At defendant’s grand larceny trial for the theft of jeans pants, the trial court erred under the best evidence rule when it admitted into evidence a Kohl’s loss prevention supervisor’s testimony about the price tags affixed to the stolen jeans; the Court of Appeals reverses defendant’s grand larceny conviction under Va. Code § 18.2-95.
Given the circumstances in this case, our holding here is based on the best evidence rule. Under Robinson v. Commonwealth, 258 Va. 3 (1999), defendant’s best evidence was properly sustainable under the requirements of the best evidence rule. That rule provides that where the contends of a writing are desired to be proved, the writing itself must be produced or its absence sufficiently accounted for before other evidence of its contents can be admitted.
As the Supreme Court and the General Assembly have made clear, in order to overcome defendant’s best evidence objection to the commonwealth’s request to admit the evidence concerning the contents of the price tags, the commonwealth needed to produce into evidence the price tags themselves – or needed to provide an explanation why the price tags were unavailable at trial. It is clear from the context of the record in this particular case, however, that the supervisor was testifying as to the specific content of the price tags, and therefore, the best evidence rule applied here.
The supervisor’s testimony, both before defendant’s objection and after the objection was overruled – establishes that the best evidence rule applies here because his testimony was based on the contents of the price tags. The supervisor ultimately testified that each pair of jeans cost “$54 even, not including tax, so 54 times 4.) However, shortly before answering this question, the supervisor had again referred to the price tags, indicating that he knew the jeans were from Kohl’s because of the store name on the tags.
The record supports the conclusion that the value of the jeans was based on the supervisor’s recollection of what the price tags showed. Consequently, because the supervisor was testifying as to the content of the price tags, the best evidence rule required the commonwealth either to produce those price tags or to provide an explanation as to why the price tags were unavailable. Since the commonwealth did not produce the price tags at trial or give an explanation as to why the price tags were not available, the best evidence rule barred the supervisor’s testimony concerning the price of the stolen jeans because his testimony was based on the price tags.
Because the commonwealth did not produce the price tags, did not account for the unavailability of the price tags, and did not show that the supervisor had an independent basis for knowing the value of the stolen jeans, the trial court erred in allowing the supervisor to testify as to the price of the jeans.
Reversed and remanded.
Watkins v. Commonwealth (Beales) No. 1558-13-1, July 22, 2014; Chesapeake Cir.Ct. (Kushner) William J. Holder, APD, for appellant; Elizabeth C. Kiernan, AAG, for appellee. VLW 014-7-234(UP), 8 pp.