COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton,* Judges Frank and Clements
Argued at Chesapeake, Virginia
LAWRENCE MCDOWELL
OPINION BY
v. Record No. 2350-04-1 CHIEF JUDGE WALTER S. FELTON, JR.
APRIL 18, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Norman A. Thomas, Judge
Roy B. Martin, III (Office of the Public Defender, on brief), for
appellant.
Karri B. Atwood, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
Lawrence McDowell (“appellant”) appeals his convictions of grand larceny in violation
of Code § 18.2-95, and larceny with the intent to sell or distribute stolen property in violation of
Code § 18.2-108.01, both arising out of the theft of over-the-counter medications from a
Rite-Aid store. Appellant argues that the trial court erred in admitting into evidence a “Box-List
Sheets Report,”1 generated using a “Telethon gun,”2 to establish the value of the stolen
merchandise, and that it erred in finding the evidence sufficient to convict him of the charges.
Finding no error, we affirm the judgment of the trial court.
*
On April 1, 2006, Judge Felton succeeded Judge Fitzpatrick as chief judge.
1
The “Box-List Sheets Report” is a printed, computer-generated, report obtained by
Rite-Aid employees using the “Telethon gun.” See Note 2.
2
The “Telethon gun” is a hand-held computer device used by Rite-Aid employees to
maintain the store’s inventory.
BACKGROUND
On the evening of May 24, 2004, Corey L. Woods (“Woods”) was employed as a loss
prevention officer at a Rite-Aid store in the City of Norfolk. Woods observed appellant park his
car near the rear of the store, even though there were parking spots available near the front of the
store. He then observed appellant and another male enter the store through its front door and
proceed to Aisle 13, where over-the-counter medications were displayed. Woods, dressed in
plain-clothes, observed appellant from the end of Aisle 13 as he and the man with him began
“shoving” large quantities of merchandise from the shelves into their pants. He immediately
called the Norfolk Police Department and alerted the store’s assistant manager to the “shelf
sweep.”3 He directed the assistant manager to lock the front door of the store, displayed his
badge outside his clothing, and positioned himself near the cash register.
Appellant and his companion left Aisle 13, bypassed the cash register, and walked
towards Woods. He stopped them and identified himself as a security agent for Rite-Aid. The
two men became agitated and angry in response to Woods’ presence. He displayed his stun gun
and told them that the police were en route. He observed that their clothing looked “irregular”
and heard the “rattling” sound of pills coming from the clothing of the two men as they ran
towards the back of the store, leaving through the rear door in the stockroom. Woods
immediately ran outside and noted the make and model of appellant’s vehicle as appellant and
his companion drove away. Woods followed them to Portsmouth, where he contacted the
Portsmouth Police, but did not confront the two men.
Woods returned to Rite-Aid and observed that the section of Aisle 13 where he had
observed the men was “totally obliterated,” the “shelves were completely empty,” and that there
3
Rite-Aid employees refer to shoplifting incidents, when a “large quantity of
merchandise is missing,” as “shelf sweeps.”
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were “gaps” and “holes” where merchandise should have been located. He then used the
Telethon device to determine what merchandise was missing from the shelves, using the same
device to generate a Box-List Sheets Report. The Box-List Sheets Report listed merchandise
missing from Aisle 13 between the time Telethon employees conducted an inventory earlier that
day and when he used the Telethon device on his return to the store after following appellant and
his companion. The report listed item number, bar code, description, quantity, and store selling
price for the merchandise missing from Aisle 13 where Woods earlier had observed the men
removing the items.
The report produced by the Telethon device showed a large number of unsold items
missing from the shelves, including four units of “TRIM SPA CARB BLKER,” each valued at
$29.99, for a total value of $119.90; four units of “TRIM SPA FAT BLKER,” each valued at
$29.99, for a total value of $119.90; three units of “ZANTREX-3,” each valued at $49.00, for a
total value of $147.00; six units of “TRIM SPA EF,” each valued at $39.99, for a total value of
$239.90; 22 units of “PRILOSEC,” each valued at $10.99, for a total value of $241.70; and other
items with a total value of $310.60. The Box-List Sheets Report reflected that $1,179.93 worth
of merchandise was missing from the identified section of Aisle 13.
