James Earl Jackson v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
JAMES EARL JACKSON
MEMORANDUM OPINION * BY
v. Record No. 1212-97-4 JUDGE NELSON T. OVERTON
OCTOBER 6, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge
Mandy M. Petrocelli, Assistant Public
Defender (Kristi A. Middleton, Assistant
Public Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
James Earl Jackson (defendant) appeals his conviction for
grand larceny, in violation of Code § 18.2-95(2). He contends
the evidence was insufficient to establish the value of the
women's clothing taken from a J.C. Penney department store.
Because we hold that the evidence was sufficient, we affirm.
The parties are fully conversant with the facts in the case
and because this memorandum opinion carries no precedental value,
no recitation of the facts is necessary.
We will reverse defendant's conviction only if it is plainly
wrong or without support in the evidence. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Defendant contends the trial court erroneously relied upon the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
testimony of two of J.C. Penney's loss prevention officers to
substantiate the value of the goods taken. He claims that the
officers did not have any independent knowledge of the value of
the goods and thus, they were unable to credibly testify to their
value. He asserts that the officers should not have used the
price tags from identical clothing to calculate the value of the
clothing he stole because those tags were hearsay.
"The value of the stolen property is measured as of the time
of the theft, and the original purchase price may be admitted as
evidence of its current value." Parker v. Commonwealth, 254 Va.
118, 121, 489 S.E.2d 482, 483 (1997). "[T]he general rule is
that opinion testimony of a nonexpert, who is not the owner of
the personal property in question, is admissible upon the subject
of property value, provided the witness possesses sufficient
knowledge of the value of the property or has had ample
opportunity for forming a correct opinion as to value." Walls v.
Commonwealth, 248 Va. 480, 483, 450 S.E.2d 363, 365 (1994). In
the instant matter, the officers took identical items of
clothing, photographed them, recorded their prices and calculated
their value to be over one thousand dollars. Unlike the
television sets in Walls, the items stolen were for sale and bore
price tags indicating their value. We hold that the actions
taken by J.C. Penney's loss prevention officers gave them
sufficient knowledge to establish the value of the stolen
merchandise, and their testimony was reliable and sufficient for
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that purpose.
Defendant's second argument, that the price tags themselves
were inadmissable hearsay, is easily disposed of. It is true
that the price tags were out-of-court statements offered in court
for the truth of the matter asserted therein. Therefore, the
tags were hearsay. See, e.g., C. Friend, The Law of Evidence in
Virginia § 18-1 (4th ed. 1993). However, the hearsay rule has
many exceptions including the business records, or "Modern
Shopbook," exception.
The business records exception provides that "'verified
regular entries may be admitted into evidence without requiring
proof from the regular observers or record keepers,' generally
limiting admission of such evidence to 'facts or events within
the personal knowledge of the recorder.'" Kettler & Scott v.
Earth Technology Cos., 248 Va. 450, 457, 449 S.E.2d 782, 785
(1994) (quoting "Automatic" Sprinkler Corp. v. Coley & Peterson,
Inc., 219 Va. 781, 792, 250 S.E.2d 765, 773 (1979)). To satisfy
the exception, the one offering hearsay must provide "proof that
the document comes from the proper custodian and that it is a
record kept in the ordinary course of business made
contemporaneously with the event by persons having the duty to
keep a true record." "Automatic" Sprinkler, 219 Va. at 793, 250
S.E.2d at 773.
The price tags at issue clearly fall within the exception.
J.C. Penney's loss prevention officers testified that the price
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tags arrive at the store attached to the merchandise. The tags
were placed on the merchandise in the ordinary course of business
by an employee of J.C. Penney at the time their price was
determined. The purpose of the tags is to record the value of
merchandise and track its sale. The tags are used by customers
and cashiers to indicate the price of the goods for sale and are
collected when the items are sold.
The actual recorder of the business record or the recorder's
supervisor need not testify in court as long as the witness is
someone who had access to the records and obtained them from the
place where they were properly kept in custody. See Sparks v.
Commonwealth, 24 Va. App. 279, 283, 482 S.E.2d 69, 71 (1997)
(citing French v. Virginian Ry. Co., 121 Va. 383, 387, 93 S.E.
585, 586 (1917)). In the instant matter, the loss prevention
officers had access to the tags in the place where they were
properly kept and the tags were taken from identical clothing
items, meaning that the items taken bore identical tags and
prices. In these circumstances, the tags fell within the
business records exception to the hearsay rule and were
admissible.
Because the testimony of the officers was admissible and
sufficient to show the value of the stolen merchandise,
defendant's conviction is affirmed.
Affirmed.
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