Robinson v. Commonwealth

Present: All the Justices

LEROY ROBINSON, JR.
OPINION BY
v. Record No. 981691 CHIEF JUSTICE HARRY L. CARRICO
June 11, 1999
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

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 under 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

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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

3
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 the 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

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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

5
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)).

In White, the trial court admitted into evidence over

a hearsay objection price tags affixed to four items of

stolen clothing as proof of the items’ value. Affirming

this action, the appellate court stated:

The defendant’s arguments against the
admissibility of these tags are without merit. We are
unpersuaded by the argument that such tags are
technically excludable as hearsay unless qualified
under the business records exception . . . since the
inherent unreliability of hearsay is not present in
this type of evidence. Rather, the fact that price
tags generally reflect market value may be judicially
noted, since this fact is both commonly known and
capable of ready demonstration.

437 A.2d at 148.

In Norris, the accused was convicted of shoplifting a

television set valued at more than $100.00. As in the

present case, the only proof of the value of the set

consisted of the testimony of two store security officers

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“to the fact that the set carried a price tag of $109.95,

and that that was its price (value).” 475 S.W.2d at 555.

The appellate court affirmed the conviction, stating as

follows: “That the television set was displayed for sale

over a period of time with a certain price tag upon it is

not hearsay, but fact; and is evidence that the tag

reflected its retail value.” Id. at 555-56. The court

also indicated that the testimony would be admissible under

the business records exception to the hearsay rule. Id. at

556.

The Commonwealth also cites Armstrong v. State, 516

So.2d 806, 809 (Ala. Crim. App. 1987) (value of stolen item

established when box containing stolen item is marked with

price tag and admitted into evidence); Watson v. State, 415

So.2d 128, 128 (Fla. Dist. Ct. App. 1982) (testimony of

department store employee concerning contents of price tag

not hearsay); Kowalczk v. State, 394 S.E.2d 594, 595 (Ga.

App. 1990) (testimony of store manager as to actual retail

price of stolen merchandise sufficient to establish value);

People v. Drake, 475 N.E.2d 1018, 1020-22 (Ill. App. 2d.

1985) (information shown on stickers attached to stolen

items admissible and competent evidence); Lauder, 195 A.2d

at 611 (price tags admissible where tag is attached at time

of arrest and similar tags are attached to other articles

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throughout store); Lacy v. State, 432 So. 2d 1205, 1206

(Miss. 1983) (adopting judicial notice rationale of State

v. White, supra, in holding price tags not inadmissible on

hearsay grounds when tags attached at time of theft, no

reduced price sale in progress at store, and witness had

training in pricing); Calbert, 670 P.2d at 576 (price tags

attached to goods at time of theft competent evidence of

value); City of Albuquerque v. Martinez, 604 P.2d 842, 843

(N.M. App. 1979) (price tag proper source from which to

infer precise value of stolen item); State v. Rainwater,

876 P.2d 979, 982 (Wash. Ct. App. 1994) (adopting judicial

notice rationale of State v. White, supra, in holding price

tags admissible when case involves retail store commonly

known to sell goods for non-negotiable price shown on tag).

The defendant cites some of the same cases and, in

addition, State v. Odom, 393 S.E.2d 146, 151 (N.C. App.

1990) (security employee’s experience qualified price tags

as records kept in regular course of business and knowledge

gained from tags themselves did not bar their admission as

evidence of value), and State v. Kleist, 895 P.2d 398, 400

(Wash. 1995) (admission of price tags as evidence

necessitated foundation testimony which was supplied by

store’s security guard and sales manager).

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 In analyzing these cases, it is interesting to note

that not one holds that price tags or testimony relating to

price tags is inadmissible per se. 1 All hold price-tag

evidence admissible, but give varying reasons, or no reason

at all, for admissibility. Some say the evidence is

admissible because what is asserted is not hearsay, others

because the evidence qualifies under the business records

exception to the hearsay rule, some pursuant to the

judicial notice rationale, and some when foundation

testimony is provided.

Apparent throughout, however, is a reluctance on the

part of the courts involved to say that something is

hearsay or, if it is, that an exception to the hearsay rule

should be recognized to make it admissible. We are of

opinion that what we are dealing with in this case is

1
In a case not cited by the parties, the Supreme Court
of Colorado held that price tags constituted hearsay and
were inadmissible because no foundation testimony was
presented to establish the value of the stolen items or to
show that the price tags were accurate and prepared in the
ordinary course of business so as to bring them within the
business records exception to the hearsay rule. People v.
Codding, 551 P.2d 192, 193 (Colo. 1976). The Colorado
legislature then enacted a statute providing that price
tags shall be prima facie evidence of value when theft
occurs from a store and that, in all cases where theft
occurs, hearsay evidence shall not be excluded in
determining the value of the thing involved. Colo. Rev.
Stat. § 18-4-414 (1985).

