State v. Davis, 15335

CourtSupreme Court of South Dakota
Citation401 N.W.2d 721
Docket NumberNo. 15335,15335
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Randy DAVIS, Defendant and Appellant. . Considered on Briefs
Decision Date15 January 1987

Page 721

401 N.W.2d 721
STATE of South Dakota, Plaintiff and Appellee,
Randy DAVIS, Defendant and Appellant.
No. 15335.
Supreme Court of South Dakota.
Considered on Briefs Jan. 15, 1987.
Decided March 4, 1987.

Janine Kern, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Randy Davis, pro se.

WUEST, Chief Justice.

Defendant appeals pro se his conviction on a charge of grand theft of property exceeding $200.00 in value. SDCL 22-30A-1 and -17. We affirm.

Defendant, Randy Davis, was an employee of Fast, Inc., a railroad salvaging business in Lawrence County. After he sustained an injury in early June, 1985, defendant was only able to work sporadically salvaging railroad ties. Later that month, defendant did not report to work one day because of his injury. Defendant learned, however, that his employment had been terminated by a co-owner of the company, Jon Trembath. The defendant went to the salvaging area the next day in order to speak with Trembath, but Trembath had left town for several days. The defendant stayed at the salvaging area even though he was no longer employed there.

Midge Montgomery (Montgomery), an area resident, contacted Fast, Inc. to obtain railroad ties for a landscaping project. They told her she could obtain railroad ties at the Fast, Inc. job site near Rochford. Montgomery met the defendant when she arrived at the job site. Montgomery assumed the defendant was a company employee, and she ordered her railroad ties from him. Defendant stated that when he delivered the ties to Montgomery she should write a check payable to Randy Davis.

On the day scheduled for delivery, Montgomery sent two men who were working on her landscaping project to pick up the ties. After Montgomery's workmen and a friend of defendant's had finished loading the ties, defendant received Montgomery's check for $160.00, which he cashed later that day.

A few weeks later, Montgomery telephoned Fast, Inc. to purchase more railroad ties. Brenda Trembath, a secretary for Fast, Inc., was unable to locate any record of an earlier sale. When asked about the first delivery that she had received, Montgomery told Trembath she had purchased forty ties and had made payment to Randy Davis. Trembath immediately went to inspect the ties. Although the ties had been used to construct a retaining wall, Trembath determined that the ties were the best quality softwood ties that normally sold for between six and eight dollars.

The first issue is whether there was sufficient evidence for the jury to find that the railroad ties defendant sold to Montgomery were valued at $200.00 or more. This court has held that determining the value of allegedly stolen property is within the province of the jury. State v. Jacquith, 272 N.W.2d 90, 92 (1978). The test for determining the value of the property in question is the "fair market value" test. The test provides that the value which must be established is the fair market value at the time and place of the theft. Jacquith, supra; State v. Quinn, 286 N.W.2d 320 (1979).

In determining the sufficiency of the evidence on appeal in a criminal case the issue before this court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. "[I]n making such a determination this Court will accept that evidence and the most reasonable inferences that can be fairly drawn therefrom, which will support the verdict." State v. Dale, 379 N.W.2d 811, 814 (S.D.1985); State v. Faehnrich, 359 N.W.2d 895

Page 723

(S.D.1984); State v. McCafferty, 356 N.W.2d 159 (S.D.1984); State v. Phinney, 348 N.W.2d 466 (S.D.1984); State v. West, 344 N.W.2d 502 (S.D.1984); State v. Jorgensen, 333 N.W.2d 725 (S.D.1983). We will uphold the jury's verdict if the evidence and the reasonable inferences drawn therefrom sustain a rational theory of guilt. Faehrich, supra; McCafferty, supra.

