Twine v. Com., Record No. 1306-05-1.

• Decision Date: 16 May 2006
• Docket Number: Record No. 1306-05-1.
• Parties: Kevin Eugene TWINE v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

629 S.E.2d 714

48 Va. App. 224

Kevin Eugene TWINE v. COMMONWEALTH of Virginia.

Record No. 1306-05-1.

Court of Appeals of Virginia, Chesapeake.

May 16, 2006.

Joel W. Young (Phillips & Bartlett, P.C., Williamsburg, on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: FELTON, C.J.,^* and FRANK and CLEMENTS, JJ.

JEAN HARRISON CLEMENTS, Judge.

Kevin Eugene Twine was convicted in a bench trial of grand larceny, in violation of Code § 18.2-95. The conviction arose from the shoplifting of numerous razors, over-the-counter medications, and other merchandise from a Food Lion store. On appeal, Twine contends the trial court erred in admitting into evidence, over his hearsay objection, a cash register receipt generated by scanning the bar codes on the shoplifted items to establish the value of the stolen merchandise. Twine further contends that, absent the improperly admitted register receipt, the evidence was insufficient to sustain his conviction for grand larceny. Finding no error, we affirm the judgment of the trial court and Twine's conviction.

I. BACKGROUND

"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va.App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence established that, on the evening of July 29, 2004, Twine and his accomplice Demetrius Gray, were observed acting suspiciously in a Food Lion store. The acting store manager called the police after he saw Twine placing merchandise in his pants. Twine, the manager observed, had merchandise "all the way down [each] leg" of his pants and was unable to "walk that well" as a result. Twine and Gray then left the store without paying for the merchandise and went to their car.

Responding to the shoplifting call, Sheriff's Deputy James Hazelwood arrived at the Food Lion store as Twine and Gray were about to leave the parking lot. The acting store manager pointed them out to the deputy, and he pulled their car over a few blocks away. Sheriff's Deputy Reginald Simms arrived at the scene of the stop soon thereafter.

When Deputy Hazelwood approached the car and asked Gray, the driver, if he had taken anything from the Food Lion, Gray responded, "You got me, man. You got me." He and Twine then "started pulling stuff out of [their] pants," placing it on the front seat between them. Both men had stolen merchandise inside their "bulky" pants, including "down in the leg[s] of the pants." Gray informed the police that the items in his pants were from the Food Lion. After collecting the stolen items from the front seat and placing them in a plastic bag, Deputy Simms took the items "back to Food Lion to verify that they came from Food Lion and to get a total price."

At the Food Lion, Deputy Simms emptied the bag of stolen items "onto the belt" of a cash register. The store's "manager for the front end registers" then scanned and rung up the stolen merchandise at the cash register, and a cash register receipt was produced showing the name and price of each item and the total combined price of the merchandise. The receipt was given to Deputy Simms, who "turned it into [the Department's property storage unit] with Deputy Hazelwood."

At trial, Deputy Hazelwood testified that he brought the cash register receipt given to him by Deputy Simms to court that day. Asked to examine the receipt, which was marked for identification purposes as Commonwealth's Exhibit 1, Deputy Simms identified it as the cash register receipt from the Food Lion store generated by scanning and ringing up the shoplifted merchandise Twine and Gray had removed from their pants.

Ann Vance testified that she was on duty as a cashier at the Food Lion "[w]hen [Deputy Simms] brought the [stolen] items back" into the store. Vance further testified that she was standing right next to the register where the retrieved merchandise was scanned and that she observed each item as it was being scanned and rung up at the register. According to Vance, the stolen items did not have individual price tags on them. Instead, they had bar codes on them that were used to scan and ring up the items at the register. "The bar codes," Vance testified, "are the price tags."

Asked at trial to examine Commonwealth's Exhibit 1, Vance testified that the date and time imprinted on the receipt corresponded with the date and time she saw the stolen merchandise being scanned and rung up. Vance further testified that, although she could not independently recall and name each item she saw being rung up, the name and price of the items listed on the cash register receipt corresponded with her "recollection and understanding of what was rung up." Asked to mark each item listed on the receipt that she saw being scanned and rung up on the register, Vance testified that she saw every item on the receipt being scanned and rung up. She then checked each item listed on the receipt. She also testified that, while she was unable to independently recall and recite the exact prices of the items she saw being scanned, she was "familiar with the prices" of the stolen items and each item listed on the receipt appeared to have the right price listed next to it.

