State v. Cofer
| Decision Date | 20 July 2011 |
| Docket Number | No. 29,717.,29,717. |
| Citation | 261 P.3d 1115,150 N.M. 483,2011 -NMCA- 085 |
| Parties | STATE of New Mexico, Plaintiff–Appellee,v.Bryan COFER, Defendant–Appellant. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Gary K. King, Attorney General, Santa Fe, NM, Francine A. Chavez, Assistant Attorney General, Albuquerque, NM, for Appellee.Jacqueline L. Cooper, Acting Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} Defendant Bryan Cofer appeals his conviction for shoplifting merchandise worth over $500, a fourth-degree felony, in violation of NMSA 1978, Section 30–16–20(B)(3) (2006). On appeal, we address his arguments that (1) the district court abused its discretion in admitting improper hearsay evidence by allowing the State's only witness to testify to statements from a report that was not admitted into evidence, and (2) the State failed to present sufficient evidence that the market value of the merchandise was over $500. We reverse Defendant's conviction because the district court erred in allowing hearsay testimony about the price of the merchandise and because the report the witness relied on was not admitted into evidence under the hearsay exception of a record of regularly conducted activity. However, because there was sufficient evidence to support Defendant's conviction, retrial is not barred.
{2} On June 22, 2008, Defendant took a 32? Sanyo LCD HD television from Wal–Mart in Artesia, New Mexico. When an officer in Roswell, New Mexico, pulled Defendant over based on information provided by the police dispatcher, the officer noticed a 32? Sanyo television in plain view in the back seat of Defendant's vehicle. After the police officer read Defendant his Miranda rights, Defendant admitted that he shoplifted the television from Wal–Mart. The State charged Defendant with one count of shoplifting over $500, in violation of Section 30–16–20(B)(3).
{3} At a bench trial on April 28, 2009, Defendant stipulated to the facts that “[o]n June 22, 2008, he took a Sanyo 32? television from the Wal–Mart in Artesia ... without paying for it.” He did not stipulate to the value of the item taken. Kathryn Moeller, an assistant manager from the electronics department at the Artesia Wal–Mart, was the only witness for the State. She testified that she had researched the value of the television and that based on an intranet database, the in-store price for the television was $576 on the date of the crime.
{4} Defense counsel objected to Moeller's testimony, arguing that the price of the television was hearsay, that Moeller needed to lay a better foundation for the evidence, that the prosecution had violated its duty to disclose the report Moeller researched in violation of Rules 5–501 and 16–308 NMRA, and that Defendant's Sixth Amendment right to confrontation had been violated. The State responded that there is a pricing exception to the hearsay rule and that, therefore, Moeller's testimony about the price of the television was not hearsay. The district court asked the State to lay a foundation for Moeller's testimony and then allowed her to testify regarding the price of the television. The district court concluded that Moeller's testimony could establish that the report she researched qualified as a business record and that the State did not breach its duty to disclose the report because it had disclosed the witness months before the trial.
{5} Following Moeller's testimony, the district court found that the value of the television exceeded $500 and Defendant was convicted of shoplifting merchandise valued at more than $500, in violation of Section 30–16–20(B)(3), a fourth-degree felony. Defendant was sentenced to eighteen months on the shoplifting charge, with one year suspended; however, his sentence was enhanced by four years due to his status as a habitual offender.
{6} On appeal, Defendant raises two issues. He argues that the district court abused its discretion in allowing hearsay into evidence. He also contends that the State did not present sufficient evidence to support his conviction. We address each in turn.
{7} We review the district court's “admission of evidence for an abuse of discretion.”State v. Branch, 2010–NMSC–042, ¶ 9, 148 N.M. 601, 241 P.3d 602. There is an abuse of discretion “when the ruling is clearly against the logic and effect of the facts and circumstances of the case.” State v. Moreland, 2008–NMSC–031, ¶ 9, 144 N.M. 192, 185 P.3d 363 (internal quotation marks and citation omitted). If there are reasons that both support and detract from a court's decision, there is no abuse of discretion. Id.
