779 S.E.2d 864
Va. Ct. App.2015Background
- In Dec. 2013, loss-prevention officer Rebecca Shunk watched Jennings place eight pairs of men’s jeans into a suitcase and leave J.C. Penney without paying; she later recovered the merchandise. Jennings was charged with grand larceny and grand larceny with intent to sell.
- At trial Shunk testified the suitcase was $79.99 (from a nearby sign) and the jeans were "$40 each," based on reading the price tags.
- Defense counsel objected under the best evidence rule when the Commonwealth elicited Shunk’s testimony about the price tags; the trial court overruled the objection and the Commonwealth did not admit the tags or explain their absence.
- The trial court convicted Jennings of both felonies and sentenced him to ten years with nine years suspended.
- On appeal, the Court of Appeals reviewed (1) whether price-tag testimony violated the best evidence rule and (2) whether the evidence of number/value of jeans was sufficient. The court considered prior Virginia precedent distinguishing when testimony about writings is admissible.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Jennings) | Held |
|---|---|---|---|
| Whether testimony about price-tag amounts violated the best evidence rule | Testimony was admissible because value exists independently of tags; testimony about tags is allowed under Robinson absent best-evidence objection | Testimony repeated contents of writings (price tags); under best evidence rule originals (tags) must be produced or unexplained absence shown | Court held price tags are writings and admission of Shunk’s recitation without the tags violated the best evidence rule; overruling of objection was error |
| Whether price tags are "inscribed chattels" exempting them from best evidence rule | Price tags combined with goods are like inscribed chattels; trial judge may treat them as chattel evidence instead of writings | Price tags are detachable writings and thus subject to the best evidence rule; inscribed-chattel concept inapplicable here | Court held price tags are writings (detachable) and not inscribed chattels for this purpose; best evidence rule applies |
| Whether any Rule 2:1004 exception (unavailability, etc.) justified nonproduction of tags | Trial court could infer tags were unavailable (e.g., sold) so other evidence admissible under exceptions | Commonwealth made no showing or explanation for absence of originals; no record finding of unavailability | Court found no indication the trial court made an availability inference; Rule 2:1004 exceptions not shown; error stands |
| Whether the evidence was otherwise sufficient (number of jeans and value element) | Testimony established eight jeans and value via tags | Jennings argued number based on counting a stack was uncertain, so value questionable | Court found testimony that eight jeans were taken was sufficient as to number; but because value element relied solely on improperly admitted tag testimony, convictions could not stand and reversal/remand required |
Key Cases Cited
- Dalton v. Commonwealth, 64 Va. App. 512 (Va. Ct. App. 2015) (standard of review for evidentiary rulings)
- Williams v. Commonwealth, 49 Va. App. 439 (Va. Ct. App. 2007) (appellate review framing)
- Robinson v. Commonwealth, 258 Va. 3 (Va. 1999) (price-tag/receipt hearsay exception in shoplifting cases, limited by best-evidence caveat)
- Foster v. Commonwealth, 44 Va. App. 574 (Va. Ct. App. 2004) (value of goods is an essential element of grand larceny)