State of West Virginia v. Gina Marie Jerrome , 233 W. Va. 372 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term
FILED
_____________ May 8, 2014
released at 3:00 p.m.
No. 13-0713 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Petitioner
V.
GINA MARIE JERROME,
Defendant Below, Respondent
________________________________________________________________
Appeal from the Circuit Court of Ohio County
Honorable James P. Mazzone, Judge
Criminal Action No. 13-F-7
AFFIRMED
________________________________________________________________
Submitted: April 23, 2014
Filed: May 8, 2014
Mark D. Panepinto Patrick Morrisey
Wheeling, West Virginia Attorney General
Attorney for Petitioner Julie A. Warren
Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICES WORKMAN and LOUGHRY concur and reserve the right to file
concurring opinions.
SYLLABUS BY THE COURT
1. “Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.”
Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
2. The theft of property from different owners at the same time and place
may constitute one larceny. When considering whether the theft of several items of property
from multiple victims constitutes one larceny under the single larceny doctrine, the
controlling factor is whether the separate takings were part of a single scheme or continuing
course of conduct. If so, the values of the property may be aggregated to determine the grade
of the offense.
3. “Whether a witness is qualified to state an opinion is a matter which
rests within the discretion of the trial court and its ruling on that point will not ordinarily be
disturbed unless it clearly appears that its discretion has been abused.” Syllabus point 5,
Overton v. Fields, 145 W. Va. 797, 117 S.E.2d 598 (1960).
4. The owner of stolen property may offer evidence of its value, at the time
and place of the crime, based upon the property’s fair market value. In addition to fair
market value, other ways of showing the value of stolen property include the purchase price,
i
replacement cost, or the owner’s reasonable belief as to its value. The weight to be given the
owner’s testimony as to the value of the property is for the trier of fact to decide.
ii
Davis, Chief Justice:
This appeal was brought by Gina Marie Jerrome (“Ms. Jerrome”) from an order
of the Circuit Court of Ohio County convicting her of grand larceny and sentencing her to
prison for 1 to 10 years.1 In this appeal, Ms Jerrome assigns two issues as error: (1) allowing
the theft of property taken from three purses to be treated as a single occurrence and (2) using
non-fair market value evidence to establish the value of stolen items. After a careful review
of the briefs, appendix record submitted on appeal, and listening to the arguments of the
parties, we affirm.
I.
FACTUAL AND PROCEDURAL HISTORY
The relevant facts of this case involve four crime victims. During the late
evening hours of December 8, 2012, all of the victims were at a nightclub called
“Generations.” The night club was located in Wheeling, West Virginia.
Two of the crime victims, Karen Jewell and Christopher Violet, were dating and
went to the nightclub together. Prior to their arrival at the nightclub, Ms. Jewell and Mr.
Violet attended a Christmas party that was hosted by her employer, the law firm of Orrick,
1
Counsel for Ms. Jerrome indicated during oral argument that she has been
released on parole.
1
Herrington and Sutcliffe.2 Several of Ms. Jewell’s coworkers also came to the nightclub after
the office Christmas party ended. Ms. Jewell and Mr. Violet joined her office coworkers at
three tables in the nightclub. Ms. Jewell and several of her female co-workers placed their
purses together on a table. It appears that shortly after their arrival, Ms. Jewell and Mr. Violet
went on the dance floor and danced for two or three songs. Ms. Jewell went to the restroom
after they stopped dancing. While in the restroom, Ms. Jewell discovered her purse in a trash
can that was located in one of the restroom stalls. Everything of value was missing from her
purse, including her wallet, credit cards, and two cell phones.3
One of Ms. Jewell’s co-workers, an attorney named Lisa Bauer, was in the
restroom when Ms. Jewell saw her purse in the trash can. Ms. Bauer helped Ms. Jewell search
other trash cans to see if her wallet was in them. While the women searched trash cans,
another woman entered the restroom and mentioned that someone else’s purse was missing.
At that point, Ms. Bauer left the restroom to retrieve her own purse. When Ms. Bauer got to
the area where she had left her purse, she discovered that also was missing. Items of value
in Ms. Bauer’s purse included two cell phones and a medical inhaler.4
2
Ms. Jewell was employed as a staff coordinator.
3
One of the cell phones belonged to Mr. Violet. The battery in Ms. Jewell’s
cell phone was dead, so she was carrying Mr. Violet’s cell phone.
4
One of the cell phones was a work cell phone.
2
Around the time Ms. Jewell discovered her purse in a trash can, another woman
in the nightclub, a college student named Sadie Atkinson, discovered that her purse was
missing. Items of value in Ms. Atkinson’s purse included an iPod and a debit card. Ms.
