James Earl Jackson v. Commonwealth of Virginia

Opinion

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

- 2 - 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

- 3 - 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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