Robertson v. Commonwealth , 60 Va. App. 688 ( 2012 )

HUFF, Judge.

Latoya Mrytrise Robertson (“appellant”) appeals her conviction of felony shoplifting, in violation of Code § 18.2-103. Following a bench trial in the Circuit Court of Pittsylvania County (“trial court”), appellant was sentenced to two years’ incarceration, with all but sixty days suspended. On appeal, appellant argues that the trial court violated her right to confrontation when it admitted two exhibits to establish the value of the shoplifted merchandise without providing her an opportunity to cross-examine the exhibits’ author. Appellant further argues that the trial court erred in finding the evidence sufficient to convict her of felony shoplifting in that the improperly admitted exhibits constituted the sole basis for finding that the merchandise had a value of at least $200. For the following reasons, we reverse the trial court’s judgment and dismiss appellant’s conviction of felony shoplifting.

I. BACKGROUND

“Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below.” Banks v. Commonwealth, 41 Va.App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence established that on January 7, 2010, Malinda Holcomb (“Holcomb”), the manager of a Family Dollar Store in Brosville, observed appellant enter the checkout line at the store. After appellant purchased a large opaque storage bin and a small drink, appellant kept the storage bin in her shopping cart and traveled back down the store aisles.

Based on appellant’s behavior, Holcomb grew suspicious and followed appellant to the back of the store. Holcomb saw appellant speaking to another female shopper who had a plastic storage bin in a shopping cart that was identical to the storage bin appellant had just purchased. Holcomb observed the female shopper placing merchandise into the unpurchased storage bin. At that point, Holcomb offered to hold appellant’s purchased storage bin at the front of the store. Appellant, however, replied that she was preparing to leave, and so Holcomb returned to the front of the store.

Approximately twenty minutes later, Holcomb saw appellant hurriedly approach the store exit. Holcomb told appellant, “I need to check your tote” to “make sure it’s still empty.” Holcomb then lifted the lid of the storage bin and found numerous unpurchased items inside. After telling appellant to leave the store, Holcomb instructed a cashier, Ashley Henderson, to contact the police. The other female shopper left the store shortly thereafter.

Taking appellant’s storage bin back to a cash register, Holcomb and another employee, Cynthia Dishman (“Dish-man”), conducted an inventory of the unpurchased items in the bin. To do so, Holcomb first took each item out of the bin and placed it on the counter. Dishman then prepared a handwritten list identifying each item of merchandise, and beside each entry she recorded the price that showed on the cash register’s screen when she scanned each item. When Dishman had scanned all of the items and recorded them on the paper, Holcomb totaled the prices to obtain a sum of $235.10. Although Holcomb supervised the operation, she admitted that she did not personally observe the notations on Dishman’s handwritten list to make certain of the list’s accuracy.

On April 23, 2011, Marcus Jones, an investigator for the Pittsylvania County sheriffs office who had initially responded to the 9-1-1 call from the store, requested confirmation of the value of the merchandise recovered from the storage bin. To confirm the value of the items, Holcomb supervised Dishman as Dishman generated a voided receipt on the cash register, using the handwritten inventory of items for reference. The total value on the receipt reflected reduced prices on various discontinued items, which Holcomb circled on the receipt and noted at trial.

Appellant objected at trial to the admission of the handwritten inventory (admitted as Exhibit 1) on the ground that the person who had prepared the document was not subject to cross-examination. Appellant also objected to the admission of the voided receipt (admitted as Exhibit 2) on the same ground because the receipt had been generated using the handwritten inventory as a reference. The trial court allowed voir dire on the admissibility of both exhibits, the pertinent parts of which follow:

[Holcomb]: I’m the one that removed [the items] from the tote to the buggy and then I took them out of the buggy and put them up on the counter for [Dishman] to write it down.

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[Appellant’s counsel]: Were any safeguards made ...?

[Holcomb]: [I]f we had, if it was multiples we put it together and then [Dishman] scanned the one to get the price and then she would write times two, or times four or whatever.

[Appellant’s counsel]: Now to be fair, you, after each entry, you didn’t look down to see if she wrote the right, I mean were you, were you able to see for each item what was, what was popping up on the, on the screen?

[Holcomb]: Yes, I was.

[Appellant’s counsel]: On the register?

[Holcomb]: Yeah.

[Appellant’s counsel]: And, and did you, I mean, truthfully did, did, did you, for each item that she was writing down, were you verifying in any way that that was the, the, the correct figure that was showing at the, on the register screen at that time?