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hearsay 2 , that it is not admissible under any presently

recognized exception to the hearsay rule, 3 and that we

should consider recognizing an exception to the rule to

permit its admission.

What is involved here is a simple, uncomplicated

matter. Shoplifting is something that occurs thousands and

thousands of times throughout this country every day. It

is common knowledge that department and other stores

regularly affix price tags to items of merchandise and that

the tagged price is what a purchaser must pay to acquire an

item, without the opportunity to negotiate a reduced price

or to question how the tagged price was reached.

Under these circumstances, “the inherent unreliability

of hearsay is not present.” State v. White, 437 A.2d at

148. Therefore, it would be unreasonable and unnecessary

to require that in each case a merchant must send to court

not only a security person but also other personnel to

2
Cessna’s statement that “that’s what they’re sold
for,” if based on his personal experience in the store
rather than a mere reading of the price tags, would not be
hearsay, but there is nothing in the record indicating that
the statement was based on such personal experience.
3
The evidence involved in this case does not fall
within the business records exception to the hearsay rule
because no foundation was laid to establish “the regularity
of . . . [the] preparation” of the price tags or the
store’s reliance upon them “in the transaction of [its]
business.” Automatic Sprinkler Corp. v. Coley & Petersen,
Inc., 219 Va. 781, 793, 250 S.E.2d 765, 773 (1979).

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establish the reliability of the information shown on a

price tag affixed to an item that has been stolen.

Rather, we think the common-sense approach to the

problem is to recognize an exception to the hearsay rule in

shoplifting cases permitting the admission into evidence of

price tags regularly affixed to items of personalty offered

for sale or, in substitution, testimony concerning the

amounts shown on such tags when, as in this case, there is

no objection to such testimony on best evidence grounds.

While such evidence, when admitted, would suffice to make

out a prima facie case of an item’s value, the accused

would retain full opportunity to cross-examine adverse

witnesses and to present rebutting evidence on the issue of

value. See State v. White, 437 A.2d at 148. For example,

if a store conducts a sale but computes the reduced price

at the cash register rather than marking the change on the

price tag, an accused would be entitled to rely upon the

reduced price as evidence of the item’s value.

The evidence in the present case falls within the

exception we now recognize to the hearsay rule.

Accordingly, we will affirm the judgment of the Court of

Appeals.

Affirmed.

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JUSTICE KEENAN, with whom JUSTICE HASSELL joins,
dissenting.

JUSTICE KEENAN, with whom JUSTICE HASSELL joins,
dissenting.

The majority effectively shifts the burden of proving

the value of the merchandise at issue in a grand larceny

shoplifting prosecution from the Commonwealth to a criminal

defendant. In declaring that the "tagged price" of

merchandise constitutes prima facie proof of its value, the

majority essentially requires a criminal defendant to prove

his innocence by disproving unreliable evidence of value.

The majority apparently has not attended a "red dot"

sale at Hecht's Department Store, the retail merchant

involved in this appeal. It is common knowledge that, at

these and other comparable sales, price tags often bear

three or four different price markings. Under such

circumstances, price tags are, if anything, an inherently

untrustworthy form of evidence.

Without acknowledging this problem, the majority

simply invites a criminal defendant, after hearsay "price

tag" evidence is admitted, to cross-examine the

prosecution's witness or to present his own witnesses in an

attempt to establish the true retail value of the

merchandise. The majority also leaves to a defendant the

burden of proving whether a further reduced price would

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have been computed at the cash register. A holding that

places these evidentiary burdens on a criminal defendant

violates the principle cited by the majority that, in grand

larceny prosecutions, the Commonwealth bears the burden of

proving the value of merchandise taken beyond a reasonable

doubt. See Walls v. Commonwealth, 248 Va. 480, 481, 450

S.E.2d 363, 364 (1994); Wright v. Commonwealth, 196 Va.

132, 139, 82 S.E.2d 603, 607 (1954).

Without identifying any necessity for its new

exception to the hearsay rule, the majority chiefly relies

on the fact that other jurisdictions have created such an

exception. I respectfully submit that such a rationale is

without substance and should not be the controlling basis

for any decision of this Court. The business records

exception to the hearsay rule is alive and well in

Virginia. See, e.g., Kettler & Scott, Inc. v. Earth

Technology Companies, Inc., 248 Va. 450, 457, 449 S.E.2d

782, 785-86 (1994); Marefield Meadows, Inc. v. Lorenz, 245

Va. 255, 264, 427 S.E.2d 363, 368 (1993); Frye v.

Commonwealth, 231 Va. 370, 387, 345 S.E.2d 267, 279-80

(1986). By proper use of that exception, the Commonwealth

can present evidence of value in grand larceny shoplifting

cases.

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 Thus, I would reject the creation of a new exception

to the hearsay rule and hold that the hearsay evidence in

question was improperly admitted. Since the defendant has

not assigned error to the sufficiency of the evidence in

support of his conviction, I would remand the case for a

new trial on the indictment should the Commonwealth be so

advised.

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