State v. Leith

• Decision Date: 07 March 2019
• Docket Number: No. 2017-0425,2017-0425
• Citation: 172 N.H. 1,205 A.3d 171
• Parties: The STATE of New Hampshire v. Reilly O. LEITH
• Court: New Hampshire Supreme Court

172 N.H. 1

205 A.3d 171

The STATE of New Hampshire

v.Reilly O. LEITH

No. 2017-0425

Supreme Court of New Hampshire.

Argued: October 18, 2018

Opinion Issued: March 7, 2019

Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior assistant attorney general, on the memorandum of law and orally), for the State.

Bosen & Associates, PLLC, of Portsmouth (Albert Hansen on the brief and orally), for the defendant.

LYNN, C.J.

The defendant, Reilly O. Leith, appeals her conviction in the Superior Court (Wageling, J.) for theft by unauthorized taking. See RSA 637:3 (2016). She raises issues concerning the admissibility and sufficiency of the evidence presented by the State to establish that the value of the stolen property exceeded $ 1,000, and thus rendered the offense a class B felony. See RSA 637:11, II(a) (2016). We affirm.

I

The jury could have found the following facts. On September 21, 2013, a loss prevention officer apprehended the defendant outside a Kohl's store in Newington after observing what she identified as shoplifting through store security cameras. The officer retrieved 30 stolen items from the defendant's person, as well as a bag she was carrying, and contacted the police. Using an inventory form, the officer recorded the price of the stolen merchandise by matching each item with its corresponding price tag. The total tagged price of the items stolen by the defendant, as recorded by the loss prevention officer on the inventory form, was $ 1,174. The defendant was subsequently charged with felony-level theft. See RSA 637:3, :11, II(a).

During direct examination of the loss prevention officer at trial, the State sought to admit the inventory form completed by the officer immediately following the theft. The defendant objected on hearsay, relevance, best evidence, confrontation, and burden-shifting grounds. The trial court admitted the inventory form and overruled the defendant's objections, explaining that: (1) the jurors could give the form "the weight that they think it deserves"; (2) the form was admissible under the business records exception to the hearsay rule; (3) "the accuracy and authenticity and use of numbers aren't substantially in doubt"; (4) the defendant was able to effectively cross-examine the loss prevention officer; and (5) no burden shifting had occurred. The defendant did not call any witnesses.

At the close of evidence, the defendant moved to dismiss the felony indictment, arguing that "viewing all evidence in a light most favorable to the State, no rational trier of fact could conclude beyond a reasonable doubt that [the defendant] took merchandise in excess of $ 1,000." The State responded that it had introduced sufficient evidence to prove that the defendant had stolen over $ 1,000 worth of property, given the evidence of the "retail value" of the items, which, the State asserted, represented the "highest market value." The trial court denied the defendant's motion to dismiss, finding that there was sufficient evidence upon which a rational jury could find that the State had sustained its burden.

The defendant did not object to the court's proposed jury instructions on the definition of value. The court instructed the jury that:

Value means the market value or the price which the property will bring in a fair market at the time of the alleged theft, after reasonable efforts have been made to find the purchaser who will give the highest price for it. Value means the highest amount determined by any reasonable standard of property.

The jury convicted the defendant, and this appeal followed.

II

We turn first to the defendant's evidentiary challenges. We accord the trial court considerable deference in determining the admissibility of evidence, and we will not disturb its decision absent an unsustainable exercise of discretion. State v. Lynch, 169 N.H. 689, 701, 156 A.3d 1012 (2017). To demonstrate an unsustainable exercise of discretion, the defendant must show that the trial court's rulings were clearly untenable or unreasonable to the prejudice of her case. Id.

The defendant initially asserts that the loss prevention officer lacked the requisite personal knowledge to testify regarding the tagged prices of the stolen items. See N.H. R. Ev. 602. She argues that the officer's testimony was inadmissible because it was based on information gained from price tags affixed to the stolen items, which, the defendant contends, are themselves inadmissible hearsay. See N.H. R. Ev. 801, 802. A careful examination of the record reveals that the State did not offer its evidence of value through the loss prevention officer's testimony, but rather through its admission of the inventory form, the foundation of which was laid by the officer's testimony. Thus, in reviewing the trial court's admission of evidence regarding value, we focus our analysis on the defendant's assertion that the inventory form was inadmissible hearsay.