[Holcomb]: Yes, I pretty much know most of those, you know, are correct.

[Appellant’s counsel]: Well, my, my question is, did, at the time that she was preparing this document ... did you make sure that she wrote down for the figure to the right of that ... what was showing up on the register.

[Holcomb]: Probably not.

[Appellant’s counsel]: And then the attached receipt to this handwritten document is, you just went down the right side and then just totaled those numbers up, is that correct? [Holcomb]: Right....

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[Appellant’s counsel]: [B]ut you were working off the sheet that [Dishman] had prepared?

[Holcomb]: Right.

[Appellant’s counsel]: Okay. As to Exhibit number 2....

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[Appellant’s counsel]: And again ... did [Dishman] create this and then you signed off on it?____

[Holcomb]: Yeah, that’s her number. Yeah, she, it was on her register.

******

[Appellant’s counsel]: You had nothing to do with creating this. You just signed off on it.

[Holcomb]: I was with [Dishman] when she did that.

At the conclusion of the voir dire, the trial court overruled appellant’s objection and determined that the evidence was admissible, but noted “[Holcomb] admits she didn’t look every time ... [Dishman] wrote it down to make sure it [the handwritten list] was accurate.” The trial court also overruled appellant’s motion to strike the evidence and renewed motion to strike at the conclusion of her case, and found appellant guilty of felony shoplifting. This appeal followed.

II. ANALYSIS

Appellant contends that the trial court violated her right to confrontation when it admitted two of the Commonwealth’s exhibits, a handwritten inventory and a voided store receipt, to prove the value of the merchandise. Appellant further contends that the trial court erred in finding the evidence sufficient to convict her of felony shoplifting on the basis that the evidence proving the items’ value was $200 or more was unlawfully admitted.

A. Right to Confrontation

Appellant first contends that the trial court violated her right to confrontation when it admitted the handwritten inventory and the voided store receipt.

Where there is “a question of law as to the admissibility of evidence, we apply a de novo standard of review.” Walker v. Commonwealth, 281 Va. 227, 280, 704 S.E.2d 124, 126 (2011) (citation omitted).

“The Confrontation Clause of the Sixth Amendment to the United States Constitution mandates that ‘in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’” Wimbish v. Commonwealth, 51 Va.App. 474, 480, 658 S.E.2d 715, 718 (2008) (quoting U.S. Const. amend. VI). “[T]his bedrock procedural guarantee applies to both federal and state prosecutions.” Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004) (citing Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965)).

However, “a defendant’s right to confrontation only applies to testimonial hearsay.... ” Wilder v. Commonwealth, 55 Va.App. 579, 589, 687 S.E.2d 542, 547 (2010). “ ‘Testimony’ ... is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Crawford, 541 U.S. at 51, 124 S.Ct. at 1364 (citation omitted). “Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Id. at 59, 124 S.Ct. at 1369.

The Commonwealth bears the burden to show that the evidence it offers meets constitutional requirements. “Generally, when a specific objection is made to evidence or when inquiry is made by the trial judge concerning the purpose of evidence, the proponent of the evidence has the burden of establishing its admissibility.” Neal v. Commonwealth, 15 Va.App. 416, 420, 425 S.E.2d 521, 523 (1992). This principle certainly applies when a party raises a constitutional objection to proffered evidence. See, e.g., Shell v. Commonwealth, 11 Va.App. 247, 251, 397 S.E.2d 673, 675 (1990) (noting that in the Fifth Amendment context, “[i]n order for a confession to be admissible, the Commonwealth bears the burden of proving the defendant voluntarily made a knowing and intelligent waiver of his constitutional privilege against self-incrimination and his right to counsel”).

In addition, “error involving the Sixth Amendment’s Confrontation Clause is subject to constitutional harmless error analysis.” Crawford v. Commonwealth, 281 Va. 84, 101, 704 S.E.2d 107, 117 (2011) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)); see Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438 (“The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”). “[I]n conducting a constitutional harmless error analysis, ‘[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Crawford, 281 Va. at 100, 704 S.E.2d at 117 (citation omitted). “ ‘Whether ... an error is harmless in a particular case depends upon a host of factors ... [including] whether [that evidence] was cumulative, [and] the presence or absence of evidence corroborating or contradicting the [tainted evidence] on material points....’” Id. at 101, 704 S.E.2d at 117-18 (citations omitted).

