                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     November 18, 2014
               Plaintiff-Appellee,

v                                                                    No. 316667
                                                                     Berrien Circuit Court
SANDRA KAY WHITE,                                                    LC No. 2012-001599-FH

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

        Defendant Sandra Kay White appeals by right her jury conviction of embezzling between
$50,000 and $100,000. MCL 750.174(6). The trial court sentenced White to serve 180 days in
jail, to serve 60 months on probation, and to pay $110,859.04 in restitution. Because we
conclude there were no errors warranting relief, we affirm.

       From 2008 to 2011, White served as the City Clerk for the city of New Buffalo. One of
her duties was to reconcile the fees collected by attendants at the city’s beach and boat launch.
In 2011, there was an investigation and audit of the revenue from the beach and boat launch.
The investigation revealed that White failed to report over $92,000 in revenue.

       On appeal, White first argues the trial court erred when it admitted the prosecution’s
Exhibits 4 and 5; Exhibit 4 was a collection of the city’s monthly bank statements from April
2009 through December 2009, and Exhibit 5 was a collection of the city’s monthly bank
statements from April 2010 to December 2010. The trial court admitted the bank statements
over White’s lawyer’s objection as records of regularly conducted business activity. See MRE
803(6). The trial court allowed the Assistant City Manager to lay the foundation for the
admission of the bank statements.

        This Court reviews a trial court’s decision to admit evidence for an abuse of discretion.
People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). An abuse of discretion occurs
when a trial court “chooses an outcome that is outside the range of reasonable and principled
outcomes.” People v Waclawski, 286 Mich App 634, 670; 780 NW2d 321 (2009). However,
this Court reviews de novo preliminary question of law, such as whether a rule of evidence
precludes admission. McDaniel, 469 Mich at 412. A preserved evidentiary error does not
require reversal unless “after an examination of the entire cause, it shall affirmatively appear that


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it is more probable than not that the error was outcome determinative.” People v Whittaker, 465
Mich 422, 426; 635 NW2d 687 (2001) (citation omitted).

          MRE 801(c) defines hearsay to be “a statement, other than the one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person,
if it is intended by the person as an assertion.” MRE 801(a). Hearsay is not admissible, except
as specifically provided by the rules of evidence. MRE 802. Under MRE 803(6), records of
regularly conducted business activities may be admitted even though hearsay:

       A memorandum, report, record, or data compilation, in any form, of acts,
       transactions, occurrences, 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, or by certification that complies with a rule promulgated by the
       supreme court or a statute permitting certification, 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.

This exception is referred to as the business records exception to the hearsay rule. People v
Fackelman, 489 Mich 515, 536; 802 NW2d 552 (2011). If the custodian of the record does not
testify, another qualified witness may establish that the record was kept in the course of a
regularly conducted business activity and that it was the regular practice of such business to
make that record. People v Vargo, 139 Mich App 573, 580-581; 362 NW2d 840 (1984).

        Here, there is no question that the Assistant City Manager was not the custodian of the
bank’s records. Further, although it is common knowledge that banks routinely generate bank
statements for their customers, the Assistant City Manager was also not directly qualified to
establish that the bank generated the statements in the course of its regularly conducted business
activity. Indeed, the Assistant City Manager testified that he did not ordinarily receive or review
the city’s bank statements in the course of his duties, and that he only reviewed the bank
statements if there was an extraordinary reason to do so. He also testified that he did not provide
the bank with any of the information in the bank statements or compare the revenue collected by
the attendants with the information in the bank statements. On this record, we conclude that the
Assistant City Manager could not lay the foundation for the admission of these statements under
MRE 803(6).

       Given the nature of bank statements, some courts have held that it is unnecessary to lay a
foundation for the admission of bank statements through testimony by a qualified representative
from the bank; rather, courts may take judicial notice of the foundation from the nature of the
bank’s business and the records themselves:



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       We do not agree with appellant that the failure to call the records custodians from
       the banks that generated the documents is determinative of the documents’
       admissibility under Rule 803(6). “A foundation for admissibility may at times be
       predicated on judicial notice of the nature of the business and the nature of the
       records as observed by the court, particularly in the case of bank and similar
       statements.” Federal Deposit Ins Corp v Staudinger, 797 F2d 908, 910 (CA 10,
       1986), citing Weinstein’s Evidence at 803-178. The record as a whole in this case
       establishes a sufficient foundation for the admission of the records under Rule
       803(6).     The record is replete with circumstances demonstrating the
       trustworthiness of the documents. There is simply no dispute that the transactions
       shown by the receipts took place as recorded. As noted above, bank records are
       particularly suitable for admission under Rule 803(6) in light of the fastidious
       nature of record keeping in financial institutions, which is often required by
       governmental regulation. [United States v Johnson, 971 F2d 562, 571-572 (CA
       10, 1992); but see United States v Pelullo, 964 F2d 193, 202 (CA 3, 1992).]

        Nevertheless, we need not determine whether Michigan law recognizes such an exception
to the foundational requirements because any error in the admission of these records was not
outcome determinative. See Whittaker, 465 Mich at 426. “An erroneous admission of hearsay
evidence can be rendered harmless error where corroborated by other competent testimony.”
People v Hill, 257 Mich App 126, 140; 667 NW2d 78 (2003).

