Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Carrico, S.J.
LAWRENCE MCDOWELL
OPINION BY
v. Record No. 060989 SENIOR JUSTICE HARRY L. CARRICO
March 2, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The defendant, Lawrence McDowell, was convicted in a bench
trial of grand larceny in violation of Code § 18.2-95 and grand
larceny with intent to sell and distribute property with a value
of $200.00 or more in violation of Code § 18.2-108.01(A). Both
convictions resulted from the shoplifting by the defendant and
an accomplice of merchandise from a Rite-Aid drug store in the
City of Norfolk. In a published opinion, the Court of Appeals
affirmed both convictions. McDowell v. Commonwealth, 48 Va.
App. 104, 628 S.E.2d 542 (2006). This Court awarded the
defendant an appeal.
The record shows that Corey L. Woods, Sr., an undercover
detective employed by Rite-Aid, observed the defendant and his
accomplice removing merchandise from store shelves and stuffing
it into their clothing. However, the two thieves managed to
escape from the store with the stolen merchandise and none of it
was ever recovered.
In shoplifting cases, Detective Woods uses a “Telethon gun”
to conduct an inventory and verify what merchandise has been
stolen. A Telethon gun is a hand-held computer device connected
to Rite-Aid’s computer inventory system and linked with the
store’s cash registers. The gun reflects inventory on hand and
is automatically updated immediately when merchandise is added
or is sold.
Within three to four hours before the theft in question
occurred, a store-wide inventory had been conducted with the use
of a Telethon gun by an outside contractor that happened to be
the same company that supplied Telethon guns to Rite-Aid for
inventory purposes. With this inventory as his database,
Detective Woods used the Telethon gun to inventory what
merchandise was on hand after the theft and to produce a “Box-
List Sheets Report” (the Report). The Report listed merchandise
missing between the time the store-wide inventory was conducted
on the day in question and the time Detective Woods used the
Telethon gun to conduct his inventory after the defendant and
his accomplice had left “gaps” and “holes” and “almost empty”
shelves from which they had removed merchandise. The Report
described the stolen items and showed the “STORE SELLING PRICE”
of each item, totaling $1,179.93.
In the trial court, the Commonwealth offered the Report
into evidence to establish the value of the stolen merchandise.
Over the defendant’s objection that the Report was hearsay, the
trial court admitted the Report under the business record
2
exception to the hearsay rule, but only as “circumstantial
evidence of a price on a particular date.” The defendant’s sole
contention on appeal to this Court is that the trial court erred
in admitting the Report into evidence as a business record and
the Court of Appeals erred in affirming the trial court’s
ruling.1
The defendant argues that the Report does not qualify as a
business record because the Commonwealth did not call a
representative of the outside contractor or a witness from Rite-
Aid’s management to verify the inventory conducted three to four
hours before the theft or to testify that it was performed in
the regular course of business. The defendant also argues that
“the inventory was not within [Woods’] personal knowledge nor
was he sufficiently familiar with the regularity of those
inventories in the course of business at Rite-Aid.”
“[H]earsay evidence is inadmissible unless it falls within
one of the recognized exceptions to the hearsay rule,” and “the
party attempting to introduce a hearsay statement has the burden
of showing the statement falls within one of the exceptions.”
Robinson v. Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476-77
1
This Court has previously held that “[i]n determining the
admissibility of computer records, when the argument has been
advanced that they are inadmissible hearsay, [this Court has]
employed the traditional business records exception to the
hearsay rule. Kettler & Scott, Inc. v. Earth Technology Cos.,
Inc., 248 Va. 450, 457, 449 S.E.2d 782, 785 (1994).
3
(1999). “As a recognized exception to the hearsay rule, [this
Court has] adopted the modern Shopbook Rule, allowing in given
cases the admission into evidence of verified regular entries
without requiring proof from the original observers or record
keepers.” Neeley v. Johnson, 215 Va. 565, 571, 211 S.E.2d 100,
106 (1975). See also Sparks v. Commonwealth, 24 Va. App. 279,
282, 482 S.E.2d 69, 70 (1997).
