Tony Jermaine Walker v. Commonwealth of Virginia ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Senior Judge Bumgardner
Argued at Chesapeake, Virginia
TONY JERMAINE WALKER
MEMORANDUM OPINION * BY
v. Record No. 2931-08-1 JUDGE RUDOLPH BUMGARDNER, III
JANUARY 26, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
John E. Robins, Jr. (Office of the Public Defender, on briefs), for
appellant.
Erin M. Kulpa, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.
Tony Jermaine Walker appeals his conviction of grand larceny of an automobile, Code
§ 18.2-95. He contends he was denied his right of confrontation and the evidence was
insufficient. Finding no error, we affirm the conviction.
We examine the evidence in the light most favorable to the Commonwealth, granting to it
all reasonable inferences that are fairly deducible. See Haskins v. Commonwealth, 31 Va. App.
145, 149-50, 521 S.E.2d 777, 779 (1999). A 2004 Toyota Sienna minivan disappeared from the
parking lot where the owners had left it. Later the same day, the police found the defendant
unconscious, in the van, stuck in a ditch. He claimed he had seen someone drop the keys, and he
picked them up and drove the van away.
At trial, the Commonwealth proved value of the stolen van by introducing a National
Automobile Dealers’ Association (NADA) “blue book.” It listed four separate categories for the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
2004 Toyota Sienna model. All 2004 Toyota Sienna vans in each category had a value of more
than $200. 1
The defendant maintains introduction of the “blue book” violated his right to confront the
witnesses against him as interpreted in Crawford v. Washington, 541 U.S. 36, 68 (2004), and
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009). He further maintains the
evidence was insufficient because the proof of value only established the value of a class of
vehicles but not the value of the particular type of vehicle stolen.
Code § 8.01-419.1 specifically authorized the use of the NADA “blue book” to prove fair
market value of the vehicle stolen.2 Riner v. Commonwealth, 268 Va. 296, 601 S.E.2d 555(2004), noted that the United States Supreme Court had “indicated that business records are a
type of hearsay ‘that by their nature [are] not testimonial.’” Id. at 322-23, 601 S.E.2d at 570
(quoting Crawford, 541 U.S. at 56). Subsequently, Melendez-Diaz stated: “Business and public
records are generally admissible absent confrontation not because they qualify under an
exception to the hearsay rules, but because — having been created for the administration of an
entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are
not testimonial.” Melendez-Diaz, 129 S. Ct. at 2539-40. See also Michels v. Commonwealth,
1
The defendant was convicted under Code § 18.2-95: “Any person who . . . commits
simple larceny not from the person of another of goods and chattels of the value of $200 or more
. . . shall be guilty of grand larceny . . . .”
2
Code § 8.01-419.1 provides:
Whenever in any case not otherwise specifically provided
for the value of an automobile is in issue, either civilly or
criminally, the tabulated retail values set forth in the National
Automobile Dealers’ Association (NADA) “yellow” or “black”
books or any vehicle valuation service regularly used and
recognized in the automobile industry that is in effect on the
relevant date, shall be admissible as evidence of fair market value
on the relevant date.
-2-
47 Va. App. 461, 469, 624 S.E.2d 675, 680 (2006) (finding documents that are “not by their
nature accusatory and do not describe any criminal wrongdoing of the defendant,” but “are a
neutral repository of information,” do not constitute “testimonial” hearsay for Sixth Amendment
purposes).
The NADA publication was a repository of information compiled for uses other than in
litigation; it was not accusatory. Guides prepared by the NADA are “intended . . . to assess the
values of various vehicles.” N.A.D.A. Services Corp. v. Business Data of Virginia, Inc., 651
F. Supp. 44, 47 (E.D. Va. 1986). As such, it was not testimonial evidence, and its admission did
not violate the Sixth Amendment. The trial court did not err in admitting the Commonwealth’s
exhibit.
The defendant argues that even if the NADA book was admissible, the evidence was still
insufficient to prove the stolen vehicle was worth $200 or more. He maintains the trial court did
not identify the particular model of the vehicle when relying on the values listed in the NADA
book. He contends the evidence only established the value of a class of vehicles but not the
value of the particular vehicle stolen, which was an essential element of the offense.
When referring to the values listed in the book, the trial court noted that all categories for
the van had a value greater than $200. If all categories of 2004 Toyota Siennas had values that
exceeded $200, the specific type stolen had a value that exceeded $200. Thus, the evidence
proved beyond a reasonable doubt that the stolen vehicle had to have a value that exceeded $200.
Accordingly, we affirm the conviction.
Affirmed.
-3-