        In the present case, the information in the bank statements was corroborated by other
admissible evidence. Specifically, the accountant who performed the 2011 audit of the revenue
from the beach and boat launch testified that she compared the information in the bank
statements with the information regarding bank deposits from the city’s general ledger and the
deposit slips prepared by White. She stated that the amounts were consistent throughout the
three sets of records. In other words, the bank statements were not necessary to show that the
funds that the city deposited from the beach and boat launch in 2009 and 2010 was less than the
amount actually collected for those years.

        White further testified that when she reconciled the money reported by the boat launch
attendants in 2009 and 2010 with the money she received from them during these years, the
amounts matched. She also admitted that the amount of revenue that she received from the boat
launch attendants in 2009 and 2010 differed from the amount of revenue that she reported to the
city for the boat launch during those years. White did not explain why the amount of revenue
she received from the boat launch attendants did not match the amount of revenue she reported to
the city.

       In addition, several witnesses testified that White was also responsible for reconciling the
revenue from the beach area for the same years. White did not dispute that the amount of money
reported by the beach area attendants in 2009 and 2010 differed from the amount of revenue that
she reported to the city for the beach area during these years. None of the cited testimony relied
upon the challenged bank statements. Instead, the amount of revenue from the beach and boat
launch that White reported to the city for 2009 and 2010 was garnered from deposit slips that
White prepared and gave to the City Treasurer, the city’s general ledger, and a spreadsheet of
revenue maintained by White. Given this evidence, it does not affirmatively appear more

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probable than not that a different outcome would have resulted. Therefore, even if the bank
statements were improperly admitted under MRE 803(6), that error would not warrant relief.
Whittaker, 465 Mich at 426-427.1

       Next, White challenges the sufficiency of the evidence to support her conviction of
embezzlement. This Court reviews de novo a challenge to the sufficiency of the evidence.
People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). This Court reviews the
evidence in the light most favorable to the prosecution and determines whether a rational trier of
fact could find that the essential elements of the crime were proved beyond a reasonable doubt.
People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). “Circumstantial evidence and
reasonable inferences that arise from such evidence can constitute satisfactory proof of the
elements of a crime.” People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008) (citation
omitted). When reviewing a claim of sufficiency of the evidence, “[t]he credibility of witnesses
and the weight accorded to evidence are questions for the jury, and any conflict in the evidence
must be resolved in the prosecutor’s favor.” People v Harrison, 283 Mich App 374, 378; 768
NW2d 98 (2009).

       To convict White of embezzlement, the prosecutor had to prove:

       (1) the money in question must belong to the principal, (2) the defendant must
       have a relationship of trust with the principal as an agent or employee, (3) the
       money must come into the defendant’s possession because of the relationship of
       trust, (4) the defendant dishonestly disposed of or converted the money to his own
       use or secreted the money, (5) the act must be without the consent of the
       principal, and (6) at the time of conversion, the defendant intended to defraud or
       cheat the principal. [People v Lueth, 253 Mich App 670, 683; 660 NW2d 322
       (2002).]

See also MCL 750.174(1). White challenges only the sufficiency of the evidence with regard to
whether she dishonestly disposed of or converted revenue from the beach and boat launch to her
own use, or secreted the money and whether at the time of any conversion she intended to
defraud or cheat the city.

        Here there was adequate circumstantial evidence, and reasonable inferences arising from
the evidence, to support these two elements. Kanaan, 278 Mich App at 619. White’s position
with the city afforded her the opportunity to take the money; specifically, she reconciled receipts
and ticket stubs with cash and prepared a spreadsheet showing revenue. She prepared deposit
slips reflecting, and deposited, less money than collected. The evidence confirmed that the
shortages occurred when White was responsible for the money. From the evidence, White had to
have been aware of the fact that cash went missing somewhere in the process because she
reconciled the receipts and deposited less money than collected; yet, she never reported large
sums of money missing. In addition, White instructed other city employees not to handle the


1
 For this reason, we decline to consider whether the documents were alternatively admissible
under MRE 803(24).


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revenue from the beach and boat launch in her absence, and when the system for reconciling the
revenue changed, and White was no longer involved with the funds, the amount of revenue for
the parks increased significantly. We note that none of this evidence relies on the bank
statements. Viewing the evidence in the light most favorable to the prosecution, a jury could
find that the prosecution proved, beyond a reasonable doubt, that White dishonestly disposed of
or converted revenue from the beach and boat launch to her own use, and that at the time of
conversion she intended to defraud or cheat the city. Lueth, 253 Mich App at 683.

        Finally, White argues that the trial court erred in denying her motion for a new trial on
the ground that her conviction was against the great weight of the evidence. A lower court’s
ruling on a motion for new trial based on the claim that the verdict was against the great weight
of the evidence is reviewed for abuse of discretion. People v Unger, 278 Mich App 210, 232;
749 NW2d 272 (2008). A trial court abuses its discretion when it selects an outcome that is
outside the range of reasonable and principled outcomes. Waclawski, 286 Mich App at 670.
Although the prosecutor’s case was circumstantial, the evidence did not preponderate “so heavily
against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” Unger,
278 Mich App at 232. The trial court did not abuse its discretion when it denied White’s motion.

       There were no errors warranting relief.

       Affirmed.



                                                             /s/ Michael J. Kelly
                                                             /s/ Jane M. Beckering
                                                             /s/ Douglas B. Shapiro




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