Woman loses fraud case appeal

From Staff Reports

A Houston woman charged with fraud lost her appeal this week after claiming the trial court erred in admitting business records that lacked an explicit statement.
In August 2004, Shakoofeh Rezaie was indicted in the 209th District Court for using several credit cards in the name of Ileana Altamirez, a woman who lived in the same apartment complex.  Specifically, Rezaie and Altamirez had lived in the same community for approximately five years and shared a common mail area, where mail was sometimes left on top of residents’ mailboxes instead of being placed in a secure area.
Court records indicate that in the summer of 2004, a phone call from Discover Card led Altamirez to put a security alert on her credit line. She owned approximately five credit cards, none of which was a Dillard’s card, and had excellent credit.
Altamirez then contacted police after learning that her name, social security number and birth date had been used repeatedly to apply for credit cards addressed to Rezaie’s apartment instead of her own.
Rezaie used the Dillard’s credit card, which was approved on Altamirez’s credit information, but issued in her name, to buy men’s cologne, triggering an alert. When confronted by a Dillard’s security officer, Rezaie said that her mother authorized her to get the credit. However, the officer placed a phone call to Altamirez and learned that she was neither her daughter nor an authorized user of her credit.
Rezaie was therefore arrested and charged with fraudulent use of identifying information.
At trial, the State introduced a computer printout of an application for credit. This application was attached to the affidavit of James Kucharski, the custodian of records of Dillard National Bank.
“To the best of my knowledge, the records produced with this affidavit are true and correct records, which were made near the time indicated in the documents and were transmitted by or to a person in the bank,” Kucharski stated. “The records were kept in the regular course of business activity.” 
The application contained Altamirez’s name, birth date, social security number, and mother’s maiden name, but listed Rezaie’s address and apartment number. The application also showed the same account number that was on the Dillard’s credit card used by Rezaie.
Altamirez also testified that the entries on the application, except for the apartment number and telephone number, were her identifying information and that she neither applied for the credit nor gave her permission to another to apply.
In response, Rezaie’s attorney, Mary Acosta, first objected to the admission of the application because it allegedly did not identify what documents were supposed to be contained in the affidavit.
“It did not list the number nor did it describe what they’re supposed to be,” said Acosta, noting that it is usually a requirement under state law.
Acosta also objected to Kucharski’s credibility.
“The application and affidavit did not meet the business records exception,” she said. “It did not say that an employee with personal knowledge of the information made, recorded it, that type of thing.”
The court, however, overruled her arguments and allowed the application into evidence.
A jury subsequently found Rezaie guilty as charged, and sentenced her to serve one year in prison.
In her sole point of error, Rezaie claimed that the Dillard’s application was inadmissible as a business record because the affidavit was not made by a person with knowledge.
In the alternative, she argued that the application’s contents were hearsay within hearsay, and therefore inadmissible.
“The requirement of authentication is satisfied when the evidence supports a finding that the matter in question is what its proponent claims,” said 1st Court of Appeals Justice Sam Nuchia, who delivered the opinion of the unanimous court.
However, court records indicate that Rezaie’s objections at trial assumed that the application attached to Kucharski’s affidavit was hearsay and that it could be admitted into evidence only under the business-records exception.
“Although the application is a record that is kept by the Bank, it is not hearsay,” said Nuchia. “The rules define hearsay as a statement offered in evidence to prove the truth of the matter asserted.”
Evidence shows that the computer printout of the credit application was offered to show that a credit card had been applied for. The application was not offered to prove either who made the application or the truth of the statements within the application.
The 1st Court panel concluded that Kucharski’s affidavit, while not a model of clarity, was sufficient, in the absence of a specific objection, to authenticate the application as a record of the bank.
  As a result, the panel ruled that the trial court did not abuse its discretion in admitting the application into evidence and affirmed its previous judgment.