Kern v. Com., 0097-84

• Decision Date: 18 March 1986
• Docket Number: No. 0097-84,0097-84
• Citation: 341 S.E.2d 397,2 Va.App. 84
• Parties: Gary William KERN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 397

341 S.E.2d 397

2 Va.App. 84

Gary William KERN v. COMMONWEALTH of Virginia.

Record No. 0097-84.

Court of Appeals of Virginia.

Argued Nov. 19, 1985.

Decided March 18, 1986.

John S. Lawrence, for appellant.

Russell C. Williams, Asst. Atty. Gen., William G. Broaddus, Atty. Gen., Richmond, for appellee.

Present: BENTON, DUFF and COLE, JJ.

DUFF, Judge.

Gary William Kern was convicted of grand larceny of four rings from the home of Mrs. Edna Gardner. The issues presented are whether the trial court erred in finding that Marcey Roe was qualified to give her opinion as to the value of a gemstone; whether there was sufficient evidence to find that the value of the rings was over $200; and whether Kern was denied his right of allocution. We find no merit in any of the issues presented and affirm the conviction.

Kern contends that because the Commonwealth's expert witness, Marcey Roe, had no formal training or education as an appraiser, she was not qualified to testify as an expert in jewelry appraisals and to express an opinion as to the value of the gemstones. The evidence showed that Roe, a member of the Accredited Appraisers Association, was employed by Fleischer's Jewelers as an appraiser and gemologist. She studied gemology in 1975 at the Columbia School of Gemology in Silver Spring, Maryland. Later she studied gemology in three correspondence courses given by the Gemological Institute of America and in 1985, was certified as a gemologist. Roe continued working in a jewelry store after becoming a gemologist but did not actually begin appraising until April, 1984. At the time of her valuation in this case, she had appraised approximately seventy-five to one hundred jewelry items, including both gemstones and gold jewelry. Regarding the difference between a gemologist and an appraiser, Roe testified that although there is no formal training to become an appraiser, to be an appraiser, one must also be a gemologist.

Roe appraised the rings in question and determined that the settings were eighteen karat gold and that the most valuable stone was a pyrogarnet. She testified, over objection, that the pyrogarnet had a market value of $800.

The standard of review on appeal where the admissibility of expert testimony is challenged is whether the trial court abused its discretion. Thorpe v. Commonwealth, 223 Va. 609, 614, 292 S.E.2d 323, 326 (1982). It is well established that no formal training or education is necessary to qualify as an expert. Expertise may be acquired through an avocation or a hobby. C. Friend, The Law of Evidence in Virginia § 215, at 461 (2d Ed.1983). Knowledge may be the product of home study or experience, or both. Noll v. Rahal, 219 Va 795, 801, 250 S.E.2d 741, 745 (1979). All that is necessary for a witness to qualify as an expert is that he have "sufficient knowledge of his subject to give value to his opinion", Norfolk & Western Railway Co. v. Anderson, 207 Va. 567, 571, 151 S.E.2d 628, 631 (1966), and that he be better qualified than the jury to form an inference from the facts. C. Friend, The Law of Evidence in Virginia, § 215, at 461 (2d Ed.1983).

We find, based on these principles, no abuse of the trial court's discretion in allowing Roe to testify as an expert in jewelry appraisals. Her education and training as a gemologist and her experience as an appraiser qualified her to valuate the gemstone. Any argument that she lacked experience in the field went to the weight that the trier of fact gave to her opinion, not to its admissibility.

Kern further argues that Roe's reliance on an unidentified brochure to assign a market value to the gemstone made her opinion inadmissible hearsay. Roe testified that after identifying the stone and determining its size and quality, she obtained a per-carat value from a brochure listing current market value according to quality. Roe stated that the brochure was one of several published in her profession, and that its use was standard appraisal practice.

While acknowledging that an expert may not base her valuation on hearsay opinion, the Commonwealth argues that the brochure contained facts, not opinions. Roe was not merely relaying information from the brochure to the court. To arrive at her valuation of the stone, she examined it and determined the number of carats and its quality. She then applied her firsthand knowledge of the stone to the market data in the brochure as to current per-carat value. Her opinion was formed in part by out-of-court data relied on by other experts in the field. However, no expert could be expected to have personal knowledge of all the data that interact to form a market price.

We recognize that in Virginia, an expert witness generally has not been permitted to base his opinion on facts not in evidence. Ortiz v. Barrett, 222 Va. 118, 130, 278 S.E.2d 833, 839 (1981...