Robinson v. Commonwealth

516 S.E.2d 475, 258 Va. 3, 1999 Va. LEXIS 74
CourtSupreme Court of Virginia
DecidedJune 11, 1999
DocketRecord 981691
StatusPublished
Cited by115 cases

This text of 516 S.E.2d 475 (Robinson v. Commonwealth) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robinson v. Commonwealth, 516 S.E.2d 475, 258 Va. 3, 1999 Va. LEXIS 74 (Va. 1999).

Opinions

CHIEF JUSTICE CARRICO

delivered the opinion of the Court.

The defendant, Leroy Robinson, Jr., was convicted in a bench trial in the Circuit Court of Henrico County of grand larceny for the theft of three sport coats from Hecht’s Department Store at Regency Square Shopping Center in Henrico County. After receiving and considering a probation report, the trial court sentenced the defendant to serve fifteen years in the penitentiary, with ten years suspended.

The Court of Appeals affirmed the conviction by order, and we awarded the defendant this appeal. In a single assignment of error, the defendant contends that “[t]he trial court erred in admitting hearsay testimony of store employees concerning the price listed on store tags to prove value.”

Grand larceny consists of the theft, not from the person of another, of goods and chattels valued at $200.00 or more. Code § 18.2-95(ii). This statutorily specified amount is an essential element of the offense, and the burden is upon the Commonwealth to establish that element by proof beyond a reasonable doubt. Walls v. Commonwealth, 248 Va. 480, 481, 450 S.E.2d 363, 364 (1994). “Proof that an article has some value is sufficient to warrant a conviction of petit larceny, but where the value of the thing stolen determines the grade of the offense, the value must be alleged and the Commonwealth must prove the value to be the statutory amount.” Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954).

The test is market value, and particularly retail value. See People v. Irrizari, 156 N.E.2d 69, 71 (N.Y. 1959). “[F]air market value is the price property will bring when offered for sale by a seller who desires but is not obliged to sell and bought by a buyer [6]*6under no necessity of purchasing.” Board of Supervisors v. Donatelli & Klein, Inc., 228 Va. 620, 628, 325 S.E.2d 342, 345 (1985). And the original purchase price of an item is admissible as evidence of its current value. Parker v. Commonwealth, 254 Va. 118, 121, 489 S.E.2d 482, 483 (1997); Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 792 (1981).

At trial in the circuit court, Jonathan K. Cessna, a security agent for Hecht’s who witnessed the theft of the three sport coats, testified over the defendant’s hearsay objection that the value of the coats totaled $499.97. Cessna also testified that he knew what the value was because “that’s what it is on the price tags” and “that’s what they’re sold for.”

Victoria Ann Burton, a regional director of Hecht’s who also witnessed the theft, testified over the defendant’s hearsay objection that the sport coats were valued at $499.97 and that she knew the value from the “tickets [that] were attached to the [coats].” Neither the Commonwealth nor the defendant offered any other evidence concerning the value of the coats, and, while photographs of the coats were introduced into evidence, neither the coats themselves nor the price tags were offered into evidence.

In overruling the defendant’s hearsay objection to the testimony of the store employees, the trial judge observed that the price tag affixed to an item “is the evidence of the value of the item.” In affirming, the Court of Appeals stated in its order that “the trial court did not err in overruling [the defendant’s] hearsay objection.”

On appeal, the defendant points out correctly that hearsay is an out-of-court statement offered to prove the truth of the matter asserted and that hearsay includes testimony given by a witness who relates not what he knows personally but what others have told him or what he has read. See Williams v. Morris, 200 Va. 413, 417, 105 S.E.2d 829, 832 (1958); Cross v. Commonwealth, 195 Va. 62, 74, 77 S.E.2d 447, 453 (1953). The defendant also points out correctly that hearsay evidence is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule, West v. Commonwealth, 12 Va. App. 906, 909, 407 S.E.2d 22, 23 (1991), and that the party attempting to introduce a hearsay statement has the burden of showing the statement falls within one of the exceptions, Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984).

Here, the defendant says, the stolen items and their price tags were not offered into evidence, but the store employees testified “to what the out-of-court price tags said in order to prove the value of [7]*7the items.” This, the defendant maintains, was “hearsay to prove hearsay” or, in other words, “double hearsay” and inadmissible because not permitted under any exception to the hearsay rule.

We have not previously considered the question whether the amount shown on a price tag affixed to an item by a retailer, or, if the tag is not offered into evidence, the amount a witness says he observed on the tag, constitutes inadmissible hearsay when offered to prove the value of the item in a prosecution for its theft. The Commonwealth states, however, that “many courts have found [that] the amount on the price tag is a reliable, common-sense source of evidence in determining the fair market value of the item to which it is affixed.”

The Commonwealth discusses at some length Boone v. Stacy, 597 F.Supp. 114 (E.D. Va. 1984), State v. White, 437 A.2d 145 (Conn. Super. Ct. 1981), and Norris v. State, 475 S.W.2d 553 (Tenn. Crim. App. 1971). In Boone, a federal habeas corpus case applying Virginia law, the petitioner attacked his conviction of grand larceny in state court for the theft from a department store of five dresses. In the criminal trial, the store’s assistant manager testified that the tagged selling price of the five dresses was $424.00 and their cost price was $211.00. 597 F.Supp. at 116. The petitioner objected to the testimony concerning cost on hearsay grounds. In the habeas case, the petitioner asserted that “the tagged selling price of the dresses is not the test of market value nor can it be the basis for testimony, but rather that fair market value must be established in some other fashion.” Id. at 115.

In dismissing the habeas petition, the district judge wrote that “[t]he general rule in a shoplifting case is that uncontradicted evidence that merchandise was displayed in a retail establishment for regular sale at a marked price representing its retail price can serve as sufficient circumstantial evidence of fair market value.” Id. at 117. The judge also wrote that “[c]ourts have stated that the tagged retail price serves as ‘competent evidence,’ ” id. (quoting Calbert v. State, 670 P.2d 576, 576 (Nev. 1983)), “or, alternatively, that, though hearsay, the price tag is ‘a document prepared or entry made in the regular course of business,’ ” id. at 118 (quoting Lauder v. State, 195 A.2d 610, 611 (Md. 1963)).

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Cite This Page — Counsel Stack

Bluebook (online)
516 S.E.2d 475, 258 Va. 3, 1999 Va. LEXIS 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-commonwealth-va-1999.