We note at the outset that the two exhibits which were admitted to prove the value of the items constituted testimonial evidence. Dishman, with Holcomb’s assistance and supervision, prepared the handwritten inventory immediately following appellant’s attempt to leave the store with unpurchased items in her shopping cart. Dishman, the author of the handwritten list, was the declarant of the testimonial hearsay which was offered into evidence. The primary purpose of the handwritten inventory was to prove the value of the items appellant had attempted to take. Holcomb and Dishman subsequently created a voided store receipt to confirm the value of the items. Both the handwritten inventory and the voided store receipt established that the value of the items was at least $200, which was relevant to appellant’s prosecution for felony, rather than misdemeanor, shoplifting. As such, the evidence was testimonial in nature so as to fall within the purview of the Confrontation Clause.

In turning to whether the admission of the evidence violated appellant’s right to confrontation, Holcomb testified that she supervised Dishman, who recorded the handwritten inventory and “rang up” the voided receipt. With regard to the handwritten inventory, Holcomb testified that she “removed [the items] from the tote to the buggy,” but that Dishman recorded the items along with their quantity and prices on the piece of paper. Holcomb also admitted that she did not verify that Dishman wrote down the correct item and price for each item scanned, nor did she confirm that the correct quantity of each item was recorded. In ruling on the evidence, the trial court found that “[Holcomb] didn’t look every time ... to make sure it [the handwritten list] was accurate.”¹

Also, with regard to the voided receipt, Holcomb testified that she and Dishman referenced the handwritten inventory for a list of the items. Based on the list of items that Dishman had recorded by hand, Holcomb and Dishman conducted a new price inquiry for each item. The cash register then computed the total value of the merchandise, which included the discounts for various discontinued items. Although Holcomb “was with” Dishman and “signed off’ on the completed receipt, Holcomb did not personally create the receipt. Furthermore, the printed cash register receipt was derived from Dishman’s handwritten list, and showed that the total value of the merchandise was at least $200. Holcomb testified that she neither created nor confirmed the accuracy of the handwritten inventory and the voided receipt, and appellant was not given a previous opportunity to cross-examine Dishman, the exhibits’ declarant, regarding the evidence of the value of the items.

The exhibits establish two discrete propositions. The first proposition the exhibits establish is that a particular set of items was stolen. The second proposition is that those items had a particular value. It is impossible to prove the value of stolen items unless one knows what the items are. There was no witness at trial who actually testified as to what items were stolen or what their value was. The two exhibits were introduced as the only evidence to prove both of these crucial facts. In order for the exhibits to pass constitutional muster, the requirements of the Confrontation Clause must be satisfied as to both of these testimonial propositions.

However, the person making these testimonial statements in the exhibits was not the person who testified at trial. The record does not support the supposition that Holcomb was the declarant of these statements in the exhibits. In her direct testimony, Holcomb stated that she participated in taking the stolen items out of the buggy and putting them on the counter, but that it was Dishman who actually ran the price inquiry on the register and “wrote it down.” On cross-examination, Holcomb expressly stated regarding Exhibit 1, “That’s [Dish-man’s] handwriting.” Furthermore, regarding the prices recorded beside each of the items listed, Holcomb could not testify that she personally knew each of those entries was correct. At one point, she asserted, “I pretty much know most of those, you know, are correct.” However, when defense counsel immediately followed up by asking Holcomb whether she made sure that Dishman accurately recorded each item’s price as she went along, Holcomb responded, “[p]robably not.” Moreover, with respect to Exhibit 2, Hoicomb testified that Dishman created that exhibit from the prior handwritten list (Exhibit 1).

This testimony demonstrates that the individual making the testimonial statements contained in the exhibits was Dishman and not Holcomb. Holcomb did not testify as to what the specific items were that were stolen, nor did she testify that she knew each of the items on the list was properly recorded by someone she observed accurately making each entry. Furthermore, she did not recite the prices of the items listed based on her own personal knowledge, nor did she testify that she observed Dishman accurately recording each price as it was shown on the register screen. Her testimony was limited to establishing how Dishman created the documents; she did not verify the contents and accuracy of the documents, and they were not offered as Holcomb’s past recollection recorded.² Thus, the only evidence establishing the identity and value of the stolen items consisted of written testimonial statements made not by the person testifying in court, but by an absent individual who was not subject to cross-examination.³ Thus, viewing the evidence in the light most favorable to the Commonwealth, the Commonwealth failed to show that the exhibits here satisfied the Confrontation Clause’s requirements.⁴