Atkinson was the first person to inform the club’s manager, Monica Thompson, that a theft
had occurred. Ms. Thompson called the police to report that Ms. Atkinson’s purse had been
stolen. Ms. Thompson also informed the police that Ms. Jerrome had been in the nightclub
earlier and that she believed Ms. Jerrome was responsible for the theft of the purse. In
particular, Ms. Thompson indicated that she was suspicious of Ms. Jerrome because Ms.
Jerrome acted strangely while she was at the nightclub. Ms. Thompson had observed Ms.
Jerrome walking throughout the nightclub, but she did not appear to interact with anyone. Ms.
Thompson stated that Ms. Jerrome appeared to be hiding something under one of her arms
when she left the nightclub. Finally, Ms. Thompson informed the police that Ms. Jerrome had
left the club with her boyfriend, Jacob Christopher. After Ms. Thompson called the police,
Ms. Jewell and Ms. Bauer informed Ms. Thompson that their purses had been stolen.
When Ms. Jerrome and her boyfriend, Mr. Christopher, left the nightclub, they
were accompanied by a third person. The three individuals drove to an apartment complex
that apparently was not far from the nightclub. A police officer patrolling the area of the
apartment complex saw a car parked improperly. The officer also saw Ms. Jerrome kneeling
beside the car and digging into a bag. The police officer parked his car and approached Ms.
3
Jerrome and her companions to investigate what appeared to be suspicious conduct. The
police officer saw Mr. Christopher toss something in the doorway of a building. Eventually,
other police officers arrived. It was quickly learned that the police were looking for Ms.
Jerrome and Mr. Christopher in connection with the purse thefts at the nightclub. The police
retrieved the object that Mr. Christopher threw away and identified it as a credit card
belonging to Ms. Jewell. The police also discovered other items that were stolen from the
nightclub. Ms. Jerrome initially told the police that she found the purses at the club and that
she was taking them to the police station.
On January 14, 2013, a grand jury returned a two count indictment against Ms.
Jerrome and Mr. Christopher. The indictment charged them with two felony offenses, grand
larceny and conspiracy, involving the theft of property belonging to Ms. Jewell, Mr. Violet,
Ms. Bauer, and Ms. Atkinson. Ms. Jerrome’s trial was severed from that of Mr. Christopher.5
Ms. Jerrome was tried before a jury on March 19, 2013. During the opening statements, Ms.
Jerrome’s counsel informed the jury that she had stolen the items alleged in the indictment,
but that she contested their value. Ms. Jerrome wanted the jury to convict her of the
misdemeanor crime of petit larceny, a lesser included offense of grand larceny. During the
trial, the State called nine witnesses, including the victims. The victims presented testimony
that indicated the total value of the property stolen was in excess of $1000, which would
5
The record does not indicate the status of the charges against Mr. Christopher.
4
satisfy the requirements for a grand larceny conviction. At the close of the State’s case-in­
chief, the circuit court dismissed the conspiracy charge because of insufficient evidence. Ms.
Jerrome did not testify, but she did put on a case-in-chief wherein she called one witness. Ms.
Jerrome’s witness was qualified as an expert on the price of used cell phones. The expert
placed a value on all the cell phones and the iPod that, collectively, did not equal $1,000,
which would allow for only a petit larceny conviction. The jury returned a verdict finding Ms.
Jerrome guilty of grand larceny. This appeal followed.
II.
DISCUSSION6
On appeal to this Court, Ms. Jerrome asserts two assignments of error. Each
issue will be discussed individually.
A. Application of the Single Larceny Doctrine
The first issue raised by Ms. Jerrome is that the circuit court erred in making a
pretrial ruling that the State could aggregate the value of the stolen property to support the
grand larceny indictment. This issue presents a question of law and requires an examination
of our grand larceny statute. Our cases have held that “[w]here the issue on an appeal from
the circuit court is clearly a question of law or involving an interpretation of a statute, we
6
We dispense with our usual practice of setting forth a general standard of
review section because each of the issues presented in this case has its own unique review
standard, which will be included in the relevant section.
5
apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va.
138, 459 S.E.2d 415 (1995). Accord Syl pt. 1, State v. Chic-Colbert, 231 W. Va. 749, 749
S.E.2d 642 (2013) (per curiam).
We begin by noting that Ms. Jerrome was indicted on a charge of grand larceny
under W. Va. Code § 61-3-13(a) (1994) (Repl. Vol. 2010). The statute sets out the offense
of grand larceny as follows:
(a) If a person commits simple larceny of goods or chattels
of the value of one thousand dollars or more, such person is
guilty of a felony, designated grand larceny, and, upon conviction
thereof, shall be imprisoned in the penitentiary not less than one
nor more than ten years, or, in the discretion of the court, be
confined in jail not more than one year and shall be fined not
more than two thousand five hundred dollars.
