Stephans v. State

• Decision Date: 06 October 2011
• Docket Number: No. 52254.,52254.
• Citation: 262 P.3d 727,127 Nev. Adv. Op. 65
• Parties: Stuard T. STEPHANS, a/k/a Stuard Stephans, Appellant,v.The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

262 P.3d 727

127 Nev. Adv. Op. 65

Stuard T. STEPHANS, a/k/a Stuard Stephans, Appellant,

v.The STATE of Nevada, Respondent.

No. 52254.

Supreme Court of Nevada.

Oct. 6, 2011.

Bailus Cook & Kelesis, Ltd., and Dayvid J. Figler, Las Vegas, for Appellant.Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Sandra DiGiacomo, Chief Deputy District Attorney, and Nancy A. Becker, Deputy District Attorney, Clark County, for Respondent.Before HARDESTY, DOUGLAS and PICKERING, JJ.

OPINION

By the Court, PICKERING, J.:

To establish grand larceny in this felony shoplifting case, the State needed to prove that the stolen goods had a value of $250 or more. Here, the only proof of value came from the department store's loss prevention officer. He testified, over the defense's foundation, hearsay, and best evidence objections, that the stolen goods he recovered bore price tags adding up to $477. Neither the price tags nor duplicates of them were offered or admitted.

The defense objections to this testimony should have been sustained. While there are several ways to establish value in a shoplifting case, testimony from a witness whose knowledge rests on what he remembers reading on a price tag is not, without more, one of them. For this reason, we reverse and remand for a new trial on the grand larceny charge. We affirm the judgment of conviction as to conspiracy and burglary.

I.

Appellant Stuard Stephans and a companion (who pleaded guilty before trial) stole six bottles of men's cologne from Abercrombie & Fitch, a retail department store in the Las Vegas Fashion Show Mall. The store's loss prevention field agent, David Scott, apprehended the duo, recovered the stolen cologne, and called the police.

At trial, the State relied on Scott to prove both theft and value. Scott prefaced his testimony with a perfunctory explanation of his duties. He described himself as responsible for loss prevention in Abercrombie & Fitch's 12 Las Vegas stores; he gave his background as being in criminal justice, generally, and investigation of retail crime by professional thieves, in particular. By the time of trial, Scott had changed employers and no longer worked for Abercrombie & Fitch.

Through Scott, the State established that Stephans and his companion each took three bottles of Ezra Fitch men's cologne, for a total of six bottles, without paying. Some of their activity was captured on security videotape, which Scott authenticated.

On value, Scott testified that he “believe[d]” Abercrombie & Fitch carried four brands of men's cologne, including a brand called Ezra Fitch. The State asked Scott: “And the Ezra Fitch [cologne], where would that have fallen on the scale of price?” Stephans objected to the lack of foundation, which the court sustained. Scott was then asked, “How would you know the price of the cologne in the store?” and “Are there price tags on it or how do you know how much the merchandise cost?” Scott's response was, “ The same as any customer would know ... there is a price tag on it.” (Emphasis added).

The defense added hearsay and best evidence objections to its foundation challenge to Scott's value testimony.¹ After an off-the-record colloquy, the court allowed the State to proceed:

Q. Sir, my question was with regard to the Ezra Fitch cologne ... where was it on the price range with regard to the four colognes that were sold at Abercrombie & Fitch?

A. It would have been at the top of the price range in regard to those colognes that we sell. That was our high end brand.

Q. What was the approximate price per bottle?

A. It was exactly 79.50 per bottle.

Q. That was, would have been the price tag that was on the box?

A. That's correct.

Multiplying price ($79.50) by number of bottles stolen (6) works out to $477, which is more than $250. Thus did the State establish value.

The jury convicted Stephans of grand larceny and burglary, both felonies, and conspiracy to commit larceny, a gross misdemeanor. The district court deemed Stephans a habitual criminal because of his record. The court sentenced Stephans for the felonies to 20 years in prison, with minimum parole eligibility at 7 years, the sentences to run concurrently.

II.

Stephans argues that the loss prevention officer's value testimony should have been excluded because it lacked foundation, involved hearsay, and violated the best evidence rule. He further argues that, without this evidence, his grand larceny conviction cannot stand. He seeks acquittal of grand larceny based on insufficiency of the evidence. While we agree with Stephans's assignments of evidentiary error, the remedy for such error is reversal and remand for a new trial on the grand larceny charge, not appellate acquittal.

A.