In the wake of Crawford v. Washington and its progeny, the Supreme Court of Virginia has instructed that the Sixth Amendment’s right to confrontation requires an opportunity for cross-examination of any witness whose “ ‘deelaration[s] or affirmation^] made for the purpose of establishing or proving some fact’ ” are being offered into evidence. Aguilar v. Commonwealth, 280 Va. 322, 333, 699 S.E.2d 215, 220 (2010) (citation omitted); see Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006) (“[Statements] are testimonial when ... the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”); see also Bullcoming v. New Mexico, — U.S. -, 131 S.Ct. 2705, 2717, 180 L.Ed.2d 610 (2011) (“A document created solely for an ‘evidentiary purpose,’ ... made in aid of a police investigation, ranks as testimonial.” (citation omitted)). While the requirement of an opportunity for cross-examination does not extend to every incidental participant who assisted in the process or analysis culminating in the testimony being offered, such requirement is mandated as to the declarant of the testimonial evidence. See generally Bullcoming, at -, 131 S.Ct. 2705. Here, the author (declarant) of the handwritten list was not subject to cross-examination. Surrogate testimony was offered by a supervisor who assisted in the process, but did not observe or participate in the creation of the handwritten notations, and therefore was unable to verify the accuracy of the list which was offered into evidence and which was the basis for the voided receipt exhibit.⁵ The supervisor’s role was incidental to the creation of the exhibits; Dishman, however, was the declarant of the statements made by the two exhibits. Accordingly, the Sixth Amendment right of confrontation guaranteed an opportunity to cross-examine the declarant, Dishman.

This case is controlled by Bullcoming, not by Aguilar. In Bullcoming, the United States Supreme Court reaffirmed the general principle that “[a]s a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” — U.S. at -, 131 S.Ct. at 2713. The Court held that “the testimonial statement of one witness ... [cannot] enter into evidence through the in-court testimony of a second [person].” Id. at -, 131 S.Ct. at 2715. The Court noted that the analyst in that case had “certified to more than a machine-generated number,” id., and that the representations contained in his certification were “meet for cross-examination,” id. at -, 131 S.Ct. at 2714.

Similarly, the testimonial exhibits in this case constituted more than simply machine-generated numbers. As explained above, the exhibits contained testimonial assertions both as to what items were in fact stolen and as to what the value of those particular items was. The assertion that “this is an accurate list and valuation of what the defendant stole” is most emphatically “meet for cross-examination.” See id. Accordingly, the testimonial statement of Dishman should not have entered into evidence through the in-court testimony of Holcomb. See id. at -, 131 S.Ct. at 2713.

It is true that the individual who provided in-court testimony in Bullcoming “did not sign the certification or personally perform or observe the performance of the test reported in the certification.” Id. As the dissent points out, Holcomb did exercise some degree of observation over Dish-man’s activities in this case. See infra at 711-12, 732 S.E.2d at 42. However, this is a superficial and immaterial distinction on the facts of this case. The Court in Bullcoming noted that the person who testified in court “acknowledged that ‘you don’t know unless you actually observe the analysis that someone else conducts, whether they [sic] followed th[e] protocol in every instance.’ ” — U.S. at - n. 8, 131 S.Ct. at 2715 n. 8 (alteration in original).⁶ Here, Holcomb did not observe Dishman’s activities sufficiently to know whether she was accurately recording the entries in each instance. The entries are Dishman’s statements, not Holcomb’s, and the level of “observation” Holcomb exercised over Dishman’s activities was inadequate to remove the concerns underlying the right of cross-examination under the Confrontation Clause. For, as the United States Supreme Court has explained, “the [Confrontation] Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.” Id. at -, 131 S.Ct. at 2716. Simply put, “the opportunity to confront a substitute witness [does not satisfy the Sixth Amendment].” Id. Holcomb was merely a substitute witness whose in-court testimony did not satisfy the requirements of the Sixth Amendment.⁷

