State v. Kleist

895 P.2d 398, 126 Wash. 2d 432, 1995 Wash. LEXIS 162
CourtWashington Supreme Court
DecidedMay 18, 1995
Docket61920-4
StatusPublished
Cited by31 cases

This text of 895 P.2d 398 (State v. Kleist) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kleist, 895 P.2d 398, 126 Wash. 2d 432, 1995 Wash. LEXIS 162 (Wash. 1995).

Opinions

Dolliver, J.

— The present case concerns the type of evidence sufficient for and relevant to the valuation of stolen goods to establish degree of theft. Defendant Sandra Sue Kleist has admitted that on August 5, 1992, she took seven articles of clothing without paying from The Bon Marché in downtown Spokane, Washington. She now challenges her conviction for second degree theft.

A guilty verdict of second degree theft demands findings of fact both of a taking and of the value of the goods:

A person is guilty of theft in the second degree if he or she commits theft of:
(a) Property or services which exceed(s) two hundred and fifty dollars in value, but does not exceed one thousand five hundred dollars in value . . .[.]

RCW 9A.56.040(l)(a). Because Defendant stipulated to the taking, the only issue at trial concerned the degree of the [434]*434charge. The degree resulted from a valuation of the goods according to the price tags of the items, amounting to just over $250.

Defendant sought to introduce evidence at trial that the sale price of the same goods at a nearby Nordstrom amounted to less than $250, making the appropriate charge third degree theft. The trial court ruled that evidence of the regular retail prices charged by similar, nearby stores was admissible, but evidence of sale prices or prices from discount stores was inadmissible. At trial, the court specifically excluded testimony from a Nordstrom buyer regarding sale prices and pricing structures for the same items on the same day at the Spokane Nordstrom.

The trial court entered a judgment of guilty as charged on November 20, 1992, and sentenced Defendant to 10 days, with credit for 5 days’ time served and 5 days converted to 40 hours’ community service. The Court of Appeals affirmed the trial court’s ruling and verdict. State v. Kleist, 74 Wn. App. 429, 873 P.2d 587 (1994). We reverse and remand to the trial court.

Defendant contests the State’s valuation on two theories: the State’s evidence was insufficient to prove value and the trial court erred by excluding evidence of Nordstrom sale prices. The Legislature has defined "value” for degrees of theft:

"Value” means the market value of the property or services at the time and in the approximate area of the criminal act.

RCW 9A.56.010(12)(a). Criminal case law has derived a definition for market value from that developed in civil cases. State v. Clark, 13 Wn. App. 782, 787, 537 P.2d 820 (1975); see State v. Rowley, 74 Wn.2d 328, 334, 444 P.2d 695 (1968) (eminent domain); McCurdy v. Union Pac. R.R., 68 Wn.2d 457, 467, 413 P.2d 617 (1966) (damages in negligence action); Donaldson v. Greenwood, 40 Wn.2d 238, 252, 242 P.2d 1038 (1952) (trust property).

[435]*435"Market value” is defined in this state as the price which a well-informed buyer would pay to a well-informed seller, where neither is obliged to enter into the transaction.

Clark, 13 Wn. App. at 787; see also State v. Farrer, 57 Wn. App. 207, 209, 787 P.2d 935 (1990); State v. Hancock, 44 Wn. App. 297, 302, 721 P.2d 1006 (1986); State v. Coleman, 19 Wn. App. 549, 551, 576 P.2d 925 (1978). This case turns on the distinction between the sufficiency of the State’s evidence to prove value and the admissibility of a defend-ant’s evidence to rebut the State’s valuation.

I

Sufficiency of Evidence

Defendant challenges the sufficiency of the State’s evidence on the basis of lack of foundation. Evidence is sufficient to support a criminal conviction if it would permit any rational trier of fact, viewing the evidence in the light most favorable to the State, to find the essential elements of the offense beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Defendant contends the State’s only testimony on the issue of value, from the detaining security guard and The Bon Marché divisional sales manager, discussed The Bon Marché retail prices without establishing foundation to show value.

Defendant relies on Coleman, where the Court of Appeals decided the admission of price tags unaccompanied by foundation testimony from qualified witnesses was insufficient to support the value element of grand larceny. Coleman, 19 Wn. App. at 553-54. The State, however, urges us to follow Division One’s more recent decision in State v. Rainwater, 75 Wn. App. 256, 876 P.2d 979 (1994), where the Court of Appeals adopted the Coleman dissent to hold price tags are subject to judicial notice "of the fact that price tags on retail clothing generally reflect the market value of the clothing, since this fact is both commonly known and capable of ready demonstration.” Rainwater, at 261; see Coleman, 19 Wn. App. at 555 (Andersen, J., dissenting). The State thus argues foundation testimony was [436]*436unnecessary to establish market value from The Bon Marché price tags.

Both Coleman and Rainwater are distinguishable from the present case. Rainwater cannot apply because judicial notice is inappropriate where the accuracy of the source is reasonably questioned. ER 201(b); Tyler Pipe Indus., Inc. v. Department of Rev., 96 Wn.2d 785, 795-96, 638 P.2d 1213 (1982). In the present case Defendant disputed the accuracy of the tags as evidence of not only market value, but also retail price.

Thus, as in Coleman, admission of the price tags as evidence of value necessitated foundation testimony. Nonetheless, unlike Rainwater or Coleman, the State did offer adequate foundation testimony showing the tags accurately reflected The Bon Marché valuation of the goods: the security guard checked the tags against that day’s computerized inventory records, and the sales manager testified as to the accuracy of this records system and that retail prices were non-negotiable. See Farrer, 57 Wn. App. at 209-10. In light of this foundation testimony, Defendant’s challenge to the sufficiency of the evidence of value must fail.

II

Admissibility of Sale Prices

"Admission of evidence lies largely within the sound discretion of the trial court”. Davis v. Globe Mach. Mfg. Co.,

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Bluebook (online)
895 P.2d 398, 126 Wash. 2d 432, 1995 Wash. LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kleist-wash-1995.