State v. Downing
| Decision Date | 26 November 2002 |
| Docket Number | No. 22148.,22148. |
| Citation | 654 N.W.2d 793,2002 SD 148 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Larry DOWNING, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Mark Barnett, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
Bryan T. Andersen, Office of Public Defender, Rapid City, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] Larry Downing appeals his conviction for grand theft. We affirm.
[¶ 2.] On May 17, 2001, Downing was apprehended after leaving a Rapid City department store with a DVD player concealed in his shopping cart. He was later charged in an information with one count of grand theft of property with a value exceeding five hundred dollars. See SDCL 22-30A-1; 22-30A-17(1).1
[¶ 3.] Downing's jury trial was on October 2, 2001. During trial, the State presented three witnesses who gave testimony bearing on the value of the DVD player stolen by Downing. The first witness, the senior employee in the department store's electronics department, testified as follows:
* * *
[¶ 4.] On cross-examination, the senior employee conceded that his duties did not include ordering or inventory control or pricing items in the electronics department. Rather, he testified that prices were established by shelf labels and signs issued by the company, that he had no control over the price of items and that his knowledge of the price of the DVD player came from reading the labels and signs provided by the company. The employee further testified that, at the time of the theft, the DVD players were a recent arrival and that none had been sold before the theft.
[¶ 5.] The State next presented testimony from the department store's human resources manager. The human resources manager formerly worked as a loss prevention officer and as head of store security. On redirect examination, the human resources manager testified that, on the day of the theft, the DVD player stolen by Downing was selling for "approximately 525 to $529."
[¶ 6.] The third witness presented by the State was the store's loss prevention officer. On cross-examination, the loss prevention officer testified that, as of the date of Downing's theft, the store had received three DVD players of the type stolen by Downing and that none had been sold as of that date.
[¶ 7.] After presentation of all of its witnesses, the State rested and defense counsel indicated he had no witnesses to offer. Proceedings continued outside the presence of the jury. Defense counsel moved to strike the testimony on the price of the DVD player on the grounds that it was hearsay, that the best evidence rule required production of the signs on which the testimony was based and that price was not relevant evidence as to the value of the DVD player. The trial court denied the motion to strike and defense counsel moved for a judgment of acquittal on similar grounds. The acquittal motion was also denied on the basis that there was sufficient evidence to establish the value of the DVD player. The trial court then proceeded to settle jury instructions. Defense counsel proposed an instruction that price tags alone do not sufficiently prove the market value of merchandise and the trial court rejected the instruction.
[¶ 8.] After settlement of the jury instructions, the trial resumed in the presence of the jury with the reading of the instructions and closing arguments. The jury retired for deliberations and later returned a verdict finding Downing guilty of grand theft. Downing was sentenced to three years in the penitentiary and this appeal followed.
[¶ 9.] Did the trial court abuse its discretion in admitting the store employees' testimony as to the sale price of the DVD player?
[¶ 10.] Downing argues that the trial court abused its discretion in admitting the testimony of the senior employee in the electronics department to establish the sale price of the DVD player. Trial courts retain broad discretion in ruling on the admissibility of testimony and decisions to admit or exclude testimony will not be reversed absent a clear showing of abuse of discretion. See State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 414
. "When a trial court misapplies a rule of evidence, as opposed to merely allowing or refusing questionable evidence, it abuses its discretion." Id.
[¶ 11.] Downing contends that the trial court abused its discretion in admitting the senior employee's testimony because it was based upon price labels and signs provided by the company and the labels and signs themselves should have been admitted as the best evidence of price. In support of his argument, Downing cites the best evidence rule codified in SDCL 19-18-2 (FedREvid 1002): "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in chapters 19-9 to 19-18, inclusive, or by rules adopted by the Supreme Court of this state or by statute."
[¶ 12.] Downing's argument represents a common misunderstanding of the best evidence rule mentioned by this Court in State v. Lang, 354 N.W.2d 723, 725 (S.D.1984)
:
Appellants simply misconstrue the purpose and effect of the best evidence rule. The rule does not set up an order of preferred admissibility, which must be followed to prove any fact. It is, rather, a rule applicable only when one seeks to prove the contents of documents or recordings. FedREvid 1002. (quoting United States v. Gonzales-Benitez, 537 F.2d 1051, 1053 (9th Cir.1976)).
"The [best evidence] rule is inapplicable when content is not at issue." 6 Jack B. Weinstein et al., Weinstein's Federal Evidence § 1002.05[1] (2d ed 2002). Thus, in Jackson v. Crews, 873 F.2d 1105, 1110 (8th Cir.1989), the United States Court of Appeals for the Eighth Circuit held that the district court did not err in allowing a party to question one of his witnesses about the contents of a flyer without producing the flyer as the best evidence of its contents. As to that issue, the Court of Appeals observed that the best evidence rule Jackson, 873 F.2d at 1110 (citations omitted).
[¶ 13.] Here, the State was not trying to prove the contents of the department store's price labels and signs. The content of the labels and signs was not in dispute. Rather, the State was attempting to show how the testifying employee learned of the price of the DVD player. The best evidence rule was, therefore, inapplicable, and the trial court committed no abuse of discretion in overruling Downing's objections to the employee's testimony on that foundation.
[¶ 14.] Downing also argues that the trial court abused its discretion in admitting testimony as to the sale price of the DVD player because price is irrelevant in establishing value for purposes of a grand theft prosecution. In that vein, Downing points out that the testifying store employees admitted that no DVD players were actually sold by the time of the theft at the price indicated on the labels and signs.
[¶ 15.] With regard to value as an element in theft or larceny prosecutions, this Court has held that:
State v. Jacquith, 272 N.W.2d 90, 92 (S.D. 1978) (citations omitted).
[¶ 16.] In support of his argument over price as evidence of value, Downing relies on the Nebraska Supreme Court's decision in State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).2Garza involved the theft of several articles of clothing from a department store. To establish the value of the clothing in a prosecution for felony shoplifting, the state offered testimony from the department store's assistant manager based upon the price or sales tag for each item taken by the defendant. The defendant offered no evidence and was convicted of the felony offense. On appeal, the Nebraska court identified a distinction between price and value and held that price tags alone are insufficient to establish the value of property in a theft prosecution. The Nebraska court further held that testimony directed toward price tags on articles taken is irrelevant to the issue of value and should be excluded. Garza, 487 N.W.2d at 557. Garza has subsequently been interpreted by the Nebraska courts as...
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