Grand larceny consists of intentionally stealing property, owned by another person, having a value of $250 (now $650) or more. NRS 205.220(1)(a).² “Value” in larceny cases is statutorily defined. Drawing on section 223.1(2)(c) of the Model Penal Code, NRS 205.251(1) provides: “The value of property involved in a larceny offense shall be deemed to be the highest value attributable to the property by any reasonable standard.” While the provision's purpose “is to put the transaction in a higher rather than a lower category where any one of several possible criteria of value justifies the higher classification,” Model Penal Code and Commentaries § 223.1 cmt. 3(b), at 141 (Official Draft and Revised Comments 1980), the burden remains with the State to prove value as an element of the crime. Thus, the State must “prove by evidence beyond a reasonable doubt that the value of the property, by any reasonable standard, exceeds [the statutory threshold amount],” here, $250. State v. Ensz, 503 N.W.2d 236, 238 (N.D.1993) (construing comparable North Dakota statute).

We generally review a district court's decision to admit or exclude evidence for an abuse of discretion, Hernandez v. State, 124 Nev. 639, 646, 188 P.3d 1126, 1131 (2008), but to the extent the evidentiary ruling rests on a legal interpretation of the evidence code, de novo review obtains. See United States v. LeShore, 543 F.3d 935, 941 (7th Cir.2008).

In Calbert v. State, 99 Nev. 759, 670 P.2d 576 (1983), we deemed “evidence of price tags attached to the goods at the time of the theft ... competent evidence of the value of the stolen goods for purposes of establishing grand larceny ... from a retail department store.” Id. at 759–60, 670 P.2d 576. But in Calbert, the price tags were admitted in evidence, apparently without objection. The challenge was to the sufficiency of the price tag evidence, not its admissibility.

In this case, by contrast, the only evidence of value came from Scott, a former loss prevention officer for Abercrombie & Fitch, who testified over objection to what he remembered reading on the stolen goods' price tags. Scott was neither offered nor qualified as an expert under NRS 50.275. Nor did the State establish that Scott had the personal knowledge required to give lay opinion testimony under NRS 50.265, or offer the price tags themselves in evidence.

An owner of property may testify to its value, Lucini–Parish Ins. v. Buck, 108 Nev. 617, 621–22, 836 P.2d 627, 630 (1992), at least so long as the owner has personal knowledge, or the ability to provide expert proof, of value. See Cunningham v. Masterwear Corp., 569 F.3d 673, 676 (7th Cir.2009) (“[w]hat the owner is not allowed to do is merely repeat another person's valuation”). However, “[n]on-owners who are called to testify to property value must have some personal knowledge on which to base their estimate.... [R]eading from the price tag on an item is not sufficient.” 3 Barbara E. Bergman & Nancy Hollander, Wharton's Criminal Evidence § 12:27, at 397–400 (15th ed. 1999) (emphasis added). Thus, absent foundation, “[m]ost courts have held that the testimony of a security officer is incompetent to prove the value of stolen goods when it is based on the officer's recollection of the prices written on the price tags, because the security officer has no knowledge of the pricing system.” Eldridge v. United States, 492 A.2d 879, 882 (D.C.1985); see DeBruce v. State, 461 So.2d 889, 891 (Ala.Crim.App.1984) (“Store security officers are not qualified to testify as to the value of stolen merchandise where their knowledge is based solely on the price ticket”); State v. Love, 147 Ariz. 567, 711 P.2d 1240, 1242 (App.1985) (the testimony of a security employee who “had no involvement in merchandising, selling, or pricing items at the store” held inadmissible to prove value); State v. White, 37 Conn.Supp. 796, 437 A.2d 145, 149 (1981) ( “a witness who testifies as to value must be qualified to do so on the basis of his own personal knowledge or experience; he may not merely transmit information which he receives from outside sources in the field”).

Courts that prohibit lay witness opinion testimony as to value based on a remembered price tag do so because they deem the price stated on the tag to be hearsay. A lay witness can testify to matters of fact, such as “the light was red.” But a lay witness cannot give opinion testimony based on otherwise inadmissible hearsay. See 30 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 6337, at 155 (2d ed. 1997) (discussing FRE 701, the federal counterpart to NRS 50.265, and noting the requirement that lay opinion be “rationally based on the perception of the witness,” FRE 701, “restricts the use of [lay] opinions [to those] based on personal knowledge and forbids those based on hearsay”).

NRS 51.035 defines hearsay as an out-of-court “statement offered in evidence to prove the truth of the matter asserted.” Courts elsewhere have divided on whether price tags amount to hearsay when offered to prove value. Some courts have accepted price tag evidence as a matter of “fact,” like an item's color or shape, or as circumstantial evidence, not a direct assertion,...