Twine v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton,∗ Judges Frank and Clements
Argued at Chesapeake, Virginia

KEVIN EUGENE TWINE
OPINION BY
v. Record No. 1306-05-1 JUDGE JEAN HARRISON CLEMENTS
MAY 16, 2006
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF YORK COUNTY
Thomas N. Nance, Judge Designate

Joel W. Young (Phillips & Bartlett, P.C., on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.

Kevin Eugene Twine was convicted in a bench trial of grand larceny, in violation of Code

§ 18.2-95. The conviction arose from the shoplifting of numerous razors, over-the-counter

medications, and other merchandise from a Food Lion store. On appeal, Twine contends the trial

court erred in admitting into evidence, over his hearsay objection, a cash register receipt

generated by scanning the bar codes on the shoplifted items to establish the value of the stolen

merchandise. Twine further contends that, absent the improperly admitted register receipt, the

evidence was insufficient to sustain his conviction for grand larceny. Finding no error, we affirm

the judgment of the trial court and Twine’s conviction.

I. BACKGROUND

“Under familiar principles of appellate review, we view the evidence and all reasonable

inferences fairly deducible from that evidence in the light most favorable to the Commonwealth,

∗
On April 1, 2006, Judge Felton succeeded Judge Fitzpatrick as chief judge.
the party that prevailed below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d

876, 877 (2003). So viewed, the evidence established that, on the evening of July 29, 2004,

Twine and his accomplice, Demetrius Gray, were observed acting suspiciously in a Food Lion

store. The acting store manager called the police after he saw Twine placing merchandise in his

pants. Twine, the manager observed, had merchandise “all the way down [each] leg” of his

pants and was unable to “walk that well” as a result. Twine and Gray then left the store without

paying for the merchandise and went to their car.

Responding to the shoplifting call, Sheriff’s Deputy James Hazelwood arrived at the

Food Lion store as Twine and Gray were about to leave the parking lot. The acting store

manager pointed them out to the deputy, and he pulled their car over a few blocks away.

Sheriff’s Deputy Reginald Simms arrived at the scene of the stop soon thereafter.

When Deputy Hazelwood approached the car and asked Gray, the driver, if he had taken

anything from the Food Lion, Gray responded, “You got me, man. You got me.” He and Twine

then “started pulling stuff out of [their] pants,” placing it on the front seat between them. Both

men had stolen merchandise inside their “bulky” pants, including “down in the leg[s] of the

pants.” Gray informed the police that the items in his pants were from the Food Lion. After

collecting the stolen items from the front seat and placing them in a plastic bag, Deputy Simms

took the items “back to Food Lion to verify that they came from Food Lion and to get a total

price.”

At the Food Lion, Deputy Simms emptied the bag of stolen items “onto the belt” of a

cash register. The store’s “manager for the front end registers” then scanned and rung up the

stolen merchandise at the cash register, and a cash register receipt was produced showing the

name and price of each item and the total combined price of the merchandise. The receipt was

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given to Deputy Simms, who “turned it into [the Department’s property storage unit] with

Deputy Hazelwood.”

At trial, Deputy Hazelwood testified that he brought the cash register receipt given to him

by Deputy Simms to court that day. Asked to examine the receipt, which was marked for

identification purposes as Commonwealth’s Exhibit 1, Deputy Simms identified it as the cash

merchandise Twine and Gray had removed from their pants.

Ann Vance testified that she was on duty as a cashier at the Food Lion “[w]hen [Deputy

Simms] brought the [stolen] items back” into the store. Vance further testified that she was

standing right next to the register where the retrieved merchandise was scanned and that she

observed each item as it was being scanned and rung up at the register. According to Vance, the

stolen items did not have individual price tags on them. Instead, they had bar codes on them that

were used to scan and ring up the items at the register. “The bar codes,” Vance testified, “are the

price tags.”

