Weathers v. State, 5706

• Decision Date: 25 October 1982
• Docket Number: No. 5706,5706
• Citation: 652 P.2d 970
• Parties: Donald Frank WEATHERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 970

652 P.2d 970

Donald Frank WEATHERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5706.

Supreme Court of Wyoming.

Oct. 25, 1982.

Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Sr. Asst. Atty. Gen. and Thomas Campbell, Legal Intern, for appellee.

Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

RAPER, Justice.

Appellant was convicted of grand larceny in violation of § 6-7-301, W.S.1977 ¹ after a jury trial. He appeals from the judgment and sentence entered against him contending that the trial court erred in denying his motion for acquittal on the grounds that the State failed to produce competent evidence as to the element of value of the goods stolen.

We will affirm.

In the late afternoon of September 29, 1981, the home of Mr. and Mrs. Buell, located near Buffalo, Wyoming, was broken into. Numerous items of value were taken, including binoculars, camera equipment, jewelry, money, and rifles. Eight days later, during the early morning hours of October 7, 1981, appellant was arrested in Los Angeles, California for theft--siphoning gasoline. At the same time appellant was arrested, Mr. Tim Kaliszewski was arrested on the same charge as an accomplice. A subsequent investigation by police officers in Los Angeles revealed that several of the items that had been stolen from the Buell home had been in appellant's car at the time of his arrest. Also, statements made to those officers by both appellant and Mr. Kaliszewski indicated that they had committed burglaries in several states including Wyoming. Upon this information, both appellant and Kaliszewski were returned to Wyoming to face charges of grand larceny.

At appellant's trial, Mr. Kaliszewski testified for the State that both he and appellant had participated in the theft of property from the Buell home. Mr. Kaliszewski confirmed that he, appellant, and another man had stolen binoculars, camera equipment, jewelry, coins, and guns from the Buell home on September 29, 1981. He also testified that enroute to Los Angeles they sold the coins they had stolen for $37.50 and some of the guns for $125.00.

Also during appellant's trial, Mrs. Buell testified for the State concerning the events of September 29, 1981. She described the condition she found her home in after the break-in and she further described what had been stolen from her home. During Mrs. Buell's testimony, the State produced a list of items prepared by her that detailed the items stolen from her home and the value she attached to each item. The list, Exhibit 22, was made from a list submitted on an insurance claim filed by Mrs. Buell after the break-in. Exhibit 22, with its value estimates included, was admitted into evidence over the objection of appellant's counsel. The objection was that the State had failed to lay a proper foundation for Mrs. Buell's estimate of value. In addition to the estimate of value in Exhibit 22, Mrs. Buell testified, over appellant's objection, to the value she placed on the stolen property. Mrs. Buell, in both her testimony and in Exhibit 22, placed a value of $4,244 on the items stolen from her home. ²

During her testimony, Mrs. Buell admitted that many of the stolen items had been gifts and that she had no idea what they had originally cost. On cross-examination, Mrs. Buell testified that she had never been in the business of buying and selling furniture or jewelry, but that she had at one time been in the business of buying and selling guns.

Appellant argues that the State failed to lay any more foundation for Mrs. Buell's testimony concerning value than that she was the owner of the stolen property, and that alone was insufficient to render her opinion of value competent. He, therefore, argues that his motion for acquittal should have been granted because the State failed to produce competent evidence as to the value of the stolen items--one of the elements of the crime of grand larceny.

Since the issue we must address concerns the denial of a motion for acquittal, it is appropriate that we set out our standard of review. In Edge v. State, Wyo., 647 P.2d 557 (1982), we quoted approvingly from Leppek v. State, Wyo., 636 P.2d 1117, 1119 (1981):

" 'In reviewing the denial of a motion for judgment of acquittal, we examine and accept as true the evidence of the prosecution together with all logical and reasonable inferences to be drawn therefrom, [citations] leaving out entirely the evidence of the defendant in conflict therewith [citations].

" 'A motion for judgment of acquittal is to be granted only when the evidence is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime. Or, stated another way, if there is substantial evidence to sustain a conviction of the crime, the motion should not be granted. [Citations.] This standard applies whether the supporting evidence is direct or circumstantial. [Citations.]' "

Further, since at the heart of appellant's claim is the issue of whether the trial court properly admitted Mrs. Buell's opinion of value over appellant's objection, we shall set out the manner in which we review questions of that nature. In Taylor v. State, Wyo., 642 P.2d 1294, 1295 (1982) we announced:

"It has been held generally that the admission of evidence is within the sound discretion of the trial court and absent a clear abuse of discretion will not be disturbed. It is also the general rule that the foundation, relevance, competency, materiality, and remoteness are within the sound discretion of the trial court and will be upheld on appeal absent a clear abuse of discretion." (Footnotes omitted.)

Our task, then, is to determine whether the trial court properly acted within its discretion in allowing Mrs. Buell to put forth an opinion as to the value of the items stolen from her home. Once we have resolved that question, we can apply the standard set out above to determine whether the trial court's denial of appellant's motion for acquittal was proper.

We begin, then, by deciding whether Mrs. Buell's opinion as to the value of her stolen property was properly admitted. The general rule in the United States is that owners of chattels are qualified by reason of that relationship alone to give an estimate as to their value. Annot., 37 A.L.R.2d 967, 974 (1954). For a brief statement of the background behind that general rule, we set out a portion of the annotation which states:

"It is universally acknowledged that opinion testimony of qualified witnesses is admissible to prove the value of personal property of all kinds when such testimony is necessary for a fair determination of its value, the only real controversy involving the question of the competency or qualification of the witness by whom such testimony is offered. 20 Am.Jur., Evidence § 894.

"Similarly, the right of the owner of a chattel to testify as to its value, although he may not possess sufficient knowledge or skill to testify as an expert on the subject, is generally recognized, the theory of such recognition being that he has such familiarity with his property that he may generally be presumed to know what it is worth and making it nonessential, as a condition precedent to the admission of his testimony, to prove that he knew the value or to require him to state the elements entering into its value to him as a necessary qualification for giving his opinion. 20 Am.Jur., Evidence § 894.

"Professor Wigmore, in what is one of the most frequently quoted and cited texts on the subject, says in his Evidence, 3d ed § 716: 'The owner of an article, whether he is generally familiar with such values or not ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury; and C...