Under this statute, the theft of “goods or chattels” valued at one thousand dollars or more
constitutes grand larceny.7 We note that W. Va. Code § 61-3-13(a) is silent as to how it is to
be applied when larceny involves property belonging to and taken from multiple victims. As
a result of this silence, Ms. Jerrome contends that “there is no authority or reference to
7
The crime of petit larceny is set out under W. Va. Code § 61-3-13(b) (1994)
(Repl. Vol. 2010) as follows:
(b) If a person commits simple larceny of goods or
chattels of the value of less than one thousand dollars, such
person is guilty of a misdemeanor, designated petit larceny, and,
upon conviction thereof, shall be confined in jail for a term not
to exceed one year or fined not to exceed two thousand five
hundred dollars, or both, in the discretion of the court.
6
aggregating values of multiple owners of different property for the purposes of satisfying the
grand larceny statute.” The State disagrees with Ms. Jerrome and correctly points out that this
issue is resolved by the common law “single larceny doctrine.”
This Court first recognized the single larceny doctrine in State v. Hall, 171
W. Va. 212, 298 S.E.2d 246 (1982), in the narrow context of a prosecution for the offense of
receiving stolen property. In Hall, the defendant was convicted of 15 separate counts of
receiving stolen property. One of the issues the defendant raised on appeal was that he was
guilty of only one offense, not 15 offenses.8 This Court agreed with the defendant. In doing
so, the opinion in Hall tersely explained the doctrine as follows:
It is well established that the stealing of property from
different owners at the same time and at the same place
constitutes but one larceny. This has come to be known as the
“single larceny doctrine” to which the overwhelming majority of
jurisdictions adhere.
Hall, 171 W. Va. at 222, 298 S.E.2d at 256 (internal quotations and citations omitted). After
examining the purpose and application of the doctrine, the court in Hall applied it to the crime
of receiving stolen property:
The rationale behind the “single larceny doctrine” has also
been applied to the crime of receiving stolen property.
While it is true that the stealing from
different owners at different times, however slight
8
Other issues were involved in the case that are not relevant to this appeal.
7
the interval, constitute several offenses, a larceny
of several articles may be committed by the same
act, so as to constitute but one offense, though they
are the property of different owners. State v.
Hennessey, 23 Ohio St. 339 [1872]. And so with
respect to receiving or concealing stolen property.
Many articles stolen at different times from several
persons may be received and concealed by the
same act, and then there is but one offense.
Smith v. State, 59 Ohio St. 350, 358, 52 N.E. 826, 827 (1898).
....
The facts in the present case indicate that at trial the
prosecution offered no evidence concerning separate occasions
when the appellant may have received the stolen property. The
evidence showed only that the stolen property was concealed on
appellant’s farm. Thus, under the facts presented there was but
a single offense of larceny by aiding in the concealment of stolen
property supported by the evidence. The State failed to show that
the appellant committed separate offenses under the statute.
Because only one offense was proven, only one conviction and
one sentence are warranted. Therefore, the trial court erred in
imposing multiple sentences upon the appellant.
8
Hall, 171 W. Va. at 222-23, 298 S.E.2d at 256-57.9 But see State v. Rogers, 209 W. Va. 348,
362, 547 S.E.2d 910, 924 (2001) (“We decline to extend the single larceny doctrine to the
circumstances of this case. There was proof adduced at trial that the property of each victim
was taken at different times and in different places.”).
It has been said that “[t]he rationale behind th[e] [single larceny doctrine] is that
the taking of several articles at the same time from the same place is pursuant to a single intent
and design.” J.R. v. State, 982 N.E.2d 1037, 1039 (Ind. Ct. App. 2013) (internal quotations
and citation omitted). See also State v. Rasabout, 299 P.3d 625, 630 (Utah Ct. App. 2013)
(“The single larceny doctrine . . . evolved to limit charging discretion in the context of
aggregating or separating theft counts based on their dollar values for the purpose of
maximizing criminal liability.”). As a general matter, the single larceny doctrine arises in
three principal contexts:
9
We went on to adopt the doctrine in Syllabus point 9 of Hall:
Under the provisions of W. Va. Code, 61-3-18 [1931]
where the State proves that a defendant received or aided in the
concealment of property which was stolen from different owners
on different occasions, but does not prove that the defendant
received or aided in the concealment of the property at different
times or different places then such defendant may be convicted
of only one offense of receiving or aiding in the concealment of
stolen property.
171 W. Va. 212, 298 S.E.2d 246.
9
(1) whether a count in a charging document alleging that
the defendant stole the property of several persons at the same
time charges more than one offense and is therefore duplicitous;
(2) whether a prosecution, conviction, or sentencing for stealing
the property of one person bars, under double jeopardy
principles, the prosecution, conviction, or sentencing for having
stolen the property of another person at the same time; and (3)
whether, when the property of different persons is stolen at the
same time, the values of the separate items of property may be
aggregated to raise the grade of the offense or the severity of the
punishment, to the extent that either is dependent on the value of
the property taken.
