Jennings v. Commonwealth, Record No. 0063–15–1.

• Decision Date: 22 December 2015
• Docket Number: Record No. 0063–15–1.
• Citation: 65 Va.App. 669,779 S.E.2d 864
• Parties: Marquis Durrell JENNINGS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

65 Va.App. 669
779 S.E.2d 864

Marquis Durrell JENNINGS
v.
COMMONWEALTH of Virginia.

Record No. 0063–15–1.

Court of Appeals of Virginia.

Dec. 22, 2015.

779 S.E.2d 865

Jennifer L. Titter, Assistant Public Defender, for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUFF, C.J., DECKER and ATLEE, JJ.

ATLEE, Judge.

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Marquis Durrell Jennings appeals two felony convictions: grand larceny and grand larceny with the intent to sell. First, he argues that the trial court erred when it overruled his best

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evidence objection to testimony about the value of the stolen goods. Second, he argues that the evidence was insufficient to support his convictions because "the testimony was based on an observation of a stack [of jeans] rather than a definite number and therefore value is at question." We find no merit in his second argument, but we agree with Jennings that the trial court should have sustained his best evidence objection. For that reason, we reverse and remand.

I. BACKGROUND

"On appeal, ‘we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’

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" Dalton v. Commonwealth, 64 Va.App. 512, 515, 769 S.E.2d 698, 700 (2015) (quoting Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc )). Viewed from this perspective, the record in this case shows that J.C. Penney ("the store") employed Rebecca Shunk ("Shunk") as a loss prevention officer. In December of 2013, Shunk saw Jennings enter the store and select a suitcase. The suitcase was on sale for $79.99. Shunk watched Jennings take the suitcase up the escalator to the "men's Levi's department." Once there, Jennings placed eight pairs of men's jeans into the suitcase. He then closed the suitcase and exited the store without paying for the suitcase or the jeans. Shunk confronted Jennings outside the store. She recovered the merchandise, but Jennings got away. Eventually, Jennings was apprehended and charged with grand larceny and larceny with the intent to sell.

At trial, Jennings objected to Shunk's testimony about the value of the jeans.¹ The Commonwealth initially questioned Shunk as follows:

Q Were you aware of the value of the jeans?

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A Yes.

Q How were you aware of that?

A I was very well-aware of the jeans because we have to ink-tag these jeans when I do my audit so I have to make sure there are ink tags on them. If not, I put them on myself, and they are placed very close to the price.

Q You read off the price tag what the value of the jeans were?

A Yes.

Jennings's attorney objected, and had the following exchange with the trial judge:

Q Your Honor, I object as far as best evidence goes. If they are going to testify to the value of the jeans, I think they need—

A Overruled.

Q—the ticket.

A She can testify she saw the price tag on them.

Following that ruling, the Commonwealth asked Shunk: "What is the value of the jeans?" She responded: "Forty each."²

The Commonwealth did not offer a price tag into evidence, nor did Shunk testify about any knowledge of the price of the jeans, other than what she read on the price tags. The judge found Jennings guilty of both grand larceny and grand larceny with the intent to sell, and sentenced him to a total of ten years in the penitentiary with nine years suspended.

I. ANALYSIS

A. BEST EVIDENCE

A trial court's decision to sustain or overrule a best evidence objection, like other decisions about the admissibility of evidence, is reviewed for abuse of discretion. Dalton, 64 Va.App. at 521, 769 S.E.2d at 703. The inquiry is not whether we, as an appellate court, would have ruled as the trial court

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did. Id. Rather, we find an abuse of discretion "[o]nly when reasonable jurists could not differ...." Thomas v. Commonwealth, 44 Va.App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh'g en banc, 45 Va.App. 811, 613 S.E.2d 870 (2005).

"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.’ " 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 appearance in the English law in the early part of the eighteenth century, was not originally a "rule," but rather "a general observation to the effect that when one sets out to prove something, one ought to prove it by the most reliable evidence available." Charles E. Friend, Kent Sinclair, The Law of Evidence in Virginia § 18–1 (7th ed.2012).

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Dalton, 64 Va.App. at 521–22, 769 S.E.2d at 703. Virginia's Rules of Evidence state the best evidence rule this way: "To prove the content of a writing, the original writing is required, except as otherwise provided in these Rules, other Rules of the Supreme Court of Virginia, or in a Virginia statute." Va. R. Evid. 2:1002. The first step in deciding if the best evidence rule applies is determining whether price tags are writings.

1. Are Price Tags Writings?

" ‘Writings' consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation or preservation." Va. R. Evid. 2:1001. In this instance, tags were affixed to the jeans, and Shunk "read off the price tag what the value of the jeans were."

The Commonwealth urges us to find that price tags are not writings at all, but rather are akin to inscriptions or engravings. This hybrid category of evidence, known in other jurisdictions as "inscribed chattels," comprises physical evidence

65 Va.App. 675

combined with writing in such a manner that the two cannot be separated. The Fifth Circuit Court of Appeals has explained: "When the disputed evidence ... is an object bearing a mark or inscription, and is, therefore, a chattel and a writing, the trial judge has discretion to treat the evidence as a chattel or as a writing." United States v. Duffy, 454 F.2d 809, 812 (5th Cir.1972) (white shirt with a laundry mark containing three letters). Since this case involves inscribed chattels, the Commonwealth argues, "this Court need not engage in a full best evidence analysis...." This argument is unpersuasive.³

Inscribed chattels are a class of property unknown either to Virginia common law, the Rules of Evidence, or the Code. Inscribed chattels constitute an inseparable (or nearly inseparable) combination of writing and physical object. Examples include serial numbers stamped into or written on objects (such as vehicles and appliances), identifying information engraved into weapons, and labels glued onto prescription bottles and beer bottles.⁴ In each such instance, it would be

65 Va.App. 676

impossible, or at least difficult, to present the "writing" to a factfinder without also presenting the medium to which such writing was affixed. Price tags are a wholly dissimilar class of writings.⁵ They can easily be attached to and detached from the items they label.⁶ A price tag can be held in the palm of

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the hand and offered into evidence, in contrast to the practical difficulties that would arise were one to employ the same procedure to admit the original identification number engraved upon a boat trailer, for instance. The jeans in this case were not "an object bearing a mark or inscription," Duffy, 454 F.2d at 812 ; rather, they were physical objects, with writings attached. Virginia's courts have never recognized inscribed chattels as a distinct class of evidence. Even if inscribed chattels were an evidentiary category recognized in Virginia, the chattels at issue here would not qualify. We find that the price tags were writings.

2. Must the Commonwealth Have Introduced the Price Tags?

Finding that the price tags were writings within the meaning of the best evidence rule, we must determine whether the

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best evidence rule barred Shunk's testimony about the contents of the price tags. The Commonwealth offers two reasons to support its position that Shunk's testimony did not violate the best evidence rule.

i. The Testimony was Not Offered to Prove the Contents of a Writing

First, the Commonwealth argues that "Shunk's testimony was admissible...