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ROBINSON v. COMMONWEALTH


ROBINSON, JR.

v.

COMMONWEALTH


June 11, 1999

Record No. 981691

LEROY ROBINSON, JR.

v.

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Present: All the Justices

OPINION BY CHIEF JUSTICE HARRY L. CARRICO


The defendant, Leroy Robinson, Jr., was convicted in a bench
trial in the Circuit Court of Henrico County of grand larceny for
the theft of three sport coats from Hecht’s Department Store
at Regency Square Shopping Center in Henrico County. After
receiving and considering a probation report, the trial court
sentenced the defendant to serve fifteen years in the
penitentiary, with ten years suspended.

The Court of Appeals affirmed the conviction by order, and we
awarded the defendant this appeal. In a single assignment of
error, the defendant contends that "[t]he trial court erred
in admitting hearsay testimony of store employees concerning the
price listed on store tags to prove value."

Grand larceny consists of the theft, not from the person of
another, of goods and chattels valued at $200.00 or more. Code
Sect. 18.2-95(ii). This statutorily specified amount is an
essential element of the offense, and the burden is upon the
Commonwealth to establish that element by proof beyond a
reasonable doubt. Walls v. Commonwealth, 248 Va. 480, 481,
450 S.E.2d 363, 364 (1994). "Proof that an article has some
value is sufficient to warrant a conviction of petit larceny, but
where the value of the thing stolen determines the grade of the
offense, the value must be alleged and the Commonwealth must
prove the value to be the statutory amount." Wright v.
Commonwealth
, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954).

The test is market value, and particularly retail value. See
People v. Irrizari, 156 N.E.2d 69, 71 (N.Y. 1959).
"[F]air market value is the price property will bring when
offered for sale by a seller who desires but is not obliged to
sell and bought by a buyer under no necessity of
purchasing." Board of Supervisors v. Donatelli &
Klein, Inc.
, 228 Va. 620, 628, 325 S.E.2d 342, 345 (1985).
And the original purchase price of an item is admissible as
evidence of its current value. Parker v. Commonwealth, 254
Va. 118, 121, 489 S.E.2d 482, 483 (1997); Dunn v. Commonwealth,
222 Va. 704, 705, 284 S.E.2d 792, 792 (1981).

At trial in the circuit court, Jonathan K. Cessna, a security
agent for Hecht’s who witnessed the theft of the three sport
coats, testified over the defendant’s hearsay objection that
the value of the coats totaled $499.97. Cessna also testified
that he knew what the value was because "that’s what it
is on the price tags" and "that’s what
they’re sold for."

Victoria Ann Burton, a regional director of Hecht’s who
also witnessed the theft, testified over the defendant’s
hearsay objection that the sport coats were valued at $499.97 and
that she knew the value from the "tickets [that] were
attached to the [coats]." Neither the Commonwealth nor the
defendant offered any other evidence concerning the value of the
coats, and, while photographs of the coats were introduced into
evidence, neither the coats themselves nor the price tags were
offered into evidence.

In overruling the defendant’s hearsay objection to the
testimony of the store employees, the trial judge observed that
the price tag affixed to an item "is the evidence of the
value of the item." In affirming, the Court of Appeals
stated in its order that "the trial court did not err in
overruling [the defendant’s] hearsay objection."

On appeal, the defendant points out correctly that hearsay is
an out-of-court statement offered to prove the truth of the
matter asserted and that hearsay includes testimony given by a
witness who relates not what he knows personally but what others
have told him or what he has read. See Williams v.
Morris
, 200 Va. 413, 417, 105 S.E.2d 829, 832 (1958); Cross
v. Commonwealth
, 195 Va. 62, 74, 77 S.E.2d 447, 453 (1953).
The defendant also points out correctly that hearsay evidence is
inadmissible unless it falls within one of the recognized
exceptions to the hearsay rule, West v. Commonwealth, 12
Va. App. 906, 909, 407 S.E.2d 22, 23 (1991), and that the party
attempting to introduce a hearsay statement has the burden of
showing the statement falls within one of the exceptions, Doe
v. Thomas
, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984).

