Virginia Lawyers Weekly VA Lawyers Weekly
Testimony by a police officer that he informed defendant a supermarket manager had barred defendant from the store premises was inadmissible hearsay on the point of whether defendant had been informed of the ban by authorized personnel, and the Court of Appeals says admitting the officer’s hearsay statement was not harmless error.
The challenged statement was the officer’s testimony that he approached defendant and informed him that the manager no longer wanted him on the supermarket premises. At trial, defendant objected to this testimony, arguing it was hearsay that the store manager had barred defendant from the premises.
The city contends this statement was not hearsay because it was not offered to prove the truth of the matter asserted. The ordinance under which defendant was charged with trespass, Hampton Code § 24-33, requires proof that defendant went upon or remained upon the premises after having been forbidden to do so. The truth of the challenged statement was that the store manager had forbidden defendant from remaining on the store’s premises. Considering the context of this statement, and the fact that the truth of the statement goes directly to proving a required element under Code § 24-33, this court holds it was admitted for its truth and was therefore inadmissible hearsay.
The error was not harmless, as this court cannot say with fair assurance that the judgment was not substantially swayed by the error. The officer’s testimony was not that he barred defendant from the premises, but that he informed defendant the store manager had barred him from the premises. Without this testimony, there is no other evidence to prove that defendant had been forbidden from remaining upon the premises by a person lawfully in charge thereof.
While this court affirms the trial court’s denial of defendant’s motions to strike, we hold that the trial court abused its discretion by admitting inadmissible hearsay into evidence.
Reversed and remanded.
Stackfield v. City of Hampton (Huff) No. 1753-14-1, Dec. 8, 2015; Hampton Cir.Ct. (Taylor) Charles E. Haden for appellant; Graham M. Stolle, Ass’t City Att’y, for appellee. VLW 015-7-335(UP), 9 pp.
