Ragsdale v. State

317 S.E.2d 288, 170 Ga. App. 448, 1984 Ga. App. LEXIS 1922

• Court: Court of Appeals of Georgia
• Decided: March 9, 1984
• Docket: 67154
• Status: Published

Opinions

Birdsong, Judge.

Appellants were convicted of theft by taking of property valued in excess of $200, and were given felony sentences. They now take issue with the sufficiency of the evidence concerning the value of the items taken and seek a remand to the trial court for resentencing on misdemeanor theft by taking.

Probably without dispute, it can be stated that in this State the leading case establishing the principles for ascertaining value is the case of Hoard v. Wiley, 113 Ga. App. 328 (147 SE2d 782), a 1966 case. That case relied upon Code Ann. § 38-1709 which authorized the stating of an opinion by a witness if there is a reason given therefor. This court in Hoard, supra, construed that code section as precluding an owner from testifying to the value of his goods in a single or gross amount without giving reasons therefor or showing that he had an opportunity for forming a correct opinion. This rule had been announced as early as 1885 in Central Railroad v. Wolff, 74 Ga. 664.

The principles adopted and announced in Hoard, supra, find parallels in criminal law for assessing value. Thus, while the question of value is peculiarly one for the jury, jurors are not required to accept as correct, opinion evidence of value even where there is no other evidence of facts and data upon which the jury might base an independent conclusion. Choice v. State, 31 Ga. 424, 480. See Hayes v. State, 139 Ga. App. 316, 317 (228 SE2d 585), recognizing the truism that jurors may use their own experience in assessing the weight and value of an expert’s opinion, and even may utilize their own awareness of value of common and ordinary objects.

One need not be an expert or dealer in the article but may testify as to value if he has an opportunity to form a correct opinion. Code Ann. § 38-1709. Gunter v. State, 155 Ga. App. 176 (270 SE2d 224).

An opinion as to value based solely on cost price is inadmissible in evidence as it has no probative value. Crowley v. State, 141 Ga. App. 867, 868 (234 SE2d 700). However, the rule that cost price is not probative evidence of market value is ameliorated by the allowance of proof of price at purchase as a circumstance from which value may be inferred. Peterson v. State, 6 Ga. App. 491 (65 SE 311).

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. Yarber v. State, 144 Ga. App. 781 (242 SE2d 372).

Based upon the foregoing analysis, we are satisfied that the same rules apply to the ascertainment of value of personalty whether that personalty is the subject of a negligence case or the object of a theft in a criminal case. Value is value in which ever context. Thus, there appears to be no justification for the conclusion advanced in the dissent calling for overturning the case of Lee v. State, 162 Ga. App. 259 (290 SE2d 307), solely because that case sets forth and relies upon civil case law. The property stolen in Lee was ordinary contents of a home in which the owner testified that the contents thereof had a value of over $5,000. See Hayes v. State, supra.

Decided March 9, 1984 — Rehearing denied March 26, 1984 — J. Douglas Willix, for appellants. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carole E. Wall, Assistant District Attorneys, for appellee.

It has been held that direct proof of value is not essential in prosecutions for theft by taking but proof of value may be shown by inference. Buntin v. State, 117 Ga. App. 813 (162 SE2d 234). This is but a restatement of the principle that circumstantial evidence is sufficient to establish value. See Parker v. State, 142 Ga. App. 396 (236 SE2d 141).

Applying the rules above stated to the facts of this case, we conclude there is sufficient evidence of value to affirm the sentence of the trial court. The evidence reflects that the witness whose testimony is in dispute was a police officer who had been a member of the force for twelve years. Ten of these years had been served exclusively with duties in the athletic association supervising athletic events including boxing. Thus there is probative evidence reflecting ten years’ experience in the particular field to which the value evidence related. This provided evidence of an obvious opportunity to gain familiarity with equipment values (Gunter v. State, supra) creating at least a minimal basis for that value evidence. The witness was not asked to give his opinion or state the cost price or date of purchase. The witness identified each item pictorially, explained its use, and then stated as a “fact” an individual value, the combined total of which exceeded $700. At no time was an objection voiced to this testimony or a search of the witness’ expertise made, nor was contrary evidence of value introduced by the defendant. We previously have held that only where an issue of fact as to value is raised need the jury make a finding as to value. Jones v. State, 147 Ga. App. 779, 780 (250 SE2d 500). In the absence of an objection, no issue as to value was placed before the jury. As a matter of law there was a basis for the value stated by the witness. No issue of value was raised before the trial court; therefore, the trial court properly sentenced the appellants as felons.

Judgment affirmed.

McMurray, C. J., Deen, P. J., Quillian, P. J., Banke, Sognier and Pope, JJ., concur. Shulman, P. J., and Carley, J., dissent.