Background
Sarah Rebecca Salo used an interactive teller machine at an Advantis Credit Union branch while presenting another customer’s driver’s license. She deposited two forged checks into the customer’s account and made two withdrawals totaling $9,950. The machine captured images of the documents and videos of Salo’s interactions with a remote teller.
After a bench trial, the court found Salo guilty of two counts of first-degree theft and three counts of identity theft. It later merged the two theft verdicts into one conviction and also merged two identity-theft verdicts. On appeal, Salo challenged the foundation for the machine-generated records, testimony by an Advantis fraud investigator, and the two theft verdicts.
The Court’s Holding
The Court of Appeals held that the state established a sufficient foundation under OEC 803(6) for the document images and videos. Even assuming Advantis and the machine’s manufacturer were separate businesses that created and maintained different records, the fraud investigator was sufficiently familiar with how the machine contemporaneously created, stored, and regularly maintained those records. She did not need to understand the machine’s camera or software at an engineering level. The court also declined to import federal Confrontation Clause requirements governing testimonial evidence into the business-records rule.
The court further held that any error in allowing the investigator to opine that Salo withdrew money while pretending to be the customer was harmless because properly admitted videos and other testimony established the same facts. As to theft, the court accepted the state’s concession that its pretrial election permitted only one first-degree theft verdict and therefore reversed the lesser-included theft conviction on Count 3. It left intact the verdict on Count 6 because Salo had not preserved her argument that the court was also barred from finding her guilty on that count.
Because the trial court had merged Count 6 into Count 3, reversal effectively unmerged the counts. The Court of Appeals remanded for entry of a conviction on Count 6 and for resentencing, and otherwise affirmed.
Key Takeaways
- A witness may authenticate another business’s records under OEC 803(6) if the witness knows the relevant record-making and record-keeping practices.
- Familiarity with how an automated system reliably creates and maintains records can suffice; detailed knowledge of its hardware and software is unnecessary.
- A pretrial prosecutorial election limited the state to one first-degree theft verdict, but unpreserved challenges to the surviving verdict were not reviewable.
Why It Matters
The decision explains how Oregon courts should evaluate business records generated through technology supplied or operated by an outside vendor. A qualified witness need not work for the record-creating business, provided the witness has adequate knowledge of how the records are made and kept.
The opinion also underscores the consequences of prosecutorial elections and preservation rules. Although the election required reversal of one theft conviction, Salo’s failure to raise her constitutional objections to Count 6 in the trial court allowed that verdict to stand.