Pitt v. State, 832 A.2d 267, 283 (Md. Ct. Spec. App. 2003) (citation omitted) (emphasis in
original).
The decision in Richardson v. Commonwealth, 489 S.E.2d 697 (Va. Ct. App.
1997), illustrates the application of the single larceny doctrine in the context of property stolen
from more than one purse. In Richardson, the defendant entered a hospital and stole two
purses that belonged to different hospital employees.10 The purses were stolen from a nurses’
station on the tenth floor of the hospital. Because the value of the contents of one of the
stolen purses exceeded $200, the defendant was charged with grand larceny. However, as a
result of the value of the property in the other purse being less than $200, the defendant also
was charged with petit larceny. The defendant was convicted of both charges and appealed.
10
The defendant committed other crimes while in the hospital, but those matters
are not relevant to this discussion.
10
In the appeal, the defendant argued that, under the single larceny doctrine, he committed only
one offense, not two offenses. The appellate court agreed as follows:
In order for the single larceny doctrine to apply, the items
stolen may, but do not have to, be part of the same bundle or
parcel; it is sufficient if they be at the same location—that is on
the “same table,” or same room, or “same shop[.]” When the
evidence supports a finding that the thefts were part of the same
larcenous impulse or scheme and were part of a continuous act,
a single larceny has occurred. The primary factor to be
considered is the intent of the thief and the question to be asked
is whether the thefts, although occurring successively within a
brief time frame, were part of one impulse. The circumstances
to be considered that will bear upon the issue are the location of
the items stolen, the lapse of time between their taking, the
general and specific intent of the thief, the number of owners,
and whether intervening events occurred between the takings.
Unless the evidence proves that two or more separate and
discrete thefts occurred at separate times which were not part of
the same larcenous impulse, then thefts from the same room are
but a single larceny.
....
As for the theft of the two purses from the tenth floor
nurses’ station, the evidence was not sufficient to prove that
Richardson formed separate and distinct intentions to steal or to
commit two separate thefts even though the purses were
separated by approximately ten feet. The theft of the two purses
occurred at approximately the same time, from the same room or
location, and pursuant to a single impulse or design to steal items
from that nurses’ station. The fact that the purses were separated
by ten feet and that the thief had to walk around a wall from the
desk to the cabinet are not circumstances that break the
continuity of the thief’s single and continuing act of thievery. . . .
Thus, the evidence is insufficient to prove two separate and
distinct offenses. The only conclusion that a fact finder could
reasonably draw from this record is that Richardson went to the
tenth floor nurses’ station intending to steal purses or other items
11
of value and that he stole two purses during one continuous act
or transaction.
Richardson, 489 S.E.2d at 700-01. See also Wiglesworth v. State, 249 P.3d 321, 326 (Alaska
Ct. App. 2011) (“Alaska follows the ‘single larceny’ doctrine–the rule that the defendant’s
act of taking property belonging to different owners at the same time and place generally
constitutes only a single crime of theft, even though this act of theft affects two or more
victims.”); State v. Fillmore, 927 P.2d 1303, 1308 (Ariz. Ct, App. 1996) (“Although
Defendant does not use the term, his argument implicates the ‘single larceny doctrine,’ under
which the stealing of property from different owners at the same time and the same place
constitutes only one larceny.”); People v. Marquez, 78 Cal. App. 4th 1302, 1308-09 (2000)
(“This doctrine provides that when property properly belonging to different persons is taken
at the same time and place, only one larceny will lie for the taking.”); Hayes v. State, 803
So. 2d 695, 701 (Fla. 2001) (“[I]t was the fact that the taking of the property occurred at the
same time, same place, and under the same circumstances that prohibited charging the
defendants with multiple counts of larceny.”); Beaty v. State, 856 N.E.2d 1264, 1271 (Ind. Ct.
App. 2006) (“The single larceny rule states that when multiple items of property are taken at
the same time and from the same place, there is but a single larceny, irrespective of whether
the property belonged to one or several people.”); State v. McClanahan, 836 P.2d 1164, 1166
(Kan. 1992) (“[A] series of larcenous acts, regardless of the amount and value of the separate
parcels or articles taken, and regardless of the time occupied in the performance, may and will
constitute, in contemplation of law, a single larceny, provided the several acts are done
12
pursuant to a single impulse and in execution of a general fraudulent scheme.”); Fair v.
