VICTOR OSAGIE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Victor Osagie, a pharmacy owner, appealed his convictions for grand theft and Medicaid fraud. The State conceded reversible error in admitting business records from Osagie's wholesaler without proper foundation testimony from a custodian or qualified witness, and the court reversed the conviction.
The court reversed Osagie's conviction, finding that the admission of the business records without proper foundation constituted reversible error. The State's proper confession of error meant the conviction could not stand, as the records were central to proving the charges.
[1] Business records are inadmissible as hearsay unless a custodian or other qualified witness testifies to their accuracy.
[2] The admission of inadmissible hearsay evidence is reversible error if it is not harmless.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To be admissible as a business record, it must be shown that the record was (1) made at or near the time of the event recorded; (2) by or from information transmitted by a person with knowledge; (3) kept in the course of a regularly conducted business activity; and (4) that it was the regular practice of that business to make such a record.”
Establishes the four-part test for admitting business records under the hearsay exception
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Join FLexlaw to unlock all legal intelligenceOsagie, a pharmacy owner, was convicted of grand theft and Medicaid fraud. At trial, the State proved its case largely through business records from O…
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ON MOTION FOR CLARIFICATION
The appellee has filed a motion for clarification in connection with the opinion issued by this Court on February 9, 2011. We grant clarification, withdraw our previous opinion, and substitute this corrected opinion in its stead.
CONFESSION OF ERROR
Defendant, the owner of a pharmacy, appeals his conviction for one count of grand theft and one count of medicaid fraud. He argues that the trial court reversibly erred by allowing the State to introduce inadmissible hearsay evidence over defense objection. On the State’s proper confession of error, we reverse.
At trial, over objection,1 the State proved its case in critical part by using business records from defendant’s wholesaler admitted through the testimony of a fraud investigator assigned to defendant’s pharmacy, without a custodian of the records or other qualified person testifying as to the accuracy of the records.2 See Brooks v. State, 918 So.2d 181, 193 (Fla.2005) (“To be admissible as a business record, it must be shown that the record was (1) made at or near the time of the event recorded; (2) by or from information transmitted by a person with knowledge; (3) kept in the course of a regularly conducted business activity; and (4) that it was the regular practice of that business to make such a record.”); see also § 90.803(6)(a), Fla. Stat. (2007) (“A memo*309randum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, á 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 such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.”). The comparison of these records to the payments made by the State being the chief mechanism by which the charges at issue were proven, we cannot conclude the admission of this evidence was harmless.
Accordingly, the order under review is reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Brooks v. State, 918 So. 2d 181 (Fla. 2005)
- Mann v. State, 787 So. 2d 130 (Fla. 3d DCA 2001)