Over Twine's hearsay and best evidence objections, the trial court admitted the cash register receipt into evidence to establish the value of the stolen merchandise. The receipt listed each scanned item's description and the item's price. The receipt showed that the stolen merchandise consisted of seventy-five items — twenty razors, five packs of razor-blade cartridges, eighteen Tylenol products, thirteen Advil products, one Aleve product, eight Claritin products, four Pepcid products, two Prilosec products, three various ointments, and one facial cleanser — individually priced between $3.19 and $12.59. The receipt indicated that the total pre-tax price of the seventy-five items of stolen merchandise was $693.29. Twine offered no evidence at trial to refute the prices of the stolen items listed on the receipt.

At the conclusion of the Commonwealth's case-in-chief and again at the conclusion of all the evidence, Twine implicitly renewed his hearsay objection to the admission into evidence of the cash register receipt, and moved to strike the evidence, arguing that, sans the improperly admitted receipt, the evidence was insufficient to prove the stolen merchandise was valued at $200 or more. The trial court denied the motions to strike and found Twine guilty as charged.

This appeal followed.

II. ANALYSIS

On appeal, Twine contends "the trial court misapplied the `price tag' exception" to the hearsay rule in this case because "no price tags were introduced and there was no testimony concerning the amounts shown on the price tags." Thus, he concludes, the trial court erred in applying the price tag exception and allowing the Commonwealth to introduce the cash register receipt into evidence to establish the value of the stolen merchandise, over his hearsay objection.¹ Twine further contends that, without the inadmissible register receipt, the evidence failed to show that the value of the shoplifted merchandise was at least $200 and was thus insufficient to establish anything more than petit larceny. We hold that the register receipt was properly admitted into evidence and the evidence was thus sufficient to sustain Twine's conviction for grand larceny.

To convict a shoplifter of grand larceny, the Commonwealth must prove beyond a reasonable doubt that the value of the stolen merchandise was $200 or more. See Code § 18.2-95(ii); Parker v. Commonwealth, 254 Va. 118, 120-21, 489 S.E.2d 482, 483 (1997) ("While evidence that an article has some value is sufficient to sustain a conviction for petit larceny, when the value of the stolen item determines the grade of the offense, the Commonwealth must prove the value to be at least the statutory amount."). The relevant value is the stolen merchandise's retail value at the time of the shoplifting. See Robinson v. Commonwealth, 258 Va. 3, 5, 516 S.E.2d 475, 476 (1999) ("The test is market value, and particularly retail value."); Parker, 254 Va. at 121, 489 S.E.2d at 483 ("The value of the stolen property is measured as of the time of the theft, and the original purchase price may be admitted as evidence of its current value.").

Here, the Commonwealth offered the cash register receipt generated by scanning the bar codes on the shoplifted items recovered from Twine and his accomplice to prove the aggregate value of the stolen merchandise was $200 or more. A Food Lion cashier testified that she observed each of the stolen items listed on the receipt being scanned and rung up at the Food Lion register. Relying on the price tag exception to the hearsay rule established in Robinson, 258 Va. at 10, 516 S.E.2d at 479, the trial court admitted the receipt into evidence over Twine's hearsay exception.²

It is well established that "[t]he admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988). However, "a trial court `by definition abuses its discretion when it makes an error of law.'" Shooltz v. Shooltz, 27 Va.App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996)). "In determining whether the trial court made an error of law, `we review the trial court's . . . legal conclusions de novo.'" Rollins v. Commonwealth, 37 Va.App. 73, 79, 554 S.E.2d 99, 102 (2001) (quoting Timbers v. Commonwealth, 28 Va.App. 187, 193, 503 S.E.2d 233, 236 (1998)).

In Robinson, our Supreme Court recognized an exception to the...