Robertson v. Commonwealth

732 S.E.2d 30, 60 Va. App. 688, 2012 WL 3929820, 2012 Va. App. LEXIS 297
CourtCourt of Appeals of Virginia
DecidedSeptember 11, 2012
DocketRecord No. 0477-11-3
StatusPublished
Cited by4 cases

This text of 732 S.E.2d 30 (Robertson v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robertson v. Commonwealth, 732 S.E.2d 30, 60 Va. App. 688, 2012 WL 3929820, 2012 Va. App. LEXIS 297 (Va. Ct. App. 2012).

Opinions

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 [693]*693plastic 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 [694]*694discontinued 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.
sjs ❖ ❖
[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.
[695]*695[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....
******
[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....
******
[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 ...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Carlson Bryant Folly v. Commonwealth of Virginia
Court of Appeals of Virginia, 2014
Robertson v. Commonwealth
738 S.E.2d 531 (Court of Appeals of Virginia, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
732 S.E.2d 30, 60 Va. App. 688, 2012 WL 3929820, 2012 Va. App. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-commonwealth-vactapp-2012.