State v. Savage

• Decision Date: 20 February 1980
• Docket Number: No. 62672,62672
• Parties: STATE of Iowa, Appellee, v. Kenneth B. SAVAGE, Appellant.
• Court: Iowa Supreme Court

Page 502

288 N.W.2d 502

STATE of Iowa, Appellee, v. Kenneth B. SAVAGE, Appellant.

No. 62672.

Supreme Court of Iowa.

Feb. 20, 1980.

David F. McCann, Council Bluffs, for appellant.

Thomas J. Miller, Atty. Gen., Richard L. Cleland, Asst. Atty. Gen., David E. Richter, Pottawattamie County Atty., and Patrick M. Carr, Asst. Pottawattamie County Atty., for appellee.

Considered en banc.

LARSON, Justice.

This defendant has appealed from a conviction of second-degree theft, in violation of section 714.2(2), The Code. He raises issues as to the sufficiency of the proof of valuation necessary to establish the grade of the offense and as to the propriety of certain instructions. We affirm the trial court.

I. Valuation of the Stolen Items. Eight locomotive radiator cores were involved in this theft, and it is the sufficiency of the evidence as to their value which gives rise to the first issue. To constitute second-degree theft, the property involved must be valued at more than five hundred dollars and less than five thousand dollars. "Value" of the property is defined by section 714.3 to be "its normal market or exchange value within the community at the time that it is stolen." We interpret this language to be a restatement of our prior statute, section 709.2, The Code 1977, and the cases under it, E. g., State v. Boyken, 217 N.W.2d 218 (Iowa 1974), as they pertain to determination of value in a larceny case. Value under our prior law was interpreted to be market value, and in the absence of a regular market, its actual value. Id. at 220.

The defendant contends that the State failed to produce any admissible evidence that the value of the property exceeded five hundred dollars. The evidence on value consisted solely of testimony by the storekeeper for the Chicago & North Western Transportation Company, which owned the radiator cores. His duties included "purchasing, storing, issuing and controlling anything to do with company material." Radiator cores for locomotives, both new and used, were included in the property controlled by him. On direct examination he testified that the stolen cores included one new one and seven rebuilt ones. The value of the new core was $370.00, according to him, and this was not disputed. The disagreement on value determination arose only as to whether the seven rebuilt cores were shown to be worth a total exceeding $130.00, so as to raise the total amount of the theft to over $500.00. The storekeeper testified that the cost of rebuilding the cores, which were still in the boxes from the repair service when they were stolen, had been $118.00 each. Then, in response to the question whether it is possible to "go into the market place and buy a rebuilt core without having your own to send in and have rebuilt," he testified that "I don't know whether you can, but the railroad does not do that. . . ." He later testified that he had a "personal opinion of their value, and, over objection, stated the value of a rebuilt core would be approximately $25.00 less than a new one. Later, upon cross examination, he testified to a lack of knowledge as to "what they would bring on the established market. " Defendant moved to strike his testimony on the basis that the witness admittedly did not know the market value of the used cores and therefore testified only as to "speculation and conjecture. " The motion to strike was overruled.

On appeal he contends it was error to permit the storekeeper to testify to the actual value of the rebuilt cores based upon their cost of rebuilding because market value is the proper measure. Actual value, he contends, may be resorted to only upon a showing of the absence of market value for the items. We agree that this is a correct statement of the general principle of law, but do not agree that the evidence was inadmissible here.

Several general rules pertaining to opinion evidence should be recognized at the outset. Value testimony is liberally received, with its weight to be determined by the jury, McCormick, Opinion Evidence in Iowa, 19 Drake L.Rev. 245, 255 (1970), and rules as to competency of witnesses on questions of value are "always liberally construed." City National Bank v. Jordan, 139 Iowa 499, 504, 117 N.W. 758, 760 (1908). Accord, 3 J. Wigmore Evidence in Trials at Common Law § 716(2), at 54 (Chadbourne rev. ed. 1970) ("Here the general test, that Any one familiar with the values in question may testify, is liberally applied. . . . " (Emphasis in original.)). Even the term "market value" has been broadly defined. See, e. g., Maytag Company v. Partridge, 210 N.W.2d 584, 587 (Iowa 1973) ("Market value" or "fair and reasonable exchange" reflects transactions "both on organized markets and by occasional sales."). A broad approach to admissibility of opinion testimony by lay witnesses is also reflected by Federal Rule of Evidence 701, which requires only that it be "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." Principles concerning valuation opinions expressed in civil cases, several of which are referred to below, are applicable as well to criminal cases. See State v. Boyken, 217 N.W.2d 218, 220 (Iowa 1974).