Asked at trial to examine Commonwealth’s Exhibit 1, Vance testified that the date and

time imprinted on the receipt corresponded with the date and time she saw the stolen

merchandise being scanned and rung up. Vance further testified that, although she could not

independently recall and name each item she saw being rung up, the name and price of the items

listed on the cash register receipt corresponded with her “recollection and understanding of what

was rung up.” Asked to mark each item listed on the receipt that she saw being scanned and

rung up on the register, Vance testified that she saw every item on the receipt being scanned and

rung up. She then checked each item listed on the receipt. She also testified that, while she was

unable to independently recall and recite the exact prices of the items she saw being scanned, she

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was “familiar with the prices” of the stolen items and each item listed on the receipt appeared to

have the right price listed next to it.

Over Twine’s hearsay and best evidence objections, the trial court admitted the cash

each scanned item’s description and the item’s price. The receipt showed that the stolen

merchandise consisted of seventy-five items—twenty razors, five packs of razor-blade

cartridges, eighteen Tylenol products, thirteen Advil products, one Aleve product, eight Claritin

products, four Pepcid products, two Prilosec products, three various ointments, and one facial

cleanser—individually priced between $3.19 and $12.59. The receipt indicated that the total

pre-tax price of the seventy-five items of stolen merchandise was $693.29. Twine offered no

evidence at trial to refute the prices of the stolen items listed on the receipt.

At the conclusion of the Commonwealth’s case-in-chief and again at the conclusion of all

the evidence, Twine implicitly renewed his hearsay objection to the admission into evidence of

the cash register receipt, and moved to strike the evidence, arguing that, sans the improperly

admitted receipt, the evidence was insufficient to prove the stolen merchandise was valued at

$200 or more. The trial court denied the motions to strike and found Twine guilty as charged.

This appeal followed.

II. ANALYSIS

On appeal, Twine contends “the trial court misapplied the ‘price tag’ exception” to the

hearsay rule in this case because “no price tags were introduced and there was no testimony

concerning the amounts shown on the price tags.” Thus, he concludes, the trial court erred in

applying the price tag exception and allowing the Commonwealth to introduce the cash register

receipt into evidence to establish the value of the stolen merchandise, over his hearsay

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objection.1 Twine further contends that, without the inadmissible register receipt, the evidence

failed to show that the value of the shoplifted merchandise was at least $200 and was thus

insufficient to establish anything more than petit larceny. We hold that the register receipt was

properly admitted into evidence and the evidence was thus sufficient to sustain Twine’s

conviction for grand larceny.

To convict a shoplifter of grand larceny, the Commonwealth must prove beyond a

reasonable doubt that the value of the stolen merchandise was $200 or more. See Code

§ 18.2-95(ii); Parker v. Commonwealth, 254 Va. 118, 120-21, 489 S.E.2d 482, 483 (1997)

(“While evidence that an article has some value is sufficient to sustain a conviction for petit

larceny, when the value of the stolen item determines the grade of the offense, the

Commonwealth must prove the value to be at least the statutory amount.”). The relevant value is

the stolen merchandise’s retail value at the time of the shoplifting. See Robinson v.

Commonwealth, 258 Va. 3, 5, 516 S.E.2d 475, 476 (1999) (“The test is market value, and

particularly retail value.”); Parker, 254 Va. at 121, 489 S.E.2d at 483 (“The value of the stolen

property is measured as of the time of the theft, and the original purchase price may be admitted

as evidence of its current value.”).

Here, the Commonwealth offered the cash register receipt generated by scanning the bar

codes on the shoplifted items recovered from Twine and his accomplice to prove the aggregate

value of the stolen merchandise was $200 or more. A Food Lion cashier testified that she

observed each of the stolen items listed on the receipt being scanned and rung up at the Food

1
Despite acknowledging that the “trial judge sustained [his] objection to admission of the
[register receipt] under the business records exception to the hearsay rule,” Twine also devotes a
substantial portion of his appellate brief to a discussion of the applicability of that exception in
this case. Given the trial court’s sustainment of Twine’s objection under the business records
exception and our resolution of this case, we need not address the business records exception in
this appeal.
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Lion register. Relying on the price tag exception to the hearsay rule established in Robinson,

258 Va. at 10, 516 S.E.2d at 479, the trial court admitted the receipt into evidence over Twine’s

hearsay exception.2

It is well established that “[t]he admissibility of evidence is within the broad discretion of

the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of

discretion.” Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). However,

“a trial court ‘by definition abuses its discretion when it makes an error of law.’” Shooltz v.

Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. United States, 518

U.S. 81, 100 (1996)). “In determining whether the trial court made an error of law, ‘we review

the trial court’s . . . legal conclusions de novo.’” Rollins v. Commonwealth, 37 Va. App. 73, 79,

554 S.E.2d 99, 102 (2001) (quoting Timbers v. Commonwealth, 28 Va. App. 187, 193, 503

S.E.2d 233, 236 (1998)).

2
Although the trial court did not articulate the specific basis for its decision to admit the
register receipt into evidence, it is clear from the record that the trial court admitted the receipt
under the price tag exception set forth in Robinson. When the prosecutor first offered the receipt
for admission into evidence, she suggested it was admissible under the business records
exception. After discussion and further voir dire of Vance, the trial court sustained Twine’s
objection to admission under that exception. The prosecutor subsequently suggested the receipt
was admissible under Robinson, “where the value of the items stolen was established by the
testimony of the employees concerning the prices of the items.” The trial court agreed that
Robinson had “to do with . . . proving the value [of the stolen items] and not [the] business
records exception.” Twine’s counsel then argued:

Judge, I would object to [the admission into evidence of the
cash register receipt]. It’s not the best evidence of the items
themselves. There’s not a price tag exception in this case, and so
the items I think need to be here in order for the -- in evidence
themselves, and not simply a cash register receipt of items. I don’t
think that falls under the price tag exception, so I would object to
that.

Disagreeing with defense counsel and stating that “[a witness from Food Lion] by use of this
[cash register receipt] says she saw each of these items being scanned,” the trial court admitted
the receipt into evidence.
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In Robinson, our Supreme Court recognized an exception to the hearsay rule in

shoplifting cases allowing the admission into evidence of the information on price tags affixed to

the stolen items of merchandise to establish the value of that merchandise. 258 Va. at 10, 516

S.E.2d at 479. In that case, the appellant challenged his conviction of grand larceny for the theft

from a department store of three sports coats. Id. at 5, 516 S.E.2d at 476. The only evidence

presented by the Commonwealth at trial to prove the value of the stolen merchandise was the

testimony of two store employees regarding the amounts they had observed on the price tags

affixed to the coats. Id. at 6, 516 S.E.2d at 476. The appellant contended the trial court erred in

admitting the “double hearsay” testimony of store employees as evidence of the stolen

merchandise’s market value. Id. at 7, 516 S.E.2d at 477. Affirming the trial court’s action, the

Supreme Court stated as follows:

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 [145,] 148
[(Conn. Super. Ct. 1981)]. 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
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
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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.

Id. at 10, 516 S.E.2d at 478-79.

We agree with the trial court that the “common-sense approach” taken by the Supreme

Court in Robinson applies to the valuation evidence at issue in the present case. Although

dissimilar to the items of merchandise shoplifted in Robinson in that they did not have tags

affixed to them by the retailer displaying their prices, the stolen items of merchandise recovered

from Twine and his accomplice in this case did have individual bar codes on them that, when

scanned at a cash register at the store from which they were stolen, revealed their purchase

prices. Indeed, the scan of the shoplifted items produced a receipt, which summarized the prices

charged by Food Lion for the merchandise that was stolen. It is common knowledge that many

grocery and other stores now regularly use the bar codes that appear on the packaging of most

consumer goods to identify the prices charged by the store for those goods at the time of

purchase. Under such a system, the price of an item is typically displayed on the shelf directly

above or below that item in the store rather than on the item itself. When a customer elects to

purchase the item, the bar code imprinted on or attached to the item is scanned at a cash register.

Reading the bar code and accessing the electronic data associated with that bar code, the register

rings up the product, displays its name and purchase price, and prints that information on a cash

the sum of their prices and prints that amount on the receipt.

Because, when scanned, they disclose to the cashier and the customer the current pricing

information for the items being purchased, the bar codes on products are, as the cashier from

Food Lion explained, “the price tags” for those items. The bar codes by themselves, however,

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are not readily decipherable by a judge or jury in a grand larceny prosecution. It is the receipt

generated by scanning the bar codes at a cash register that summarizes the purchase prices of the

items in a form that is comprehensible to the fact finder at trial. Plainly, such a receipt is no less

inherently trustworthy and reliable than the testimonial valuation summaries admitted into

evidence in Robinson.3 Indeed, in Robinson, the Supreme Court recognized that the amount

listed on a price tag affixed to an item by the retailer may not accurately reflect the price the

customer will pay for that item because, during a sale, a store may “compute[] the reduced price

at the cash register rather than marking the change on the price tag.” Id. at 10, 516 S.E.2d at 479

(emphasis added).

Accordingly, we hold that the price tag exception to the hearsay rule in shoplifting cases

recognized by the Supreme Court in Robinson permits the admission into evidence of a cash

substitution, testimony concerning the amounts shown on such [a receipt] when . . . there is no

objection to such testimony on best evidence grounds.” Id. “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.” Id.

Twine further argues that, even if Robinson were found to apply to the present case, the

cash register receipt may not be properly admitted into evidence under the circumstances of this

case because he “made an objection on best evidence grounds to testimony concerning the

amount on the price tags.” As Twine correctly points out, the exception to the hearsay rule

3
As previously mentioned, the only evidence presented in Robinson concerning the value
of the stolen coats came from two store employees. One employee testified “the value of the
coats totaled $499.97” and “he knew what the value was because ‘that’s what it is on the price
tags.’” The other employee testified the coats “were valued at $499.97 and that she knew the
value from the ‘tickets [that] were attached to the [coats].’” 258 Va. at 6, 516 S.E.2d at 476.
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recognized by the Supreme Court in Robinson permits “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 . . . there is no objection to such testimony on best

evidence grounds.” (Emphasis added.) Twine, however, misreads the Supreme Court’s holding

in Robinson and mischaracterizes his objection. The reference in Robinson to an “objection to

such testimony on best evidence grounds” plainly encompasses only properly sustainable best

evidence objections and speaks not to the admissibility of the written price tags themselves but to

the admissibility of testimonial evidence “concerning the amounts shown on such tags.” See

generally Bradshaw v. Commonwealth, 16 Va. App. 374, 379, 429 S.E.2d 881, 884 (1993) (“In

Virginia, the best evidence rule provides that ‘where the contents of a writing are desired to be

proved, the writing . . . itself must be produced or its absence sufficiently accounted for before

other evidence of its contents can be admitted.’” (quoting Randolph v. Commonwealth, 145 Va.

883, 889, 134 S.E. 544, 546 (1926))).

In this case, Twine objected on best evidence grounds solely to the admission of the

written cash register receipt, not, as he states on appeal, “to testimony concerning the amount on

the price tags.” Indeed, as Twine notes in his appellate brief, there was no testimony presented at

trial establishing the value of the stolen merchandise. Instead, the Commonwealth relied solely

on the written cash register receipt. Moreover, Twine’s best evidence objection to the receipt

was properly overruled by the trial court. Twine argued at trial that the seventy-five items of

stolen merchandise needed to be admitted into evidence to establish their value. However, the

stolen items had no pricing information on them except for their bar codes. The items

themselves, therefore, would have been meaningless to the fact finder at trial, without a printout

of the prices generated by scanning the bar codes on the products at a register. Thus, the register

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receipt, which listed the actual purchase price of each of the items shoplifted from Food Lion by

Twine and his accomplice, constituted the best evidence of the stolen merchandise’s retail value.

We hold, therefore, that the trial court did not abuse its discretion in admitting the cash

Robinson. Because the receipt was properly admitted and established that the value of the

merchandise stolen by Twine and his accomplice was $693.29 and because Twine offered no

evidence at trial to refute the prices of the stolen items listed on the receipt, we further hold the

evidence was sufficient to sustain Twine’s conviction for grand larceny.

III. CONCLUSION

For these reasons, we affirm the judgment of the trial court and Twine’s conviction.

Affirmed.

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Twine v. Commonwealth

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