

            Q Do you have any idea who made these
            entries?

            A   The –-

            Q   Any of them?

            A   Other than reading the names, no.

            Q You don't know that the person who
            actually made the observation of anything
            like ethanol or anything else, you don't
            know whether that person is the person that
            made the entry onto the form, the lab tech,
            the doctor, the nurse, you have no idea who
            wrote these things down?

            A All I can do is go by the document.   I
            was not there.

     Before the trial judge admitted the record in evidence, the

witness further testified as follows:

            Q You don't know who wrote anything on this
            paper, on the record?

            A   Other than reading the signature, no.

            Q   You didn't see anybody do it?

                                 - 6 -
A   No.

Q Okay. All right. And your job is
strictly maintenance of the records?

A   Yes, sir.

Q   Is that correct?

A   Yes.

Q   All right.

      *      *   *     *   *    *    *

Q Whose signature appears or name appears
on the blood test results?

A I don't believe there's a name on it.
It's a code number in the computer system.

Q   And do you recognize that name or number?

A No, I do not. I do not have access to
that information.

Q   I see.   And is there a code number on it.

A Yes. There is a code number and initials
of the person who knows, that would be
maintained by the lab.

Q   All right.

      *      *   *     *   *    *    *

Q What is that code number? Actually the
number doesn't matter to me. You keep track
of these things by code number?

A Not in all cases, but I don't know how
the lab does it. Apparently that's the way
they do it.

Q   You are not sure how the lab works?

A   No.




                       - 7 -
             Q Is there a set of initials on the
             document that you have that would indicate
             who's responsible for any of this stuff, or
             you just don't know? Do you know what those
             initials would mean?

             A   No.

     The deficiency in the foundation for admitting the evidence

is clearly established by this testimony.        The testimony

establishes only that this is a record the witness kept in her

employment.      She did not know who made the entries, did not

recognize the code or the meaning of the code on the record, and

did not know the procedures of the laboratory where the record

was generated.      This is not a case in which "[t]he [record]

entry [was] verified by testimony of the . . . person [making

the entry], or of a superior who testifies to the regular course

of business."       Phelps, 239 Va. at 276, 389 S.E.2d at 457.    It

also is not a case such as Sparks v. Commonwealth, 24 Va. App.

279, 482 S.E.2d 69 (1997), where the issue was "whether the

bank's vice-president, who had general supervisory authority

over bank personnel but no direct supervision over the persons

responsible for preparing or maintaining the bank's records, was

a person who could authenticate the bank's records into

evidence."       Id. at 281, 482 S.E.2d at 70.   There, the bank's

vice-president testified extensively about the manner in which

the bank's records were prepared, maintained, and kept.          See id.

at 283-84, 482 S.E.2d at 71.




                                   - 8 -
       The testimony in this record fails to establish the

foundation for admitting the record under the Shopbook Rule.

Although the witness in this case was the manager of the

records, unlike the witness in Sparks, she knew nothing about

the procedures the other departments followed.   Her testimony

was deficient regarding the procedures the hospital followed in

the preparation or making of the records.    Her testimony merely

established that the records are "kept," which is an

insufficient foundation.    Phelps, 239 Va. at 276, 389 S.E.2d at

457.

       The evidence fails to establish that the record admitted

into evidence was "'made contemporaneously with the event by

persons having the duty to keep a true record.'"    Frank Shop,

Inc. v. Crown Cent. Petroleum Corp., 261 Va. 169, 175-76, 540

S.E.2d 897, 901 (2001) (citation omitted).   Citing Kent

Sinclair, Joseph C. Kearfoot, Paul F. Sheridan, Edward J.

Imwinkelreid, Virginia Evidentiary Foundations § 9.4(B) (1998),

the Commonwealth agrees that it

            was required to establish: (1) the record
            was prepared by a person with a business
            relationship with the hospital; (2) the
            informant, i.e., the ultimate source of the
            report, had a business duty to report the
            information; (3) the informant had personal
            knowledge of the facts or events reported;
            (4) the written report was prepared
            contemporaneously with the facts or events;
            (5) it was a routine practice of the
            hospital to prepare such reports; (6) the
            report was reduced to written form; (7) the
            report was made in the regular course of

                                - 9 -
          business; and (8) the entry was of an act,
          transaction, occurrence, or event.

Its proof failed to do so.

     For these reasons, I would hold that the Commonwealth

failed to establish a proper foundation for the admission of the

medical record under the Shopbook Rule.   Accordingly, I would

reverse the conviction.




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