Commonwealth, 652 S.W.2d 864, 867 (Ky. 1983) (“[T]hough items were owned by different
people, were not of the same type, and were certainly not located in exactly the same place
in the barn, the taking of the property at the same time and the same place [was] one
larceny.”); People v. Adams, 339 N.W.2d 687, 690 (Mich. Ct. App. 1983) (“The rule followed
in Michigan and in nearly all other jurisdictions is that the taking of property from different
sources at the same time and at the same place can constitute only a single larceny.”); State
v. Morro, 987 P.2d 420, 424 (N.M. Ct. App. 1999) (“[When] a thief takes several small
amounts . . . from different victims at one time and place (as where, during a tea party
downstairs, the thief searches the bedroom where several ladies’ purses have been stowed,
taking ten dollars from each of ten purses), the takings may, by the great weight of authority,
be aggregated.”); State v. Marr, 467 S.E.2d 236, 239 (N.C. 1996) (“[A] single larceny offense
is committed when, as part of one continuous act or transaction, a perpetrator steals several
items at the same time and place.”); Commonwealth v. Lockhart, 296 A.2d 883, 885
(Pa. Super. Ct. 1972) (“The vast majority of jurisdictions wherein the issue of single or
multiple larcenies has arisen have held that the stealing of property from a victim, but
belonging to different owners, at the same time and the same place, constitutes but one
larceny.”); State v. Waller, 312 S.E.2d 552, 553 (S.C. 1984) (“The vast majority of cases
considering this issue hold that the larceny of property from different owners at the same time
and place constitutes one larceny.”); State v. Barker, 624 P.2d 694, 695 (Utah 1981) (“[A]
13
single larcenous taking of property, whether owned by one or several individuals, will be
treated as a single criminal offense.”); State v. Greathouse, 56 P.3d 569, 581 n.2 (Wash. Ct.
App. 2002) (“Where successive takings from several victims are pursuant to a single scheme,
the takings may, by the great weight of authority, be aggregated.”).
During oral arguments, counsel for Ms. Jerrome argued that there was no
showing that the thefts occurred at the same time and place because the purse of Ms. Atkinson
was in a different part of the bar than the purses of the other victims. The decision in
Richardson is illustrative of the fact that the single larceny doctrine does not require that
several thefts occur simultaneously. Such a requirement is illogical because there will always
be some degree of time difference in the theft of multiple, unconnected items. Therefore, the
meaning of “same time” for the purpose of the single larceny doctrine contemplates several
thefts within a brief time period. Morever, Richardson is instructive as to the flexible
meaning of the “same place” requirement of the single larceny doctrine. Under Richardson,
theft of items located in different rooms on the same floor of a building constitutes the “same
place.”11
11
Ultimately, the decision of what constitutes the same place and time is
determined on a case-by-case basis.
14
In view of the foregoing authorities, we make clear and now hold that, the theft
of property from different owners at the same time and place may constitute one larceny.
When considering whether the theft of several items of property from multiple victims
constitutes one larceny under the single larceny doctrine, the controlling factor is whether the
separate takings were part of a single scheme or continuing course of conduct. If so, the
values of the property may be aggregated to determine the grade of the offense.
In the instant proceeding, Ms. Jerrome filed a pretrial motion to dismiss the
indictment on the grounds that the indictment wrongly aggregated the value of the items
stolen in order to support a grand larceny charge.12 The trial court entered an order denying
the motion for the following reasons:
In the instant case, Defendant is charged with stealing
various items from several different persons within a small, finite
span of time while at one location: Generations in Wheeling,
WV. It also appears from the allegations that Defendant
allegedly stole the various items, which includes multiple purses
and their contents, within a small window of time, and the items
allegedly stolen were in close proximity to each other just prior
to the alleged theft. The Court notes particularly that
Defendant’s actions occurred (1) at one location, i.e.,
Generations in Wheeling, WV; (2) within a small and finite
window of time; and (3) in a confined area of physical proximity;
accordingly, the Court hereby FINDS and CONCLUDES that the
Defendant’s alleged crime arose out of a single occurrence. As
a result, the Court is satisfied that the State’s aggregation of the
12
Ms. Jerrome challenged the indictment on other grounds that are not relevant
herein.
15
value of the items stolen in order to pursue a felony grand larceny
charge with respect to Defendant’s actions on the date in
question, is appropriate in this case.
The trial court’s pretrial findings are consistent with the requirements of the single larceny
doctrine. Moreover, it is clear that the single larceny doctrine was supported by the evidence
presented at trial. The trial evidence established that Ms. Jerrome stole items belonging to
four people that were contained in three purses. The thefts occurred in the same nightclub and
at the relative same time. Moreover, the evidence showed that the separate takings were part
of a single scheme or continuing course of conduct by Ms. Jerrome. Consequently, the value
of all of the items stolen was properly aggregated to prosecute Ms. Jerrome for grand larceny.