Appellant admitted at trial that he “inten[ded] [] to commit larceny” but when he saw
Woods, he “took the stuff off [his person] and left it on the aisle.” He also testified he was not
accompanied by anyone else during this incident.
Over appellant’s objection, the trial court admitted the Box-List Sheets Report into
evidence as a business record and as “circumstantial evidence of a price [of items] on [that]
particular date.” Appellant was convicted of both charges. This appeal followed.
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I.
ADMISSIBILITY OF THE BOX-LIST SHEETS REPORT
Appellant contends that the trial court erred in admitting the Box-List Sheets Report
under the business records exception to the hearsay rule, arguing that the underlying inventory
on which the report was based was not authenticated by a Telethon representative or a Rite-Aid
store manager. He contends that, because the digital information stored in the Telethon device
was not within Woods’ personal knowledge, he was not qualified to authenticate the Box-List
Sheets Report as a business record, and that it was therefore not admissible under that exception
to the hearsay rule.
“[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, 477 (1999). “Virginia follows the modern
‘shopbook’ rule or business records exception to the hearsay rule, which allows introduction into
evidence of verified regular [business] entries without requiring proof from the original
observers or record keepers.” Sparks v. Commonwealth, 24 Va. App. 279, 282, 482 S.E.2d 69,
70 (1997) (citation omitted). Moreover, “[t]he trustworthiness or reliability of [business] 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.” Kettler & Scott,
Inc. v. Earth Tech. Cos., Inc., 248 Va. 450, 459, 449 S.E.2d 782, 785-86 (1994) (citations
omitted).
Here, the trial court admitted the Box-List Sheets Report, a computer-generated inventory
report, generated by Woods using the hand-held computer device. We have previously held that
“[i]n determining the admissibility of computer records . . . Virginia has employed the traditional
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business records exception to the hearsay rule.” Fitzhugh v. Commonwealth, 20 Va. App. 275,
280, 456 S.E.2d 163, 165 (1995). We have also noted that computer “records are admissible
under the business records exception even though [the witness] did not make the computer
entries nor was he the custodian of [] company records,” because the witness “had knowledge of
how [the] records were compiled and maintained, and he had access to those records as an
integral part of his responsibilities as a fraud investigator for his employer.” Lee v.
Commonwealth, 28 Va. App. 571, 576, 507 S.E.2d 629, 629 (1998); see Simpson v.
Commonwealth, 227 Va. 557, 566-67, 318 S.E.2d 386, 392 (1984) (where taxi meter recordings
were found to be admissible through the testimony of a bookkeeper as circumstantial evidence to
prove the amount of money a robbery victim had in his possession when the crime occurred); see
also Jackson v. State, 877 So. 2d 816, 817 (Fla. Ct. App. 2004) (“[C]omputer printouts, like
business records, are admissible if the custodian or other qualified witness is available to testify
as to manner of preparation, reliability and trustworthiness.”); F.D.I.C. v. Carabetta, 739 A.2d
311, 319 (Conn. App. Ct. 1999) (“What is crucial is not the witness’ job description, but rather
his or her knowledge of the basic elements that afford reliability and trustworthiness to computer
printouts.”).
The evidence proved that Rite-Aid maintained a computerized inventory in the regular
course of its business, and regularly used the Telethon device to determine the status of its
inventory. Woods testified that all Rite-Aid store cash registers were connected to the Telethon
device, “a simple little hand []tool that the associates use, the cashiers use, the management use
and myself and my partner use,” and which was linked to the store’s computer inventory. The
Telethon device allowed Rite-Aid employees to scan merchandise to determine “what’s on the
shelf and what’s at a store and what’s on hand.” The Telethon device tracked new inventory, as
well as existing stock, and all Rite-Aid sales were automatically communicated to it. The
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Telethon device used by Woods was also electronically linked to a printer, allowing Rite-Aid
employees to generate a Box-List Sheets Report printout of the computer inventory on a
particular aisle of the store.