Here, the defendant says, the stolen items and their price
tags were not offered into evidence, but the store employees
testified "to what the out-of-court price tags said in order
to prove the value of the items." This, the defendant
maintains, was "hearsay to prove hearsay" or, in other
words, "double hearsay" and inadmissible because not
permitted under any exception to the hearsay rule.

We have not previously considered the question whether the
amount shown on a price tag affixed to an item by a retailer, or,
if the tag is not offered into evidence, the amount a witness
says he observed on the tag, constitutes inadmissible hearsay
when offered to prove the value of the item in a prosecution for
its theft. The Commonwealth states, however, that "many
courts have found [that] the amount on the price tag is a
reliable, common-sense source of evidence in determining the fair
market value of the item to which it is affixed."

The Commonwealth discusses at some length Boone v. Stacy,
597 F.Supp. 114 (E.D. Va. 1984), State v. White, 437 A.2d
145 (Conn. Super. Ct. 1981), and Norris v. State, 475
S.W.2d 553 (Tenn. Crim. App. 1971). In Boone, a federal
habeas corpus case applying Virginia law, the petitioner attacked
his conviction of grand larceny in state court for the theft from
a department store of five dresses. In the criminal trial, the
store’s assistant manager testified that the tagged selling
price of the five dresses was $424.00 and their cost price was
$211.00. 597 F.Supp. at 116. The petitioner objected to the
testimony concerning cost on hearsay grounds. In the habeas case,
the petitioner asserted that "the tagged selling price of
the dresses is not the test of market value nor can it be the
basis for testimony, but rather that fair market value must be
established in some other fashion." Id. at 115.

In dismissing the habeas petition, the district judge wrote
that "[t]he general rule in a shoplifting case is that
uncontradicted evidence that merchandise was displayed in a
retail establishment for regular sale at a marked price
representing its retail price can serve as sufficient
circumstantial evidence of fair market value." Id. at
117. The judge also wrote that "[c]ourts have stated that
the tagged retail price serves as ‘competent
evidence,’" id. (quoting Calbert v. State,
670 P.2d 576, 576 (Nev. 1983)), "or, alternatively, that,
though hearsay, the price tag is ‘a document prepared or
entry made in the regular course of business,’" id.
at 118 (quoting Lauder v. State, 195 A.2d 610, 611 (Md.
1963)).

In White, the trial court admitted into evidence over a
hearsay objection price tags affixed to four items of stolen
clothing as proof of the items’ value. Affirming this
action, the appellate court stated:

The defendant’s arguments against the
admissibility of these tags are without merit. We are
unpersuaded by the argument that such tags are
technically excludable as hearsay unless qualified under
the business records exception . . . since the
inherent unreliability of hearsay is not present in this
type of evidence. Rather, the fact that price tags
generally reflect market value may be judicially noted,
since this fact is both commonly known and capable of
ready demonstration.

437 A.2d at 148.

In Norris, the accused was convicted of shoplifting a
television set valued at more than $100.00. As in the present
case, the only proof of the value of the set consisted of the
testimony of two store security officers "to the fact that
the set carried a price tag of $109.95, and that that was its
price (value)." 475 S.W.2d at 555. The appellate court
affirmed the conviction, stating as follows: "That the
television set was displayed for sale over a period of time with
a certain price tag upon it is not hearsay, but fact; and is
evidence that the tag reflected its retail value." Id.
at 555-56. The court also indicated that the testimony would be
admissible under the business records exception to the hearsay
rule. Id. at 556.

