STATE v. STARR, 161 Wn. App. 1009 (2011)

No. 63617-1-I (linked with No. 63626-0-I).The Court of Appeals of Washington, Division One.
Filed: April 18, 2011.

Appeal from a judgment of the Superior Court for Snohomish County, No. 08-1-01865-7, Ronald L. Castleberry, J., entered June 2, 2009.

Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Schindler and Spearman, JJ.

DWYER, C.J.

Brent Starr appeals from the judgment entered on a jury’s verdict finding him guilty of murder in the first degree with a deadly weapon enhancement. Starr and his codefendant at trial, Debra Canady, were convicted in the killing of David Grim. In the opinion resolving Canady’s appeal, State v. Canady, No. 63626-0-I, we affirmed the trial court’s ruling on the admissibility of certain text message evidence. In this appeal, Starr raises identical claims of error.[1] We affirm the trial court’s rulings herein on the bases set forth in the Canady opinion.

Starr raises additional claims of error in his Statement of Additional Grounds. Finding none of these claims meritorious, we affirm.

I
The facts of this case are set forth in our opinion in Canady.

II
Starr first contends that error occurred because Grant Fields, the Verizon Wireless employee who responded to the search warrant and provided police with the text message records, neither testified nor submitted a statement at trial. In so contending, Starr implicitly asserts that the Verizon Wireless employee who did testify at trial was not qualified to do so. We disagree.

RCW 5.45.020 sets forth the requirements for the admissibility of business records. It provides:

A record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

RCW 5.45.020. “The statute does not require examination of the person who actually made the record.” State v. Ben-Neth, 34 Wn. App. 600, 603, 663 P.2d 156 (1983). A trial court’s admission of business records “is given considerable weight and will not be reversed absent a manifest abuse of discretion.” Ben-Neth, 34 Wn. App. at 603.

Here, the Verizon Wireless employee who testified regarding the text message records was the company’s custodian of records. The trial court found that he was “more than qualified to give testimony as to the mode of preparation and the retention of the documents in question.” Report of Proceedings (May 6, 2009) at 234. Because a records custodian testified as to the identity and preparation of the business records admitted herein, it was unnecessary for any other Verizon Wireless employee, including Fields, to testify further regarding those records. Thus, there was no error.

III
Starr next contends that there was no proof of the telephone conversation between Detective Patrick VanderWeyst and Grant Fields of Verizon Wireless and, thus, no proof that the police did not encourage Verizon Wireless to provide records of text messages sent outside the timeframe indicated in the search warrant.

Detective VanderWeyst testified that after faxing the initial search warrant to Fields, he called Fields to inform him that the search warrant authorized the police to obtain records only of those text messages sent between 6:00 a.m. and 12:00 p.m. on June 26. He further testified that, after reading the text messages sent to him by Fields and realizing that the incriminating text messages were sent prior to the period of time indicated in the warrant, he received a voice mail from Fields stating that Fields had accidentally sent records not indicated in the search warrant. The trial court found that “[n]either Detective VanderWeyst nor any other law enforcement officer did anything to direct Verizon in any way to send records outside the scope of the warrant.” Clerk’s Papers at 38-39.

“Appellate courts should not disturb trial court findings based upon substantial evidence and which hold that the testimony of the police was credible.” State v. Smith, 110 Wn.2d 658, 670, 756 P.2d 722 (1988). Here, the trial court was well within its discretion in believing the testimony of Detective VanderWeyst. Because substantial evidence supports the trial court’s finding that the police did not encourage Verizon Wireless to send records that the police were not authorized by the search warrant to obtain, the trial court did not err by so finding.

IV
Starr finally contends that “[t]here was never an estimated time of death established.” He further asserts that “[t]he absence of evidence is evidence of absence.” Appellant’s Statement of Additional Grounds for Review. Because time of death is not an element of the crime of murder in the first degree, the State was not required to establish Grim’s time of death. There was no error.

Affirmed.

We Concur: