Brown v. Com., Record No. 1034-08-2.

Docket NºRecord No. 1034-08-2.
Citation54 Va. App. 107, 676 S.E.2d 326
Case DateMay 12, 2009
CourtCourt of Appeals of Virginia
676 S.E.2d 326
54 Va. App. 107
Maurice Meade BROWN
v.
COMMONWEALTH of Virginia.
Record No. 1034-08-2.
Court of Appeals of Virginia, Richmond.
May 12, 2009.

[676 S.E.2d 327]

Michael T. Hemenway, Charlottesville, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: McCLANAHAN, PETTY and POWELL, JJ.

PETTY, Judge.


54 Va. App. 109

On June 11, 2007, Maurice Meade Brown was convicted of grand larceny in violation of Code § 18.2-95. On appeal Brown argues that the trial court erroneously allowed a witness to testify to events he viewed on a video surveillance tape without requiring admission of the tape itself in violation of the best evidence rule.1 In addition, Brown argues that the

54 Va. App. 110

evidence was insufficient to prove beyond a reasonable doubt that Brown committed grand larceny. For the following reasons, we disagree with Brown and affirm his conviction.

I. BACKGROUND

On appeal, we review the evidence in the "light most favorable" to the prevailing party below, the Commonwealth, Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003), and we grant to that party all fair inferences flowing therefrom. Coleman v. Commonwealth, 52 Va.App. 19, 21, 660 S.E.2d 687, 688 (2008).

On October 4, 2006, Brown entered a Giant Foods store in Albemarle County with three other individuals: two males and one female. After all four individuals walked in, they separated and two walked through the beer aisle and two walked through the produce aisle. The group met back at the frozen food section and the three men—including Brown—grabbed twelve bags of crab legs. The men walked in a row, one behind the other, toward the bathroom in the back of the store. They went into the men's bathroom with the bags of crab legs in hand. When they walked out of the bathroom, "they had nothing" in their hands. They walked through the pharmacy toward the front of the store, never stopping to pay for anything at the checkout register. Once they were outside, they ran toward their car. Their female companion was already at the car, and the three men "jumped in" and drove away.

The store florist, Connie Wallace, observed the entire sequence of events. She testified that she saw the group walk into the store, separate, and reassemble at the frozen food section and grab the crab legs. Wallace informed the store security guard of what she believed to be suspicious behavior and followed the group to keep an eye on them. She saw the men take the crab legs into the men's bathroom and come out

54 Va. App. 111

of the bathroom with nothing. She followed the group out of the store and saw them jump into their car. Before the car could drive out of sight, Wallace wrote down the license plate number and gave that information to the security guard. Wallace testified that, to her knowledge, the crab legs were never recovered.

676 S.E.2d 328

Greg Moubray, who was employed by Giant Foods Asset Protection Division, testified that Wallace told him about the suspicious group. Moubray personally observed the group of three men—including Brown—run out of the store and jump into a gray Ford Taurus, which sped away. The woman was already at the car.

Moubray went upstairs to observe the store's video surveillance system that "record[s] things that are happening ... at the time they are happening." Brown objected to Moubray testifying about what he saw on the video recording on two bases: hearsay and best evidence rule. The assistant Commonwealth's attorney replied that "[i]t's not hearsay—it's an image." Brown chose to rely on his argument that Moubray's testimony would violate the best evidence rule. The trial judge then stated that "the best evidence rule applies to writing [sic] and therefore," she overruled the objection.

Moubray testified that on the security video, he saw the three men in the frozen seafood department taking bags of crab legs. There was no one else in the frozen seafood department at the time the three men took the bags of crab legs. Because the store has a video camera directly pointed at the crab legs and shrimp,2 Moubray was able to count a total of twelve bags of crab legs between the three men. After the group took the bags, Moubray saw them walk into the bathroom corridor at which time he could no longer see their actions on the video. Then, Moubray saw an empty cart and all the crab legs were gone. The bags of crab legs were not found in the bathroom and, in fact, they were never recovered.

54 Va. App. 112

Moubray testified that on October 4, 2006, each bag of crab legs cost thirty-nine dollars and ninety-nine cents. However, if a customer had a Giant card, then a bag of crab legs cost twenty-nine dollars and ninety-nine cents. Thus, the total value of the bags of crab legs was at least three hundred and fifty-nine dollars and eighty-eight cents.

Based on this evidence, Brown was convicted of grand larceny and sentenced to ten years imprisonment with eight years and two months suspended. From this judgment, Brown appeals.

II. ANALYSIS

Brown claims the trial court erred by (1) admitting the testimony of Greg Moubray regarding what he observed on the surveillance video because that testimony violated the best evidence rule, and (2) finding the evidence sufficient to convict him of grand larceny in violation of Code § 18.2-95.3

A. The Admissibility of Evidence

Ordinarily, we review questions regarding admissibility of evidence for an abuse of discretion, Michels v. Commonwealth, 47 Va.App. 461, 465, 624 S.E.2d 675, 678 (2006), and "[o]nly when reasonable jurists could not differ can we say an abuse of discretion has occurred," Tynes v. Commonwealth, 49 Va.App. 17, 21, 635 S.E.2d 688, 689 (2006) (citation and internal quotation marks omitted). However, "when the trial court makes an error of law" in the admission of evidence, "an abuse of discretion occurs." Bass v. Commonwealth, 31 Va.App. 373, 382, 523 S.E.2d 534, 539 (2000). "Furthermore, such

54 Va. App. 113

evidentiary issues presenting a `question of law' are `reviewed de novo by this Court.'" Abney v. Commonwealth, 51 Va.App. 337, 345, 657 S.E.2d 796, 800 (2008) (quoting Michels, 47 Va.App. at 465, 624 S.E.2d at 678).

Brown contends that the trial court erred in allowing Moubray to testify as to what he observed from the surveillance video recording because his testimony violated the best evidence rule. Brown, without citing any authority, argues that the best evidence rule

676 S.E.2d 329

"controls the proof of the contents of writings, recordings and photographs." (Emphasis added). We disagree with Brown's characterization of the rule because we conclude that in Virginia, the best evidence rule applies only to writings. Butts v. Commonwealth, 145 Va. 800, 816, 133 S.E. 764, 769 (1926); Randolph v. Commonwealth, 145 Va. 883, 889, 134 S.E. 544, 546 (1926); Folson v. Commonwealth, 23 Va.App. 521, 478 S.E.2d 316 (1996); Bradshaw v. Commonwealth, 16 Va.App. 374, 379, 429 S.E.2d 881, 884 (1993); Myrick v. Commonwealth, 13 Va.App. 333, 339, 412 S.E.2d 176, 179 (1991). See also Charles E. Friend, The Law of Evidence in Virginia § 16.1 (6th ed.2003).

Unlike many states that have codified or otherwise formally adopted rules of evidence, Virginia adheres to the common law rules of evidence. See Code § 1-200 (adopting the common law of England to the extent that it is not repugnant to our Bill of Rights and Constitution and except as altered by the General Assembly); Hall v. Commonwealth, 233 Va. 369, 374, 355 S.E.2d 591, 595 (1987) (stating that "we adhere" to the common law rules of evidence); Coal Riv. Coll. v. Eureka Coal Co., 144 Va. 263, 279, 132 S.E. 337, 342 (1926) (stating that "cases not covered by the [UCC statute governing parol evidence], expressly or by fair implication, are to be governed by the common law rules of evidence"); Anthony v. Commonwealth, 142 Va. 577, 583, 128 S.E. 633, 634 (1925) (recognizing the "legislature's authority to ... change the common law rules of evidence"); Slaughter v. Smither, 97 Va. 202, 208, 33 S.E. 544, 546 (1899) (stating that "[t]he common law rule[s] of evidence ... may be traced to a remote antiquity

54 Va. App. 114

and [are] of the utmost importance"); N. & W.R.R. Co. v. Prindle and Wife, 82 Va. 122, 127 (1886) (applying the common law rules of evidence and commenting that those rules were "not altered by our law"). Therefore, in considering the scope of what has become known as the best evidence rule, we must consider its historical development.