On the date of the incident, Woods had been employed by Rite-Aid for eight years. He
had been trained in the use of the Telethon device at Rite-Aid corporate headquarters to conduct
inventory assessments and to track missing merchandise following theft incidents. He regularly
used the Telethon device in the normal course of his employment for “four or five” years. In
overruling appellant’s contention that the report was improperly authenticated, the trial court
specifically noted:
The Court is going to admit the document under these
circumstances especially with respect to Mr. Woods’ training on
the matter as routine access to these types of reports and his
discussion of how the inventory is updated through the database so
that they are ab[le] to rely on these documents . . . in the course of
routine business transaction[s] or routine business operations of a
Rite-Aid store. The court finds it is a business record.
We find that trial court did not err in admitting the Box-List Sheets Report under the
business records exception to the hearsay rule.
II.
SUFFICIENCY OF THE EVIDENCE
When examining a challenge to the sufficiency of the evidence, an
appellate court must review the evidence in the light most
favorable to the prevailing party at trial and consider any
reasonable inferences from the facts proved. The judgment of the
trial court is presumed to be correct and will be reversed only upon
a showing that it is plainly wrong or without evidence to support it.
Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005) (citations omitted).
Appellant contends that the evidence was insufficient to convict him because it failed to
prove, as a matter of law, the value of the items stolen. He argues that, because the report did not
reflect the possibility that some of the missing merchandise was on sale, the evidence was
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insufficient as a matter of law to establish that the value of the merchandise taken exceeded
$200.4 No evidence was introduced that any item listed on the Box-List Sheets Report as
missing from Aisle 13 was on sale. See Robinson, 258 Va. at 10, 516 S.E.2d at 479 (price tags
regularly affixed to merchandise constitute prima facie evidence of value of goods under
exception to hearsay rule).
Grand larceny occurs when a person “commits simple larceny not from the person of
another of goods and chattels of the value of $200 or more.” Code § 18.2-95. “In a grand
larceny prosecution, the burden is upon the Commonwealth to prove beyond a reasonable doubt
that the value of the goods stolen equals at least the amount fixed by statute in definition of the
offense.” Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 792 (1981) (citations
omitted). In Fitzhugh, we found that “the amount that is recorded in the cash register and
appears in the register display window and on the register’s tape, represents the price which is
charged for the item during that pricing period.” 20 Va. App. at 279, 456 S.E.2d at 165.
Similarly, the computer inventory records stored in the Telethon device reflected the price on
each of the items in the Rite-Aid store on the day of this incident.
The Box-List Sheets Report demonstrated that the total value of the missing merchandise
from Aisle 13 was $1,179.63, well above the $200 statutory threshold for grand larceny. Even
accepting appellant’s contention that some items on the Box-List Sheets Report might not reflect
the price of items on sale, the total amount of the items listed on the report as missing would
have to be discounted by over 80% to reduce the value of the missing items to less than $200, a
matter not supported by the record. Viewed in the light most favorable to the Commonwealth,
4
Testimony established that any item on sale would be reduced in price at the sales
register when scanned.
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the record reflects sufficient evidence from which the trial court could infer beyond a reasonable
doubt that appellant stole merchandise from Rite-Aid valued at $200 or more.
CONCLUSION
We find, from the record before us, that the trial court did not err in admitting the
Box-List Sheets Report as a business records exception to the hearsay rule, and that credible
evidence before the trial court was sufficient to convict appellant of grand larceny and larceny
with the intent to sell or distribute stolen property. Accordingly, we affirm the judgment of the
trial court.
Affirmed.
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