[¶1] William Mabe appeals his conviction on a felony charge of larceny by bailee. He asserts that the trial court abused its discretion when it admitted into evidence certain documents that contained handwriting from an unidentified person. We conclude that the trial court committed no reversible error, and we affirm.
ISSUE
[¶2] Mr. Mabe's single issue, slightly rephrased, is whether the trial court erred when it admitted exhibits that contained unidentified handwriting.
FACTS
[¶3] In August 2005, Mr. Mabe went to work for Kosma Heating and Air Conditioning as a fabricator and installer of ductwork, furnaces, and air conditioners. In February 2006, Mr. Mabe gave Kosma two weeks' notice that he was moving back east and would leave his job at the end of the month. Apparently his plans were delayed, because he later asked to continue working for Kosma until the time he actually made the move. He stayed on with Kosma until March 6, 2006, when he was fired, for reasons discussed below.
[T4] Kosma maintained charge accounts with various local vendors. Employees were allowed to use those accounts to charge work-related supplies and tools. They could also use the charge accounts to purchase
[T5] Near the beginning of March 2006, Kosma received several invoices from two local vendors indicating that Mr. Mabe bad charged a substantial number of tools, supplies, and other items on Kosma's accounts. Kosma's office manager and co-owner, Christina Thompson, brought the invoices to the attention of Joseph Kosma, the other owner of the business. They agreed that Mr. Mabe had not been authorized to make the charges. It also appeared to them that the tools and supplies were not work-related. For example, one invoice included a ball-peen hammer and a wrecking bar, tools that Kos-ma employees would be unlikely to use in their work. Many of the charges were made after working hours or on weekends, times when Mr. Mabe was not at work. Also, knowing that Mr. Mabe planned to quit his job and move away at the end of February, Ms. Thompson and Mr. Kosma came to the conclusion that Mr. Mabe intended to leave without paying for the charged items, leaving Kosma "held up high and dry."
[T6] Mr. Kosma told Mr. Mabe's supervisor to fire Mr. Mabe. That same day, after he was fired, Mr. Mabe telephoned Mr. Kosma to apologize. When asked, Mr. Mabe admitted that he had planned to leave without paying for the charged items.
[¶7] Later that day, Mr. Mabe was arrested and charged with larceny by bailee under Wyo. Stat. Ann. § 6-8-402(b) (Lexis-Nexis 2007), which provides that:
A bailee ... or any person entrusted with the control, care or custody of any money or other property who, with intent to steal or to deprive the owner of the property, converts the property to his own or another's use is guilty of larceny.
Larceny by bailee is a felony if the property is valued at one thousand dollars or more. Wyo. Stat. Ann. § 6-8-402(c)(). After Mr. Mabe's arrest, the police searched his home and found several of the items that had been charged to Kosma's account.
[T8] At trial, the prosecution placed into evidence seventeen invoices from two local vendors, dating from January 26, 2006, to March 6, 2006, all reflecting charges to Kos-ma's account, and all indicating that the charged items had been "Received by" Mr. Mabe. Ms. Thompson testified that Mr. Mabe had not received prior approval for any of these charges, and that with a very few possible exceptions, none of the charged items were work-related. The trial court admitted the invoices into evidence over Mr. Mabe's objections.
[¶9] On appeal, Mr. Mabe does not dispute that the invoices themselves were properly admitted under W.R.E. 803(6), commonly known as the business records exception to the rule excluding hearsay evidence. However, he asserts that it was error for the trial court to admit nine of the seventeen invoices into evidence because they contained the notation "Willie Personal" in handwriting from an unidentified person. Mr. Mabe's nickname was Willis. According to Mr. Mabe, these notations were inadmissible hearsay, and should not have been admitted into evidence.
STANDARD OF REVIEW
[110] The parties disagree on the appropriate standard of review. Mr. Mabe asserts that defense counsel objected to the admission of the invoices at trial, and so urges us to review for abuse of discretion, citing Lopez v. State,
[¶11] During trial, the prosecution asked Ms. Thompson to establish that all seventeen invoices, as a group, were business records. It then offered all seventeen invoices into evidence. The defense objected on the bases of "foundation and hearsay." The trial court suggested that the prosecution "lay some
[¶12] The defense initially objected on the basis of hearsay, but after the prosecution elicited additional information from Ms. Thompson, hearsay was not mentioned as a basis for its objection. The objections that were made the second time were "foundation" and "the signature." Foundation, in this context, related to whether the invoices qualified as business records, but did not raise any issue regarding the "Willie Personal" notations. Review of the record shows that the objection to "the signature" also did not relate to the "Willie Personal" notations. Ms. Thompson testified that she was familiar with Mr. Mabe's signature, and she initially identified it on each of the seventeen invoices. On cross-examination, however, she agreed that the signature on one of the invoices, Exhibit 12, did not look like the other signatures, and said she could not be certain that signature was Mr. Mabe's
[¶13] Because the defense did not maintain its hearsay objection at trial, the hearsay issue it raises on appeal must be considered under the plain error standard. In fact, this case provides a good illustration of why the plain error standard should apply. If the defense had objected to the "Willie Personal" notations, then the trial court would have had an opportunity to address the issue. It might have redacted the notations from the invoices. It might have said the prosecution needed to identify who wrote the notations. But because defense counsel did not "lay his finger on the particular point" at issue, the trial court had no "opportunity to cure the alleged error." Sanderson v. State,
DISCUSSION
[114] Mr. Mabe's contention is that the unidentified handwriting on nine of the invoices was impermissible hearsay. Hearsay, of course, is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." W.R.E. 801(c). Such a statement may be oral or written, W.R.E. 801(a), and in this case it was written. The declarant was not identified, and the record does not reflect when the notations were made, so the statements were not made by the declarant while testifying. The question of whether the charges were personal or work-related was one of the main issues at trial,
[115] Again, Mr. Mabe does not dispute that the invoices themselves were prop
[¶16] The principal case on which Mr. Mabe relies, Fondedile, S.A. v. C.E. Maguare, Inc.,
[T17] Further, we cannot conclude that the admission of the invoices with the "Willie Personal" notations resulted in material prejudice. To demonstrate prejudice, Mr. Mabe must show a reasonable probability that the jury would have reached a different verdict if the evidence had not been admitted. See Lopez v. State,
[¶18] At trial, both Ms. Thompson and Mr. Kosma testified to and explained their conclusions that the items Mr. Mabe charged were not work-related, but for. personal use. Because the information suggested by the "Willie Personal" notations "was already before the court by virtue of testimony of the witnesses," it did not create material prejudice. Wyoming Sawmills, Inc. v. Morris,
Notes
. Apparently to overcome the question about the signature on Exhibit 12, the prosecution introduced testimony from the store clerk that Mr. Mabe had been involved in that particular transaction, and testimony from the police officer that an item listed on Exhibit 12 was found in Mr. Mabe's home.
. Indeed, in his brief, Mr. Mabe asserts that this was the "ultimate" question at trial, and that the "Willie Personal" notations were particularly objectionable because they invaded the province of the jury. However, under W.R.E. 704, evidence is not objectionable simply because it "embraces an ultimate issue to be decided by the trier of fact."
. Because the Wyoming Rules of Evidence we consider in this opinion are identical. to their federal counterparts, or very nearly so, authority interpreting the federal rules is useful in our application of the Wyoming rules. In re Matter of GP,