B. Using Non-Fair Market Value Evidence to
Establish the Value of Stolen Property
The next argument raised by Ms. Jerrome is that the trial court erred in allowing
the victims to offer non-fair market value evidence of the value of the items stolen from them.
Specifically, Ms. Jerrome contends that testimony by the victims as to the value of the iPod
and cell phones was “based upon their replacement costs, or specific subjective values to the
individual victims” or “cost-when-new.” Ms. Jerrome contends this type of evidence was not
admissible to prove the value of the items.
With few exceptions, this Court reviews evidentiary rulings made by a trial
court for an abuse of discretion:
16
The West Virginia Rules of Evidence and the West
Virginia Rules of Civil Procedure allocate significant discretion
to the trial court in making evidentiary and procedural rulings.
Thus, rulings on the admissibility of evidence . . . are committed
to the discretion of the trial court. Absent a few exceptions, this
Court will review evidentiary and procedural rulings of the
circuit court under an abuse of discretion standard.
Syl. pt. 1, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995). We also have
held that “[w]hether a witness is qualified to state an opinion is a matter which rests within
the discretion of the trial court and its ruling on that point will not ordinarily be disturbed
unless it clearly appears that its discretion has been abused.” Syl. pt. 5, Overton v. Fields, 145
W. Va. 797, 117 S.E.2d 598 (1960).
Ms. Jerrome relies upon the decision in State v. Bingman, 221 W. Va. 289, 654
S.E.2d 611 (2007) (per curiam), for the proposition that the determination of the value of
property in a larceny prosecution may be based only upon the fair market value of the property
when stolen. Although the decision in Bingman quoted a jury instruction on larceny that was
given by the trial judge in that case, the opinion was not concerned with the merits of the
valuation component of the instruction. The issue the opinion addressed was the fact that the
defendant offered an instruction which allowed the jury to consider the lesser included offense
of petit larceny. This issue was relevant because the defendant was convicted of the lesser
included offense, but contended that the statute of limitations had run on the lesser included
offense. We rejected the contention because the defendant proposed the instruction which
17
contained the lesser included offense. In sum, Bingman simply is not dispositive of what may
or may not be considered as evidence to show the value of stolen property.
The State has cited to the decision in State v. Hall, supra, as guidance as to what
type of evidence may be considered by a jury in deciding the value to place on stolen property.
As stated earlier in this opinion, the defendant in Hall was convicted of receiving stolen
property. One of the issues the defendant raised was that the trial court erred in permitting
the owners of the stolen property to testify concerning the value of the items stolen from them.
This Court rejected the argument as follows:
The facts indicate that in order to determine whether a
felony or misdemeanor had been committed by the appellant the
sole testimony concerning the value of the stolen property offered
by the State was given by the owners of the property. Each
owner testified when he purchased the property, what condition
it was in, both when purchased and when stolen, and what he
paid for it when purchased, and its value when stolen. . . .
This Court in State v. Cokeley, 159 W. Va. 664, 226
S.E.2d 40 (1976) stated that, “[n]ormally the owner of stolen
property may testify as to its value because he is deemed
qualified to give an opinion concerning the value of the things
which he owns. . . .” 226 S.E.2d at 43, citing Commonwealth v.
Warlow, 237 Pa. Super. 120, 346 A.2d 826 (1975) and State v.
Anderson, 20 Ariz. App. 309, 512 P.2d 613 (1973), aff’d, 110
Ariz. 238, 517 P.2d 508 (1973).
This is also the majority rule. See, e.g., Vickers v. State,
303 So.2d 700 (Fla.1974); State v. Smith, 209 Kan. 664, 498 P.2d
78 (1972); Turner v. State, 486 S.W.2d 797 (Tex. Cr. App.1972).
See generally 66 Am. Jur.2d Receiving Stolen Property § 23
(1973). Moreover, an owner’s testimony concerning the value of
18
his stolen property is not the sole determinative factor but rather
is but one piece of evidence which the jury may consider when
establishing the property’s value. 346 A.2d at 829.
Hall, 171 W. Va. at 219-20, 298 S.E.2d at 253.
The decision in Hall is instructive on the general rule that “an owner is generally
presumed as competent to testify to the value of his stolen property.” Sanchez v. State, 101
So. 3d 1283, 1286 (Fla. Dist. Ct. App. 2012) (internal quotations and citation omitted).
Although the victims in Hall testified as to the value of their property when purchased and
when stolen, the opinion did not have to address the question of what type of valuation
evidence was appropriate. The instant case posits that question. That is, in this proceeding,
Ms. Jerrome contends that a victim of property theft cannot give evidence that values his or
her property based upon replacement cost, cost-when-new, or a specific, subjective value. We
disagree.
At the outset we will note that our larceny statute, W. Va. Code § 61-3-13, does
not address the issue of how stolen property should be valued. As a general rule, “[t]he value
of the items stolen means the market value of the property at the time and place of the crime.”