This case is simply not analogous to Aguilar. In Aguilar, “the only ‘declaration^]’ or ‘affirmation[s]’ contained in the admitted certificates of analysis were [those of the person who actually testified in court].” 280 Va. at 333, 699 S.E.2d at 220 (first two alterations in original). In concluding there was no Confrontation Clause violation in that case, the Supreme Court noted that the certificates of analysis that were admitted “did not contain the results of [the first non-testifying examiner’s] work product in any form, much less her ‘declaration[s]’ or ‘affirmation[s].’” Id. at 333, 699 S.E.2d at 221 (second and third alterations in original). Nor did they “contain any notes or reports [the second non-testifying technician] might have generated during the course of her work; and they did not report any factual findings [she made] about the DNA analysis.” Id. at 334, 699 S.E.2d at 221. Simply put, the testimony presented in Aguilar was solely that of the witness, not that of the absent parties. Here, in contrast, the challenged exhibits are the “work product,” “notes,” “reports,” and “factual findings” of Dishman, not Holcomb. Thus, under the standard set forth in Bullcoming, Dishman’s live testimony in court was necessary to render the exhibits admissible under the Sixth Amendment.

The dissent quotes the United States Supreme Court’s statement in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n. 1, 129 S.Ct. 2527, 2532 n. 1, 174 L.Ed.2d 314 (2009), that “we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.” Infra at 709, 732 S.E.2d at 40. However, this case is not about establishing chain of custody, showing authenticity of material used, or proving accuracy of a device or machine. Rather, this case is about the personally prepared documents of an out-of-court declarant that contain testimony regarding what items were stolen and what their value was.

Since Holcomb did not prepare either of the exhibits or testify that she observed Dishman accurately preparing either exhibit, Holcomb’s testimony and presence in court was inadequate to satisfy the requirements of the Confrontation Clause of the Sixth Amendment. Accordingly, both of the exhibits were improperly admitted.

Having determined that the trial court erred in admitting the evidence in violation of appellant’s confrontation right, we next consider whether that error was harmless. Crawford, 281 Va. at 101, 704 S.E.2d at 117. The Commonwealth argues that any error occurring as a result of the admission of the handwritten list was cured by the admission of the voided receipt, which relied on the cash register to generate the value of the merchandise. However, as we addressed above, the receipt was derived from the handwritten list of items and thus suffers from the same constitutional defect. Furthermore, these two exhibits together constituted the only evidence proving the value of what appellant stole. Thus, their admission was not harmless error.

B. Sufficiency of the Evidence

Appellant also contends that the trial court erred in finding the evidence sufficient to convict her of felony shoplifting on the basis that the evidence admitted to prove the value of the items was unlawfully admitted.

In a challenge to the sufficiency of the evidence on appeal, “we determine whether the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense.” Haskins v. Commonwealth, 31 Va.App. 145, 149-50, 521 S.E.2d 777, 779 (1999). “Furthermore, ‘we presume the judgment of the trial court to be correct,’ and ‘will not set it aside unless it is plainly wrong or without evidence to support it.’ ” Davis v. Commonwealth, 39 Va.App. 96, 99, 570 S.E.2d 875, 876-77 (2002) (citations omitted).

Code § 18.2-103 provides, in relevant part, that

[wjhoever, without authority, with the intention of converting goods or merchandise to his own or another’s use without having paid the full purchase price thereof, or of defrauding the owner of the value of the goods or merchandise, (i) willfully conceals or takes possession of the goods or merchandise of any store or other mercantile establishment ... when the value of the goods or merchandise involved in the offense is less than $200, shall be guilty of petit larceny and, when the value of the goods or merchandise involved in the offense is $200 or more, shall be guilty of grand larceny.

We note at the outset that the Supreme Court of Virginia has limited the quantum of evidence that we may consider in reviewing sufficiency of the evidence claims to “ ‘[a]ny evidence properly admitted at trial.’ ” Crawford, 281 Va. at 112, 704 S.E.2d at 123 (citation omitted). Under this standard, “an appellate court may not consider evidence illegally admitted at trial. To hold otherwise would circumvent on appeal the Constitutional protections provided to a defendant at trial.” Id. at 112, 704 S.E.2d at 123-24; see Rushing v. Commonwealth, 284 Va. 270, 726 S.E.2d 333 (2012) (applying the standard articulated in Crawford to non-constitutional error).

Applying these principles, the evidence was insufficient to prove that the value of the merchandise was at least $200 in absence of the erroneously admitted exhibits. Because no other evidence was admitted to prove the value of the merchandise, the Commonwealth has not proved a requisite element of felony shoplifting under Code § 18.2-103. Thus, we hold that the evidence properly admitted at trial was insufficient to support appellant’s conviction.

III. CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court and dismiss appellant’s conviction of felony shoplifting, entering final judgment here.⁸

Reversed and final judgment.