“In many cases,. . . practical necessity requires the
admission of written factual evidence based on considerations
other than the personal knowledge of the recorder, provided
there is a circumstantial guarantee of trustworthiness.”
"Automatic" Sprinkler Corp. of America v. Coley & Petersen,
Inc., 219 Va. 781, 792, 250 S.E.2d 765, 773 (1979). “The
trustworthiness or reliability of the records is guaranteed by
the regularity of their preparation and the fact that the
records are relied upon in the transaction of business by the
person or entities for which they are kept” and they are “kept
in the ordinary course of business made contemporaneously with
the event by persons having the duty to keep a true record.”
Id. at 793, 250 S.E.2d at 773. The final test “is whether the
documents sought to be introduced are the type of records which
are relied upon by those who prepare them or for whom they are
prepared.” Id.
4
These principles were applied in a strikingly similar
situation in Ashley v. Commonwealth, 220 Va. 705, 261 S.E.2d 323
(1980). There, in testimony offered to establish the number,
weight, and value of hams the accused had stolen from the
Gwaltney company in Smithfield, the company’s security director
used an inventory prepared by other employees several days
before the theft. The inventory records were no longer in
existence at the time of trial. The accused argued that this
testimony “was based upon business records that [the security
director] did not maintain, rather than upon his personal
observation, and was not admissible under the modern Shopbook
Rule.” Id. at 707, 261 S.E.2d at 324. This Court rejected the
argument, noting that the inventory records were “compiled in
the regular course of employment as a security director, both
from inventory taken and maintained by other employees in the
regular course of business and from his own personal
calculation.” Id. at 708, 261 S.E.2d at 325.
The only distinction between Ashley and this case is that
the inventory was conducted there by other Smithfield employees
while it was conducted here by an outside contractor. But this
is a distinction without a difference. The outside contractor
was an entity “having the duty to keep a true record,” Sprinkler
Corp., 219 Va. at 793, 250 S.E.2d at 773, and it conducted
inventories at the Rite-Aid store “maybe once every six months.”
5
Furthermore, Detective Woods testified that he was an
eight-year employee of Rite-Aid, that he was familiar with how
Rite-Aid kept “track of their inventory,” and that he was
“knowledgeable” about the inventory conducted earlier on the day
of the theft. That inventory was conducted with Rite-Aid’s own
Telethon gun, Woods had been trained by the supplier of the gun
on its use “[t]o conduct inventory,” and he had used the gun to
generate “Box-List Sheets Reports” for Rite-Aid over a period of
four or five years “in many cases and many times” in his
“capacity as a loss prevention officer” and “as part of [his]
job typically,” that is to say, in the regular course of
business.
Hence, there was a “regularity of . . . preparation” of
“Box-List Sheets Reports” upon which Rite-Aid relied “in the
transaction of business,” thus guaranteeing “the trustworthiness
or reliability” of the Report in this case. Sprinkler Corp.,
Id. at 793, 250 S.E.2d at 773. In these circumstances, it was
not necessary for the Commonwealth to call a representative of
the outside contractor or a witness from Rite-Aid’s management
to verify the inventory conducted three to four hours before the
theft or to testify that it was performed in the regular course
of business.2
2
The defendant has argued on appeal that the Commonwealth
“made no attempt to show that [a representative of the outside
6
We find that the Report qualifies as a business record
under the Shopbook Rule. The trial court did not err,
therefore, in admitting the Report into evidence, and the Court
of Appeals did not err in approving the trial court’s ruling.
Accordingly, the judgment of the Court of Appeals will be
affirmed.
Affirmed.
contractor or a witness from Rite-Aid] were unavailable.”
However, the defendant did not raise this point in the trial
court, and this Court will not notice it now. Rule 5:25.
7