Virginia Lawyers Weekly VA Lawyers Weekly
Where the evidence against appellant in this petit larceny case included a “training receipt,” which the trial court admitted under the hearsay rule’s business records exception, the court reached the right result. However, the ruling is affirmed for a different reason.
Background
Appellant purchased two items at a Target store and left. Raabe, a Target asset protection employee, saw appellant return, pushing a shopping cart with two Target bags in it. Rabbe observed appellant putting an electric razor in the cart.
Rabbe began watching appellant with store’s security camaras. Appellant went through the store, placing various items in the cart. “Initially, appellant’s cart had bags and merchandise in the upper, or main, compartment, but appellant later moved bags from that compartment to the shelf underneath the cart.”
By the time he reached a self-service checkout area, he had manipulated the bags and merchandise so that “the bottom shelf loaded with bags, while the upper compartment had just a few items; the shirts, which had been clearly visible in the upper compartment before, were no longer visible in that compartment or the bottom shelf.”
At the checkout area, appellant briefly spoke to a woman. She showed him some clothes but did not hand anything to him. Appellant went into a self-checkout lane and purchased a shirt and some milk. Then he took bags from underneath the cart and put then in the top basket.
The woman appellant spoke with used the same register he did. “Although appellant stepped a few feet away from his cart, leaving it unattended, nobody put anything into his cart until he returned carrying several bags that he retrieved from the woman.
“When he returned to his cart, appellant lifted the bags out of his cart then walked out of the store, followed by the woman.”
Raabe and another employee apprehended appellant. “After identifying the items in appellant’s possession that had not been paid for, Raabe used a scanner in ‘training mode’ to print a ‘training receipt’ that listed those items along with their value after any discounts.”
Appellant tried to leave and resisted attempts to handcuff him. The employees eventually succeeded in restraining appellant. Police officers arrived at that point.
Trial
At trial Raabe testified that appellant did not pay for most of the items in the shopping cart. After Raabe identified those items, he prepared a “training receipt” by scanning the bar codes on the unpaid merchandise. The training receipt records the same information as a normal cash register but does not affect the store’s sales records.
He also testified that the woman appellant spoke with could not have paid for some of the items because she and appellant were only briefly together.
A jury convicted appellant of petit larceny, third offense. He received a three-year sentence.
Hearsay
“Appellant argues the ‘training receipt’ was inadmissible hearsay because it contained information that came from Target’s system rather than Raabe’s personal knowledge and did not meet the criteria for the business record exception to the rule against hearsay.”
Appellant claimed that because the training receipt was the only evidence of what was stolen, admitting the receipt was not harmless error.
“We need not decide whether the training receipt was a business record.” Under the right result different reason doctrine, we affirm the trial court’s result “ because the record demonstrates that [the training receipt] was admissible under this Court’s opinion in Twine v. Commonwealth, 48 Va. App. 224 (2006).
“In Twine, we held that ‘the price tag exception to the hearsay rule in shoplifting cases … permits the admission into evidence of a cash register receipt generated by scanning the bar codes on the stolen items of merchandise.’ …
“[I] in this case, the evidence established that Raabe generated the receipt by scanning the bar codes of the items for which appellant had not paid.”
Although appellant attempts to distinguish Twine by highlighting that Raabe set the cash register to ‘training mode’ and thereby created a ‘training receipt,’ that is a distinction without significance.
“Raabe explained that the training receipts accessed the same information in the ‘Target system’ as a normal receipt, with the only distinction being that they do not affect the records of the store’s sales.
Under Twine, the training receipt was admissible evidence. .
Sufficient evidence
Appellant argues there was insufficient evidence to convict him.
“[A]ppellant argues that he did not commit a taking by removing the items from the store shelves or shifting items in his cart. …
“‘[L]arceny requires that there be a taking and asportation of the seized goods, coupled with an intent to steal those goods. … A trespassory taking is a taking or removal of possession of property from the owner with felonious intent. …
“‘A trespassory taking is most easily proven by a defendant leaving the store without paying for merchandise.’
“A defendant, however, ‘may be said to have taken another’s property by trespass though he has not removed it from the other’s premises or from his presence.’”
Code § 18.2-103 provides that the “willful concealment of goods or merchandise of any store … while still on the premises thereof, shall be prima facie evidence of an intent to convert and defraud the owner thereof out of the value of the goods or merchandise.”
When appellant hid the items he did not pay for, he committed a trespassory taking.
Other evidence
“[A]lthough Raabe did not see appellant hide every item, his testimony and the videos demonstrated that appellant placed numerous items into his cart as he moved throughout the store but paid for only two items before leaving the store with the rest in bags[.]”
Appellant’s attempt to flee provides more “‘evidence of guilt.’ … Finally, the record demonstrated that appellant and the woman were together for no more than a few moments and that she did not do anything to appellant’s cart or its contents. …
“‘The Commonwealth need exclude only reasonable hypotheses of innocence that “flow from the evidence itself, and not from the imagination” of the defendant.’”
Affirmed.
Walker v. Commonwealth, Record No. 0676-21-4, May 3, 2022. CAV (Clemens) from the Circuit Court of Fairfax County (Tran). Joseph J. Collins III for appellant. Susan Brock Wosk for appellee. VLW 022-7-120, 10 pp. Unpublished opinion.