1 . Contrary to the suggestion in the dissent, Holcomb, by her own testimony, admitted that she was not competent to vouch for the accuracy of the exhibits.

2 . The dissent argues that because Holcomb knew that some of the prices recorded on Exhibit 1 were correct, any lack of specificity goes only to the weight to be assigned the exhibit, not its admissibility. See infra at 705-06, 732 S.E.2d at 38-39. However, this argument assumes that Holcomb was in fact the one giving the testimony contained in the exhibit. This assumption is belied by the fact that Holcomb did not testify that the exhibit was an accurate recording of either the identity of the items or their value as displayed on the cash register screen, nor did she have an independent recollection of the sixty-seven items listed on the exhibit or personal knowledge of their value.

3 . Indeed, the Commonwealth’s original argument for the admissibility of the exhibits in the trial court was based on the shopbook rule, Virginia's iteration of the business records exception to the hearsay rule. Cf. Twine v. Commonwealth, 48 Va.App. 224, 629 S.E.2d 714 (2006). This argument presumes that the documents were in fact hearsay, since there is no need to argue for the application of an exception to the hearsay rule unless the hearsay rule actually applies. Thus, even the Commonwealth originally treated the exhibits as the statements of an out-of-court declarant, i.e., Dishman, rather than as the statements of Holcomb.

4 . Both the direct and the cross-examination of Holcomb provide a confused and, at times, contradictory picture of the extent of her participation in the creation of both exhibits, as well as her personal knowledge of their contents. The Commonwealth bore the burden to establish that the exhibits were admissible under the Confrontation Clause. Despite this burden, the Commonwealth conceded at trial that Holcomb was "not proofreading or double[-]checking everything that was going on,” and the trial court found that "she can't testify she followed every number that was written down.” Accordingly, the Commonwealth failed to meet its burden of proving that Holcomb either created or personally verified the contents of either exhibit.

5 . We distinguish these facts from the Supreme Court’s recent decision in Williams v. Illinois, -U.S. -, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). Williams addressed the authority of an expert witness to incorporate assumed facts into her opinion testimony at a bench trial, where the assumed facts were derived from laboratory work in which the expert witness had no involvement. Id. at -, 132 S.Ct. at 2227. A plurality of the Supreme Court held in Williams that a Confrontation Clause violation had not occurred because the expert witness’ testimony had not sought to establish the truth of the facts on which she relied in forming her opinion. Id. at -, 132 S.Ct. at 2239-40. The plurality further noted that the laboratory report was outside of the ambit of the Confrontation Clause as it was generated "before any suspect was identified,” and thus was not "sought ... for the purpose of obtaining evidence to be used against [the] petitioner.” Id. at -, 132 S.Ct. at 2228. Here, by contrast, Holcomb used Dishman’s out-of-court statements, memorialized in the two exhibits, to testify as to the truth of the value of the stolen merchandise. Moreover, the exhibits themselves were created for the purpose of prosecuting appellant for shoplifting. Thus, we find Williams inapplicable to the present case.

6 . In the present case, there is no evidence that there was any protocol at all for making lists of stolen items and their value. Thus, the opportunity to cross-examine the person who made the list—Dishman— is even more important than it might otherwise be, since no one can even say that she followed a set protocol established to ensure reliability or evaluate such a protocol. This was a one-time, out-of-the-ordinary event that Holcomb and Dishman dealt with in an apparently ad hoc manner.

7 . The dissent concludes the contents of the exhibit were admissible simply because Holcomb observed the process by which the exhibit was created, regardless of her lack of knowledge of its accuracy. See infra at 716-17, 732 S.E.2d at 44. This conclusion is similar to suggesting that a police officer could introduce a transcript of a defendant’s statement to another officer simply because he watched a muted video of the interrogation. Such a procedure would run afoul of the Sixth Amendment.

8 . We note that the rule established by the Supreme Court in Crawford and Rushing is the standard of appellate review in Virginia and differs from the rule enunciated by the Supreme Court of the United States in Lockhart v. Nelson, 488 U.S. 33, 34, 109 S.Ct. 285, 287, 102 L.Ed.2d 265 (1988) (holding "where the evidence offered by the State and admitted by the trial court'—whether erroneously or not—would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial”). We express no opinion as to whether application of this standard constitutes an acquittal for purposes of the Double Jeopardy Clause in the event that the Commonwealth elects to proceed further.