The best evidence rule began as a broad, short, and convenient phrase that described a conglomerate of auxiliary probative rules "applicable to specific classes of evidential material, and designed to strengthen ... the evidential fabric and to secure it against dangers and weaknesses pointed out by experience." 4 John Henry Wigmore, Wigmore on Evidence §§ 1171 & 1174 (James H. Chadbourn rev.1972) (emphasis in original). The phrase did not create these rules "by deduction from the principle implied in the phrase; but the phrase came to be used as descriptive of the rules already existing." Id. § 1174. Lord Hardwicke, sitting as chancellor, said that "[t]he judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will allow." Omychund v. Barker, 26 Eng. Rep. 15, 1 ATK 22, 49 (1744). Even post American Revolution, we can trace opinions describing the rule as "[t]he best evidence which the nature of the case admits of, ought to be produced, and if it may be produced, inferior testimony is inadmissible." Lee v. Tapscott, 2 Va. (2 Wash.) 276, 280-81 (1796). Thus, the rule was merely a "general observation that when one sets out to prove something, one ought to prove it by the most reliable evidence available." Friend, supra, § 16-1.

The phrase "best evidence" initially included the original document...

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22 practice notes
  • Turner v. Commonwealth Of Va., Record No. 1836-07-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • June 29, 2010
    ...each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.” Id. (citation omitted). Brown v. Commonwealth, 54 Va.App. 107, 119, 676 S.E.2d 326, 332 (2009). Turner's acts, conduct, and statements may be considered to discern his state of mind. Long v. Commonwealth,......
  • ROBINSON v. Commonwealth of Va., Record No. 0465-09-2
    • United States
    • Virginia Court of Appeals of Virginia
    • April 5, 2011
    ...each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion." Id. (citation omitted).Brown v. Commonwealth, 54 Va. App. 107, 119, 676 S.E.2d 326, 332 (2009).Page 7 This Court employs a deferential standard of review "not only to the historical facts themselves, but ......
  • Dalton v. Commonwealth, Record No. 2385–13–3.
    • United States
    • Virginia Court of Appeals of Virginia
    • March 31, 2015
    ...it is well-established in modern practice that “the best evidence rule in Virginia applies only to writings....” Brown v. Commonwealth, 54 Va.App. 107, 116, 676 S.E.2d 326, 330 (2009). “As a legal term of art, ‘the best evidence rule requires that where the contents of a writing are desired......
  • Jennings v. Commonwealth, Record No. 0063–15–1.
    • United States
    • Virginia Court of Appeals of Virginia
    • December 22, 2015
    ...laid it down that there is but one general rule of evidence, the best that the nature of the case will allow.’ " Brown v. Commonwealth, 54 Va.App. 107, 114, 676 S.E.2d 326, 329 (2009) (quoting Omychund v. Barker, 26 Eng. Rep. 15, 1 ATK 22, 49 (1744)).The "best evidence rule," which made its......
  • Request a trial to view additional results
22 cases
  • Turner v. Commonwealth Of Va., Record No. 1836-07-1.
    • United States
    • Virginia Court of Appeals of Virginia
    • June 29, 2010
    ...each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.” Id. (citation omitted). Brown v. Commonwealth, 54 Va.App. 107, 119, 676 S.E.2d 326, 332 (2009). Turner's acts, conduct, and statements may be considered to discern his state of mind. Long v. Commonwealth,......
  • ROBINSON v. Commonwealth of Va., Record No. 0465-09-2
    • United States
    • Virginia Court of Appeals of Virginia
    • April 5, 2011
    ...each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion." Id. (citation omitted).Brown v. Commonwealth, 54 Va. App. 107, 119, 676 S.E.2d 326, 332 (2009).Page 7 This Court employs a deferential standard of review "not only to the historical facts themselves, but ......
  • Dalton v. Commonwealth, Record No. 2385–13–3.
    • United States
    • Virginia Court of Appeals of Virginia
    • March 31, 2015
    ...it is well-established in modern practice that “the best evidence rule in Virginia applies only to writings....” Brown v. Commonwealth, 54 Va.App. 107, 116, 676 S.E.2d 326, 330 (2009). “As a legal term of art, ‘the best evidence rule requires that where the contents of a writing are desired......
  • Jennings v. Commonwealth, Record No. 0063–15–1.
    • United States
    • Virginia Court of Appeals of Virginia
    • December 22, 2015
    ...laid it down that there is but one general rule of evidence, the best that the nature of the case will allow.’ " Brown v. Commonwealth, 54 Va.App. 107, 114, 676 S.E.2d 326, 329 (2009) (quoting Omychund v. Barker, 26 Eng. Rep. 15, 1 ATK 22, 49 (1744)).The "best evidence rule," which made its......
  • Request a trial to view additional results

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