Davis v. State, 453 A.2d 802, 803 (Del. 1982). See also State v. Boyken, 217 N.W.2d 218,
220 (Iowa 1974) (“Ordinarily the criterion of value is the market value of the stolen property
at the time and place of the theft.”); State v. Jacquith, 272 N.W.2d 90, 92 (S.D. 1978) (“The
19
most widely accepted test is the ‘fair market value’ test. This test provides that the value to
be proved is the fair market value at the time and place of the theft.”). It has been said that
“[t]he market value of stolen property is the price a willing buyer would pay a willing seller
. . . at the time and the place that the property was stolen[.]” United States v. Robinson, 687
F.2d 359, 360 (11th Cir. 1982). Indeed, this Court long ago held that, “[u]pon a charge of
grand larceny, the market value of the thing stolen (if it have a market value) as at the time
and place of the theft must be proven beyond reasonable doubt.” Syl. pt. 1, State v. Boswell,
107 W. Va. 213, 148 S.E. 1 (1929). In addition to showing the fair market value of stolen
goods, it has been held that:
Fair market value can be proven by evidence of the retail
price or sale price, by testimony of an owner’s opinion of value,
or an expert opinion of value. No one method has been held to
be exclusive. When the owner of the property is testifying as to
the value of the property, he may testify as to his opinion or
estimate of the value of the property in general and commonly
understood terms.
Ray v. State, 106 S.W.3d 299, 301 (Tex. App. 2003). It also has been recognized that “where
such market value cannot be reasonably determined other evidence of value may be received
such as replacement cost or purchase price.” Cleveland v. State, 461 P.2d 408, 409 (Nev.
1969). See also Daniel v. State, 439 So. 2d 206, 209 (Ala. Crim. App. 1983) (“We hold that
the evidence ‘as to what the stolen property cost at the time it was purchased by its owner,’
and ‘the serviceability of the property at the time it was allegedly stolen,’ and ‘the age of such
property’ furnished an adequate if not substantial basis for a finding by the jury that the
20
property in question was worth more than $100.”); State v. Sorrell, 388 P.2d 429, 431 (Ariz.
1964) (“Fair market value does not depend solely on wholesale or cost price. Evidence of
retail price of stolen goods is admissible to show the value of the goods. The wholesale and
retail prices, established by experts if necessary, may fix the range within which the jury may
find fair market value.”); People v. Moore, 226 P.3d 1076, 1084 (Colo. App. 2009)
(“[T]estimony on the purchase price of goods is competent evidence of fair market value only
where the goods are so new, and thus, have depreciated in value so insubstantially, as to allow
a reasonable inference that the purchase price is comparable to current fair market value.”);
State v. Browne, 854 A.2d 13, 36 (Conn. App. Ct. 2004) (“[T]he owner of an article, whether
he is generally familiar with such values or not, ought certainly to be allowed to estimate its
worth; the weight of his testimony (which often would be trifling) may be left to the jury; and
courts have usually made no objections to this policy.”); Ragsdale v. State, 317 S.E.2d 288,
289-90 (Ga. Ct. App. 1984) (“Cost price of an item coupled properly with other evidence such
as a showing of the condition of the item at the time of purchase and at the time its value is
in issue may be admitted as an element upon which an opinion may be formed as to the item’s
value.”); State v. Boyken, 217 N.W.2d 218, 220 (Iowa 1974) (“In cases involving theft of new
merchandise, other jurisdictions have held market value may be established by evidence of
wholesale or retail values, or both.”); Ladd v. State, 87 So. 3d 1108, 1116 (Miss. Ct. App.
2012) (“[T]he owner of the merchandise may establish the value of the stolen property by
testifying about what he paid for the stolen items. This type of testimony circumstantially
21
provide[s] a basis from which the jury could infer the value of the items.”); Monroe v. State,
No. 52788, 2010 WL 3341612, at*3 n.3 (Nev. July 30, 2010) (“This court has defined that
standard as the fair market value of the property at the time and place it was stolen . . . [but]
where such market value cannot be reasonably determined other evidence of value may be
received such as replacement cost or purchase price.”); Smiles v. State, 298 S.W.3d 716, 719
(Tex. App. 2009) (“[T]he owner may testify as to the fair market value of the property either
in terms of purchase price or the cost to him of replacing the stolen property.”); Lester v.
Commonwealth, 518 S.E.2d 318, 322 (Va. Ct. App. 1999) (“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.”). But see C.G. v. State, 123 So. 3d 680, 682 (Fla. Dist. App. Ct.
