State v. McPhie

662 P.2d 233, 104 Idaho 652, 1983 Ida. LEXIS 432
CourtIdaho Supreme Court
DecidedApril 18, 1983
Docket14233
StatusPublished
Cited by31 cases

This text of 662 P.2d 233 (State v. McPhie) is published on Counsel Stack Legal Research, covering Idaho 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. McPhie, 662 P.2d 233, 104 Idaho 652, 1983 Ida. LEXIS 432 (Idaho 1983).

Opinions

SHEPARD, Justice.

This is an appeal from a conviction of grand larceny and being a persistent violat- or of the law. Defendant-appellant McPhie was tried on charges of second degree burglary, grand larceny and being a persistent violator of law. The jury returned a verdict of not guilty as to burglary but guilty as to grand larceny, following which McPhie admitted to the charge of being a persistent violator. An indeterminate sentence of twelve years was imposed. On appeal, McPhie alleges error in certain evidentiary rulings and alleges that his sentence was unduly harsh. We affirm.

On June 21, 1980, security employees of a Payless Drug Store observed McPhie and one Hiatt enter the store and, deeming them to be acting suspiciously, watched them from a catwalk above the store. After McPhie and Hiatt appeared to “scout out” the store, Hiatt picked up a radio-cassette player and both McPhie and Hiatt left the store. Hiatt fled, but was stopped and arrested within a mile of the store, while McPhie was later detained and arrested.

McPhie asserts error in the admission of two of the State’s exhibits, i.e., a photograph of the interior of the store and the stolen radio-cassette player to which was still attached a price tag. The photograph is a “bird’s-eye view” of the store taken from the security catwalk depicting a spot where McPhie allegedly stopped and [654]*654looked over the merchandise. The photograph shows a member of the security force standing and looking, as was McPhie on the day in question. McPhie asserts that the photograph is a “mock-up,” and that proper foundation has not been laid therefor.

We hold that the photograph was admissible as relevant under the standard of State v. Marlar, 94 Idaho 803, 809, 498 P.2d 1276, 1282 (1972):

“Relevancy, as defined in the Idaho cases, encompasses two main aspects. The first, traditionally denominated ‘materiality,’ requires that the issue for which the specific evidence is offered to prove be a material issue in the case. The second aspect of relevancy concerns the probative value of the offered evidence. Evidence offered to prove a material issue in the case is not relevant unless it logically tends to prove or disprove that issue. G. Bill, Handbook of Evidence for the Idaho Lawyer, 101-02 (1957); McCormick, [Law of Evidence] at 314-15 [1954].”

Accord State v. Hokenson, 96 Idaho 283, 285, 527 P.2d 487, 489 (1974).

Further, we hold that the photograph is illustrative of the conditions and arrangements of the store interior, as viewed from the position occupied by security personnel at the time of the offense. As was stated in State v. Kleier, 69 Idaho 278, 286, 206 P.2d 513, 518 (1949):

“Photographs and pictures relevant to describe a person, place or thing are admissible for the purpose of explaining and applying the evidence and assisting the jury in understanding the case. Such evidence is used to clarify and present a more comprehensive explanation of the physical facts than could be obtained from the testimony of the witnesses.
“Where photographs are used to throw light on the issues and surrounding circumstances, such photographs are properly admitted.”

“Admission of photographs rests largely within the discretion of the trial judge, and since no abuse of discretion has been shown, we consider them properly admitted even though they may have the additional effect of tending to excite the emotions of the jury.” State v. Hokenson, supra, 96 Idaho at 286-287, 527 P.2d 487. See also, State v. Padilla, 101 Idaho 713, 620 P.2d 286 (1980); State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973); State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. denied, 401 U.S. 942, 91 S.Ct. 947, 28 L.Ed.2d 223 (1971); State v. Martinez, 92 Idaho 183, 439 P.2d 691, cert. denied, 393 U.S. 945, 89 S.Ct. 317, 21 L.Ed.2d 283 (1968). Even assuming that there is some slight possibility of prejudice because of the presence in the picture of another person standing in the position of McPhie, we hold that, “within the circumstances of the trial and considering the general authority, the admission of a posed photograph may have been improper but appellants failed to establish how it constituted prejudicial error sufficient in this instance to require reversal and a new trial.” State v. Oldham, 92 Idaho 124, 130, 438 P.2d 275, 281 (1968).

McPhie does not assert error in the admission of the stolen cassette recorder itself, but argues that the price tag attached to the recorder was hearsay and thus inadmissible. The recorder, together with its price tag, was admitted on the basis of the testimony of a management employee, who testified to the authenticity of the tag and that from the price tag code he could determine that the store had paid $119.43 for the item. He said that, on the basis of his expertise, he approximated the market value of the article to be that printed on the tag, $179.97.

The price tag meets the test of relevance under Marlar, supra, in that it, along with the verbal testimony, establishes the value of the stolen item, which is an essential element of the grand larceny charge. See I.C. §§ 18-4601 and -4604 (repealed 1981), defining grand larceny as the felonious taking of property valued at more than $150.

In Isaacson v. Obendorf, 99 Idaho 304, 309, 581 P.2d 350, 355 (1978), this Court adopted the following definition of hearsay:

“Hearsay evidence is defined as follows in McCormick on Evidence § 246 (E. Cleary ed. 1972): ‘Hearsay evidence is [655]*655testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion of the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ See also 5 Wigmore, Evidence § 1361 (Chadbourn rev. 1974); Bell, Handbook of Evidence for the Idaho Lawyer 126 (2d ed. 1972).” (Emphasis added.)

In the instant case the expert testimony concerning the value of the recorder depended largely upon the content of the writing on the price tag and hence the price tag must be considered hearsay. Even accepting the hearsay character of the price tag admitted in evidence, we hold nevertheless that the price tag falls within the business records exception to the hearsay rule as stated in I.C. § 9-414:

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

Related

People v. Portillo
California Court of Appeal, 2023
State v. Roman-Lopez
524 P.3d 864 (Idaho Supreme Court, 2023)
State v. Lee Odell Fair
327 P.3d 989 (Idaho Court of Appeals, 2014)
Stephans v. State
262 P.3d 727 (Nevada Supreme Court, 2011)
State v. Harris
117 P.3d 135 (Idaho Court of Appeals, 2005)
State v. McDonald
108 P.3d 434 (Idaho Court of Appeals, 2005)
State v. Williams
878 P.2d 213 (Idaho Court of Appeals, 1994)
State v. Medrano
844 P.2d 1364 (Idaho Court of Appeals, 1992)
State v. Garza
487 N.W.2d 551 (Nebraska Supreme Court, 1992)
State v. Repici
835 P.2d 1349 (Idaho Court of Appeals, 1992)
State v. Coffin
834 P.2d 909 (Idaho Court of Appeals, 1992)
State v. Chavez
816 P.2d 1017 (Idaho Court of Appeals, 1991)
State v. Hoak
816 P.2d 371 (Idaho Court of Appeals, 1991)
State v. Holton
813 P.2d 923 (Idaho Court of Appeals, 1991)
State v. Robison
811 P.2d 500 (Idaho Court of Appeals, 1991)
State v. Bolton
810 P.2d 1132 (Idaho Court of Appeals, 1991)
State v. Young
807 P.2d 648 (Idaho Court of Appeals, 1991)
State v. Olson
806 P.2d 963 (Idaho Court of Appeals, 1991)
State v. Kern
805 P.2d 501 (Idaho Court of Appeals, 1991)
State v. Paramore
804 P.2d 1366 (Idaho Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
662 P.2d 233, 104 Idaho 652, 1983 Ida. LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcphie-idaho-1983.