The Commonwealth also cites Armstrong v. State, 516
So.2d 806, 809 (Ala. Crim. App. 1987) (value of stolen item
established when box containing stolen item is marked with price
tag and admitted into evidence); Watson v. State, 415
So.2d 128, 128 (Fla. Dist. Ct. App. 1982) (testimony of
department store employee concerning contents of price tag not
hearsay); Kowalczk v. State, 394 S.E.2d 594, 595 (Ga. App.
1990) (testimony of store manager as to actual retail price of
stolen merchandise sufficient to establish value); People v.
Drake
, 475 N.E.2d 1018, 1020-22 (Ill. App. 2d. 1985)
(information shown on stickers attached to stolen items
admissible and competent evidence); Lauder, 195 A.2d at
611 (price tags admissible where tag is attached at time of
arrest and similar tags are attached to other articles throughout
store); Lacy v. State, 432 So. 2d 1205, 1206 (Miss. 1983)
(adopting judicial notice rationale of State v. White, supra,
in holding price tags not inadmissible on hearsay grounds when
tags attached at time of theft, no reduced price sale in progress
at store, and witness had training in pricing); Calbert,
670 P.2d at 576 (price tags attached to goods at time of theft
competent evidence of value); City of Albuquerque v. Martinez,
604 P.2d 842, 843 (N.M. App. 1979) (price tag proper source from
which to infer precise value of stolen item); State v.
Rainwater
, 876 P.2d 979, 982 (Wash. Ct. App. 1994) (adopting
judicial notice rationale of State v. White, supra,
in holding price tags admissible when case involves retail store
commonly known to sell goods for non-negotiable price shown on
tag).

The defendant cites some of the same cases and, in addition, State
v. Odom
, 393 S.E.2d 146, 151 (N.C. App. 1990) (security
employee’s experience qualified price tags as records kept
in regular course of business and knowledge gained from tags
themselves did not bar their admission as evidence of value), and
State v. Kleist, 895 P.2d 398, 400 (Wash. 1995) (admission
of price tags as evidence necessitated foundation testimony which
was supplied by store’s security guard and sales manager).

In analyzing these cases, it is interesting to note that not
one holds that price tags or testimony relating to price
tags is inadmissible per se.[1]
All hold price-tag evidence admissible, but give varying reasons,
or no reason at all, for admissibility. Some say the evidence is
admissible because what is asserted is not hearsay, others
because the evidence qualifies under the business records
exception to the hearsay rule, some pursuant to the judicial
notice rationale, and some when foundation testimony is provided.

Apparent throughout, however, is a reluctance on the part of
the courts involved to say that something is hearsay or, if it
is, that an exception to the hearsay rule should be recognized to
make it admissible. We are of opinion that what we are dealing
with in this case is hearsay, [2] that it is not admissible under
any presently recognized exception to the hearsay rule, [3] and that we should consider
recognizing an exception to the rule to permit its admission.

What is involved here is a simple, uncomplicated matter.
Shoplifting is something that occurs thousands and thousands of
times throughout this country every day. It is common knowledge
that department and other stores regularly affix price tags to
items of merchandise and that the tagged price is what a
purchaser must pay to acquire an item, without the opportunity to
negotiate a reduced price or to question how the tagged price was
reached.

Under these circumstances, "the inherent unreliability of
hearsay is not present." State v. White, 437 A.2d at
148. Therefore, it would be unreasonable and unnecessary to
require that in each case a merchant must send to court not only
a security person but also other personnel to establish the
reliability of the information shown on a price tag affixed to an
item that has been stolen.

Rather, we think the common-sense approach to the problem is
to recognize an exception to the hearsay rule in shoplifting
cases permitting the admission into evidence of price tags
regularly affixed to items of personalty offered for sale or, in
substitution, testimony concerning the amounts shown on such
tags. While such evidence, when admitted, would suffice to make
out a prima facie case of an item’s value, the accused would
retain full opportunity to cross-examine adverse witnesses and to
present rebutting evidence on the issue of value. See State
v. White
, 437 A.2d at 148. For example, if a store conducts a
sale but computes the reduced price at the cash register rather
than marking the change on the price tag, an accused would be
entitled to rely upon the reduced price as evidence of the
item’s value.

The evidence in the present case falls within the exception we
now recognize to the hearsay rule. Accordingly, we will affirm
the judgment of the Court of Appeals.

