25 M.J. 611 | U.S. Army Court of Military Review | 1987
OPINION OF THE COURT
Appellant was found guilty of two larceny specifications: larceny of a motorcycle and larceny of a car stereo equalizer and two Bose speakers of a value of $150.00. A military judge sitting as a special court-martial sentenced appellant to a bad-conduct discharge, confinement for three months, forfeiture of $300.00 pay per month for three months and reduction to Private E-l. The convening authority approved the sentence.
Concerning the larceny of the stereo equalizer and speakers, appellant alleges that the military judge erred in finding him guilty of larceny of property of a value of $150.00. We find the evidence sufficient to prove value in the amount of $124.95.
The only evidence of the value consisted of the items themselves, and the hearsay testimony of an Exchange detective who stated that the stereo department manager had told him their value was $124.95.
Paragraph 46 c(l)(g)(iii), Part IV, Manual for Courts-Martial, United States, 1984, provides, in part,
When the character of the property clearly appears in evidence — for instance, when it is exhibited to the court-martial — the court-martial, from its own experience, may infer that it has some value. If as a matter of common knowledge the property is obviously of a value substantially in excess of $100.00, the court-martial may find a value of more than a $100.00.
Viewing the prosecution exhibits, we cannot conclude that as a matter of common knowledge the property in question, two Bose speakers and an equalizer, "is obviously of a value substantially in excess of $100.00.”
We must determine if other evidence of record, in addition to the items, is sufficient to prove value. The remaining evidence concerning value is the investigator’s statement that the manager told him that the items were of a value of $124.95.
Prior to the adoption of Military Rules of Evidence 802
Only so much of the findings of guilty of Specification 2 of the Charge are affirmed as find appellant guilty of larceny of property of a value of $124.95. The remaining findings of guilty and the sentence are affirmed.
. Mil.R.Evid. 802 provides that, "[hjearsay is not admissible except as provided by these rules or by any Act of Congress applicable in trials by court-martial.”
. Mil.R.Evid. 103(a) provides, in part, "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless the ruling materially prejudices a substantial right of a party, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record....” We also note that Mil.R.Evid. 103(d) provides "[njothing in this rule precludes taking notice of plain errors that materially prejudice substantial rights although they were not brought to the attention of the military judge.”
. This decision should not be construed to hold that hearsay evidence admitted without objection has per se sufficient probative value to establish the value of property. We are concerned with trial counsel’s failure to present other evidence of value. Had defense counsel objected to the hearsay statement, it would not have been admissible. In this respect, we view this case as poorly tried.