2013) (“The evidence of value was ‘not “obvious as to defy contradiction’ and, therefore, was
insufficient to establish the stolen property’s value at the time of the theft.”’); State v. Boyd,
91 S.W.3d 727, 734 (Mo. Ct. App. 2002) (“Testimony from the owner of the motorcycle
regarding its initial purchase price and the perceived ‘perfect’ condition of the motorcycle
before the accident is too indefinite to constitute substantial evidence from which a jury could
reasonably decide, beyond a reasonable doubt, that the market value of the [motorcycle] at the
time and place of the crime was at least [$150].”).
Moreover, “[t]he state does not need to prove the value of property with
exactitude. . . . The state is required only to lay a foundation which will enable the trier [of
22
fact] to make a fair and reasonable estimate.” State v. Sherman, 13 A.3d 1138, 1151
(Conn. App. Ct. 2011) (internal quotations and citation omitted). Ultimately, “[t]he weight
to be given the owner’s testimony as to value is for the trier of the fact.” People v.
Henderson, 238 Cal. App. 2d 566, 567 (1965) (citation omitted).
In view of the foregoing, we now hold that the owner of stolen property may
offer evidence of its value, at the time and place of the crime, based upon the property’s fair
market value. In addition to fair market value, other ways of showing the value of stolen
property include the purchase price, replacement cost, or the owner’s reasonable belief as to
its value. The weight to be given the owner’s testimony as to the value of the property is for
the trier of fact to decide.
In the instant proceeding, the testimony provided by the victims as to the value
of their property when stolen by Ms. Jerrome was consistent with our holding. The following
evidence was provided by the victims of Ms. Jerrome’s larceny. Ms. Atkinson testified that
she received the iPod from her parents as a gift, and that she believed it was valued at about
$150 to $200. Ms. Jewell testified that her cell phone (iPhone 4S) was worth $500 when it
was stolen, based upon the purchase price of a new phone at the time of trial. Ms. Jewell
stated the phone was free under the cell phone plan she had, but that if she had not recovered
her phone, she would have had to buy a new phone, because her plan was still in effect. Mr.
23
Violet testified that he bought his cell phone (Motorola Razr Maxx) from a friend for $450.
He testified that it was worth $650 new.13 Ms. Bauer testified that her work cell phone
(Blackberry) was valued at $400. She stated that the value of her personal cell phone
(Kyocera Rise) was $250. Ms. Bauer also valued her medical inhaler at $50 and her purse at
$60.
As previously mentioned, Ms. Jerrome called an expert, Koury Jones, to testify
as to the value of used cell phones. Mr. Jones testified that the value placed on the iPod by
Ms. Atkinson was a “little high.” He testified that Ms. Bauer’s Blackberry cell phone was
worth $35 and that her Kyocera Rise cell phone was worth $90. Mr. Jones also found that Mr.
Violet’s Motorola Razr Maxx cell phone was worth $160 to $200. Finally, Mr. Jones testified
that Ms. Jewell’s iPhone 4S cell phone was valued at $350 to $400.
“While the evidence was conflicting . . . on the value of the personal property
taken, the jury had enough evidence before it to prove [Ms. Jerrome’s] guilt beyond a
reasonable doubt.” State v. Masters, 179 W. Va. 752, 755, 373 S.E.2d 173, 176 (1988). The
jury heard the testimony of the victims as to the value of their stolen property at the time of
13
Ms. Jerrome contends in her brief, and her counsel restated during oral
arguments, that Mr. Violet testified that the phone increased in value after he bought it. Mr.
Violet did not provide such testimony. Mr. Violet simply testified that his purchase price was
less than the original price.
24
the offense. They also heard the testimony of Ms. Jerrome’s expert on the same issue. Based
upon the verdict returned by the jury, convicting Ms. Jerrome of grand larceny, it is clear that
the jury gave greater weight and credibility to the testimony of the victims and rejected the
testimony of Ms. Jerrome’s expert. Insofar as it was within the exclusive province of the jury
to assess credibility and the weight of the evidence,14 we will not disturb the jury’s resolution
of the conflicting evidence on the value of the stolen property. See People v. Cox, No.
299279, 2011 WL 6382095, at*2 (Mich. Ct. App. Dec. 20, 2011) (“It is the responsibility of
the fact-finder to judge the credibility of witnesses and it was reasonable for the jury to find
[the victim’s] testimony credible and rely on it in determining the fair market value of the
stolen property was more than $1,000.”).
III.
CONCLUSION
In view of the foregoing, the circuit court’s order convicting Ms. Jerrome of
grand larceny and sentencing her to prison for 1 to 10 years is affirmed.
Affirmed.
14
See Syl. pt. 2, State v. Bailey, 151 W. Va. 796, 155 S.E.2d 850 (1967) (“The
jury is the trier of the facts and in performing that duty it is the sole judge as to the weight
of the evidence and the credibility of the witnesses.”).
25