{8} In this case, Moeller testified that she conducted research on Wal–Mart's electronic intranet database to determine the price of the television. There is no dispute that Moeller's testimony that the television set was priced at $576 on the date of the crime was being offered to establish that the television was worth over $500. On appeal, Defendant asserts that the district court erred in allowing Moeller to testify to the price of the television. Defendant contends that the statement of price was inadmissible hearsay evidence. Further, Defendant argues that Moeller's testimony should not have been admitted as an exception to the rule against hearsay for records of regularly conducted activity because the price report Moeller relied on was not introduced into evidence.
{9} “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 11–801(C) NMRA. Rule 11–802 NMRA prohibits the admission of hearsay evidence with certain exceptions. One of the exceptions to the hearsay rule is the admission of records of regularly conducted activity, also known as the business records exception. Rule 11–803(F) NMRA. We begin our analysis by first determining whether Moeller's statements of price based on her research of the Wal–Mart computer database constitutes hearsay and, if it does, whether her testimony based on documents not admitted into evidence constitutes an exception under Rule 11–803(F).
{10} We agree with Defendant that Moeller's testimony at trial that the price of the television was $576 was inadmissible hearsay. We do so for two reasons. First, we note that although it did not explicitly rule that Moeller's testimony was hearsay, the district court determined that Moeller could testify about the price of the television based on her research under the business records exception to the hearsay rule if the State laid an adequate foundation. The State apparently did so, and the district court allowed Moeller's testimony under the business record exception, ultimately ruling that the price of the television was $576 on the date it was stolen. On appeal, the State contends that the district court properly admitted her testimony under the records of regularly conducted activity exception. Because the State does not challenge Moeller's testimony as not being hearsay, we conclude that it has acquiesced in the district court's ruling that the admission of Moeller's testimony was proper only under the business record exception to the hearsay rule.
{11} Second, even if the State properly preserved its argument that there is a price exception to the hearsay rule, we nevertheless determine that Moeller's testimony in this case constituted inadmissible hearsay. At trial, the State argued—as it does on appeal—that this Court in City of Albuquerque v. Martinez, 93 N.M. 704, 604 P.2d 842 (Ct.App.1979), implicitly held that a written statement of price is not hearsay. Therefore, the State argues that all testimony about the price of a stolen item is admissible evidence notwithstanding that there is no corresponding documentation introduced into evidence at trial. We are not persuaded, and we conclude that the State's application of Martinez is distinguishable from the present case on its facts.
{12} In Martinez, a security manager testified to the value of a stolen coat based on a price tag that he picked up that had been attached to the coat. Martinez, 93 N.M. at 705, 604 P.2d at 843. The defendant argued that the State failed to prove the value of the merchandise he shoplifted. Id. at 705, 604 P.2d at 843. We disagreed and held that “in a shoplifting case [the security manager's testimony] that merchandise was displayed for regular sale at a marked price representing its retail price is sufficient circumstantial evidence of value, where totally uncontradicted, to support a conviction grounded upon the marked price as its value.” Id. Martinez adopted the holding in Norris v. State, 475 S.W.2d 553, 555–56 (Tenn.Crim.App.1971), in which the Tennessee appellate court concluded that the testimony of two security officers regarding the price of merchandise they observed on price tags attached to the merchandise displayed for sale was not hearsay.
{13} Martinez, Norris, and the line of cases allowing testimony concerning the value of a stolen item based on the information found on a price tag have generally found that such testimony is admissible because items displayed for sale over a period of time with a price tag upon it, indicating the item's regular sale price, is commonly known and capable of ready demonstration. See, e.g., Norris, 475 S.W.2d at 555–56; see also Robinson v. Commonwealth, 258 Va. 3, 516 S.E.2d 475, 478–79 (1999) (); People v. Drake, 131 Ill.App.3d 466, 86 Ill.Dec. 639, 475 N.E.2d 1018, 1021–22 (1985) (); DeBruce v. State, 461 So.2d...
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