At trial Brenda Trembath testified that her husband first began salvaging railroad ties in May of 1981. On many occasions she had graded ties to determine their value. Trembath testified that she examined the stolen ties that were built into the retaining wall at the Montgomery residence. She determined that they were number one softwood ties valued at a minimum of $6.00 to $7.00 apiece and that they were of such good quality that she believed the ties to be $8.00 handpicked ties. Moreover, Trembath stated that she was able to determine the quality and composition of the ties notwithstanding their being used to make the retaining wall. Defendant himself presented the jury with evidence that the ties were worth six dollars each. On cross-examination he admitted that the fellow employee who loaded the ties told him Montgomery was given "number one soft" ties.

Even if Trembath cannot be considered an expert in the valuation of railroad ties, opinion testimony of the owner of stolen goods, not otherwise an expert, is admissible to establish the value of said stolen goods. United States v. McGinnis, 783 F.2d 755 (8th Cir.1986). In McGinnis, the Eighth Circuit held that the testimony of an owner of goods, not otherwise an expert, was admissible to establish that the goods had a value sufficient to make the offense punishable under the elements required by statute (18 U.S.C. 2315). The Court further held that such testimony was sufficient without more to support the jury's determination of value. Based on the value placed on the ties by Trembath, whose credibility was a question for the jury, the jury could certainly determine the probable fair market value of the ties taken by defendant.

Defendant contends that evidence establishing the number of ties taken was inadmissible hearsay. The defendant argues therefore that there was not sufficient evidence to establish that the total value of the property stolen exceeded $200.00.

At trial, Montgomery testified about her purchase of railroad ties from defendant but she could not remember the exact number of ties she ordered or the exact price she paid. She did testify, however, that when she later phoned Fast, Inc. to purchase additional ties, she told Trembath the number of ties she had previously ordered. In order to surmount the problem of Montgomery's memory lapse, the State called Trembath to testify about the telephone conversation with Montgomery. Trembath testified that Montgomery told her she had previously purchased forty railroad ties from defendant. The defendant raised a hearsay objection which the trial court overruled.

Although, Trembath's testimony concerning Montgomery's statement was hearsay, the trial court overruled defendant's objection without ruling on its admissibility under any of the hearsay exceptions. The State does not dispute the hearsay character of this evidence, but argues that its introduction was harmless error because other evidence in the record indicated there were forty ties.

The defendant argues that this hearsay testimony was inadmissible under the residual hearsay exception of SDCL 19-16-35. SDCL 19-16-35 provides:

A statement not specifically covered by any of Secs. 19-16-30 to 19-16-34, inclusive, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by Sec. 19-16-4 if the declarant is unavailable as a witness and if the court determines that

(1) the statement is offered as evidence of a material fact;

(2) the statement is more probative on the point for which it is offered than any other evidence which the proponent

Page 724

can procure through reasonable efforts; and

(3) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

However, a statement may not be admitted under this section unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Defendant concedes that Montgomery was unavailable as a witness due to a lack of memory. SDCL 19-16-29(3). Defendant also concedes the statement was offered as evidence of a material fact. However, defendant alleges that this hearsay testimony was inadmissible under SDCL 19-16-35 because the court did not rule on the reliability of the statements on the record, outside the presence of the jury and because the State did not give defense counsel notice of its intention to use this testimony. Defendant argues that introduction of the evidence was prejudicial error because the other evidence was insufficient to support the guilty verdict. Moreover, allowing the testimony violated the statutory requirements of the residual hearsay exception as well as the confrontation clause of our state constitution and the Sixth and Fourteenth Amendments to the United States Constitution.

When a hearsay declarant is not present for cross-examination at trial, the confrontation clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears "adequate indicia of reliability." Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception. Otherwise, the confrontation clause requires evidence to be excluded, unless there is a showing of particularized guarantees of trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980).

Besides Trembath's testimony about Montgomery's statement, there was other evidence at trial that defendant took forty ties. This other evidence corroborated the hearsay testimony and supplied it with necessary circumstantial guarantees of trustworthiness. Defendant was asked on cross-examination what price he had quoted Montgomery for the sale of the ties. He replied "$4.00 apiece." Montgomery's check to Davis...

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