Although defendant insists the testimony of this witness was erroneously addressed only to actual value of these items, we note that it was actually couched in terms of market value. The record shows this:

Mr. Carr (prosecuting attorney): You may answer. You stated you have an opinion. My question, now, is what is your opinion of the Fair market value of a rebuilt radiator core?

The Witness: Yes. Even though the rebuilt radiator core is somewhat the life of it is somewhat less than a new one, I would say it would run approximately $25 less than a new one would. (Emphasis added.)

Defendant contends the witness lacked sufficient knowledge of the market value to allow him to testify to it, based upon his own conservative view of his qualifications. The important issue, in any event, is not whether the storekeeper considered his knowledge to be sufficient, but whether the court did. The court obviously concluded the foundation was sufficient notwithstanding the witness' own modest view of his credentials. We cannot say the court abused its discretion. In any event, even if we assume the witness testified only as to actual value, it was properly received because of the close relationship of the witness to the property, tantamount to that of an owner, and because of the unique quality of the property itself, both factors obviating the need for a preliminary showing of the absence of market value.

The general rule is that an owner may testify as to actual value without a showing of general knowledge of market value. See Boyken, 217 N.W.2d at 220; Kohl v. Arp, 236 Iowa 31, 35, 17 N.W.2d 824, 826 (1945); Jordan, 139 Iowa at 505, 117 N.W. at 760 ("Ownership and possession of personalty afford some ground for the presumption of capacity to speak as to its value."); Wigmore, Supra, at 56.

The primary reason for admitting such an estimate of value is that of necessity, the owner necessarily knowing something about the quality, cost and condition of the article, and it often being impossible to produce other witnesses having the requisite knowledge upon which to base an opinion. But the rule of admissibility is more frequently predicated on the presumption that the owner, being familiar with his property, knows what it is worth.

31 Am.Jur.2d Expert and Opinion Evidence § 137, at 682-83 (1967) (emphasis added).

The appellant here seeks to restrict the application of the rule to actual owners, contending that the storekeeper here was not competent to testify to actual value despite the fact he was familiar with the property involved, the cost of new cores, and the comparable values of new and rebuilt ones. However, analysis of the reasons behind the rule shows that the presumed competency of an owner arises out of his peculiar knowledge of the "quality, cost and condition" of the property, rather than actual ownership. This is implicit in Appeal of Dubuque-Wisconsin Bridge, 237 Iowa 1314, 1320, 25 N.W.2d 327, 330 (1946), which held that the rule that an owner may express an opinion on actual value is not applicable to an officer of a corporation unless "he has knowledge of such values as qualifies him in fact."

The rationale of the rule also suggests that other persons having the requisite knowledge might also be presumed to be competent to establish value, even if not the owner. In Boyken, for example, a store manager was allowed to testify as to the value of stolen records, because his "lack of knowledge of the market value of such records between individuals on the street . . . would not render him incompetent to testify to the market value of These new records on the shelves from which they were stolen." 217 N.W.2d at 221 (emphasis added). In that case, we concluded that actual wholesale and retail prices of the stolen property, testified to by a person not the owner, were relevant on the matter of value.

Jeffries v. Snyder, 110 Iowa 359, 81 N.W. 678 (1900), involved a suit by the owner of goods against a warehouseman. The owner and another person who had had possession of and had used some of the household goods both testified as to their value. The extension of the "owner" rule to others having sufficient knowledge of value is apparent in this language:

One need not show any special qualification to enable him to express an opinion as to the value of articles in common domestic use, especially if he owns Or has used the same. The relaxation of the rule usually applied to opinion witnesses is required by necessity. Often no other evidence than that of the owner or Possessor can be procured.

110 Iowa at 362, 81 N.W. at 679 (emphasis added). See also Travelers Indemnity Company v. Plymouth Box & Panel Company, 99 F.2d 218, 223 (4th Cir. 193...