"Hearsay is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." State v. Hammell, 155 N.H. 47, 48, 917 A.2d 1267 (2007) (quotation omitted); see N.H. R. Ev. 801(c). As a general rule, hearsay is not admissible unless an exception to the hearsay rule applies. Hammell, 155 N.H. at 48, 917 A.2d 1267. The inventory form was presented by the State at trial to prove the prices listed on the tags affixed to the stolen items. Thus, because the inventory form constituted an out-of-court statement, offered to prove the truth of the matter asserted (the prices listed on the form), the form is hearsay. See N.H. R. Ev. 801(c). This conclusion does not end our analysis, however, as next we look to whether the inventory form falls within a recognized exception to the hearsay rule. The trial court determined that the form was admissible because it fell within the business records exception. See N.H. R. Ev. 803(6). We agree. Because the loss prevention officer's testimony established the inventory form as a business record, the trial court sustainably exercised its discretion in admitting the form.

For evidence to be admitted under the business records exception, Rule 803(6) requires that the record be "made at or near the time" of the event "by, or from information transmitted by, a person with knowledge." N.H. R. Ev. 803(6).¹ In addition, the rule mandates that the record be "kept in the course of a regularly conducted business activity," and that it be "the regular practice of that business activity" to make the record. Id. The requirements of Rule 803(6) must be established through "testimony of the custodian or other qualified witness," id., as such testimony "constitutes the proper foundation for admission of the proffered record," State v. Wall, 154 N.H. 237, 242, 910 A.2d 1253 (2006) (quotation omitted). Finally, the Rule requires that neither the form's "source of information" nor the circumstances surrounding its preparation indicate a "lack of trustworthiness." N.H. R. Ev. 803(6).

At trial, the loss prevention officer testified that she had created inventory forms "[h]undreds" of times, and described in detail the information to be included when filling out the form. She further testified that she created the form at issue after apprehending the defendant. This information provided the trial court with a basis to conclude that the form was created "at or near the time of" the theft by a "qualified witness." N.H. R. Ev. 803(6) ; see Wall, 154 N.H. at 244, 910 A.2d 1253 ("The ‘qualified witness’ required by Rule 803(6) need only be someone who understands the system of how the document was made."). In addition, the officer stated that inventory forms are completed whenever a loss is discovered, whether or not a shoplifter is apprehended and regardless of prosecution. She added that the completed forms are then stored in Kohl's "loss prevention management system," where they are accessed by the "corporate resource department" to track "non-recovered merchandise" and calculate revenue loss. This testimony supplied the foundation for the court to conclude that the inventory form was used "in the course of a regularly conducted business activity," and that "it was the regular practice of that business activity to make" the form. N.H. R. Ev. 803(6).

The loss prevention officer also testified that the tagged price of Kohl's merchandise is established by an agreement between Kohl's and its vendors. She stated that the merchandise is then tagged by the vendors, and arrives at the store with the price tags already affixed. She further testified that she completed the inventory form at issue by referring to the stolen items and their corresponding price tags. This testimony provided a basis for the court to conclude that the officer completed the form using information that was transmitted by Kohl's, one of the parties responsible for establishing the price of the merchandise, and therefore a "person with knowledge" of the items' price. Id.

Furthermore, there is nothing in the record to indicate that the source of the information in the inventory form, or its method of preparation, indicates a "lack of trustworthiness." Id. To the extent the defendant argues on appeal that price tags themselves are inadmissible hearsay, and thus the inventory form contains hearsay within hearsay, and is therefore inadmissible, we disagree. Hearsay within hearsay is inadmissible unless each part of the combined statements conforms with an exception to the hearsay rule. In re Brittany L., 144 N.H. 139, 144, 737 A.2d 670 (1999). Like the inventory form, the tagged prices of the items reflect out-of-court statements made by Kohl's and its vendors that were offered to prove the truth of the matter asserted, and thus are hearsay. See N.H. R. Ev. 801(c). Given the loss prevention officer's testimony at trial, however, the proper foundation was laid to establish the price tags as business records. See N.H. R. Ev. 8...