Affirmed.


JUSTICE KEENAN, with whom JUSTICE HASSELL joins, dissenting.

The majority effectively shifts the burden of proving the
value of the merchandise at issue in a grand larceny shoplifting
prosecution from the Commonwealth to a criminal defendant. In
declaring that the "tagged price" of merchandise
constitutes prima facie proof of its value, the majority
essentially requires a criminal defendant to prove his innocence
by disproving unreliable evidence of value.

The majority apparently has not attended a "red dot"
sale at Hecht’s Department Store, the retail merchant involved in
this appeal. It is common knowledge that, at these and other
comparable sales, price tags often bear three or four different
price markings. Under such circumstances, price tags are, if
anything, an inherently untrustworthy form of evidence.

Without acknowledging this problem, the majority simply
invites a criminal defendant, after hearsay "price tag"
evidence is admitted, to cross-examine the prosecution’s witness
or to present his own witnesses in an attempt to establish the
true retail value of the merchandise. The majority also leaves to
a defendant the burden of proving whether a further reduced price
would have been computed at the cash register. A holding that
places these evidentiary burdens on a criminal defendant violates
the principle cited by the majority that, in grand larceny
prosecutions, the Commonwealth bears the burden of proving the
value of merchandise taken beyond a reasonable doubt. See Walls
v. Commonwealth
, 248 Va. 480, 481, 450 S.E.2d 363, 364
(1994); Wright v. Commonwealth, 196 Va. 132, 139, 82
S.E.2d 603, 607 (1954).

Without identifying any necessity for its new exception to the
hearsay rule, the majority chiefly relies on the fact that other
jurisdictions have created such an exception. I respectfully
submit that such a rationale is without substance and should not
be the controlling basis for any decision of this Court. The
business records exception to the hearsay rule is alive and well
in Virginia. See, e.g., Kettler & Scott, Inc. v.
Earth Technology Companies, Inc.
, 248 Va. 450, 457, 449
S.E.2d 782, 785-86 (1994); Marefield Meadows, Inc. v. Lorenz,
245 Va. 255, 264, 427 S.E.2d 363, 368 (1993); Frye v.
Commonwealth
, 231 Va. 370, 387, 345 S.E.2d 267, 279-80
(1986). By proper use of that exception, the Commonwealth can
present evidence of value in grand larceny shoplifting cases.

Thus, I would reject the creation of a new exception to the
hearsay rule and hold that the hearsay evidence in question was
improperly admitted. Since the defendant has not assigned error
to the sufficiency of the evidence in support of his conviction,
I would remand the case for a new trial on the indictment should
the Commonwealth be so advised.

 

FOOTNOTES:

[1]
In a case not cited by the parties, the Supreme Court of Colorado
held that price tags constituted hearsay and were inadmissible
because no foundation testimony was presented to establish the
value of the stolen items or to show that the price tags were
accurate and prepared in the ordinary course of business so as to
bring them within the business records exception to the hearsay
rule. People v. Codding, 551 P.2d 192, 193 (Colo. 1976).
The Colorado legislature then enacted a statute providing that
price tags shall be prima facie evidence of value when theft
occurs from a store and that, in all cases where theft occurs,
hearsay evidence shall not be excluded in determining the value
of the thing involved. Colo. Rev. Stat. Sect. 18-4-414
(1985).

[2]
Cessna’s statement that "that’s what they’re
sold for," if based on his personal experience in the store
rather than a mere reading of the price tags, would not be
hearsay, but there is nothing in the record indicating that the
statement was based on such personal experience.

[3] The evidence involved in this
case does not fall within the business records exception to the
hearsay rule because no foundation was laid to establish
"the regularity of . . . [the] preparation" of the
price tags or the store’s reliance upon them "in the
transaction of [its] business." Automatic Sprinkler Corp.
v. Coley & Petersen, Inc.
, 219 Va. 781, 793, 250 S.E.2d
765, 773 (1979).

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