Josephine Turner Pilson v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
JOSEPHINE TURNER PILSON
MEMORANDUM OPINION * BY
v. Record No. 1051-99-3 JUDGE JEAN HARRISON CLEMENTS
DECEMBER 5, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Mark T. Williams (Williams, Morrison, Light
and Moreau, on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant Josephine Turner Pilson was convicted in a bench
trial of grand larceny in violation of Code § 18.2-95. On appeal
she contends the trial court erred in allowing, over her "best
evidence" rule objection, a store security officer to testify
regarding the value of stolen merchandise based on the officer's
prior examination of the price tags on each of the stolen items.
We disagree and affirm the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts necessary to a
disposition of this appeal.
Pilson argues that the best evidence rule bars the
admission of the security officer's valuation testimony.
Because the Commonwealth did not produce the price tags from the
stolen items as proof of the stolen merchandise's value, the
trial court should have excluded any secondary evidence
regarding valuation, appellant maintains.
We find that appellant's argument is without merit in that
it relies upon only a selective, fragmented reading of the best
evidence rule. It fails to take into account the rule's full
scope:
In Virginia, the best evidence rule
provides that "where the contents of a
writing are desired to be proved, the
writing [the primary evidence] itself must
be produced or its absence sufficiently
accounted for before other evidence of its
contents can be admitted." Thus, if the
purpose is to prove the truth of the
contents of a writing, the primary evidence
must be produced, if available. It is only
when sufficient evidence discloses that the
primary evidence is not available that
secondary evidence may be admitted for that
purpose. . . . Generally, the sufficiency
of the evidence relating to unavailability
of the writing is a preliminary question
addressed to the sound discretion of the
trial court.
Bradshaw v. Commonwealth, 16 Va. App. 374, 379, 429 S.E.2d 881,
884 (1993) (emphasis added) (alteration in original) (quoting
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Butts v. Commonwealth, 145 Va. 800, 816, 133 S.E. 764, 769
(1926) (internal quotations omitted)) (other citations omitted).
In this case, the Commonwealth failed to produce the price
tags of the stolen items at trial. However, Leslie Murphy, a
security officer for the store, testified that, after the stolen
items had been photographed (in accordance with Code
§ 19.2-270.1) and after she had examined the price tags affixed
to the items, the merchandise was resold. Murphy then
identified, over Pilson's objection, the price of each of the
stolen items based on her inspection of the price tags affixed
to the merchandise at the time of the theft. On
cross-examination, she testified, based again on her examination
of the price tags and on her visual check of the locations in
the store where each of the stolen items had been displayed for
sale, that none of the stolen merchandise was on sale when the
theft occurred.
It can be reasonably inferred from Murphy's testimony that
the same price tags that were affixed to the merchandise when it
was stolen by appellant were still attached when the merchandise
was returned to the sales floor of the store and resold. We
find, therefore, based on our review of the record in this case,
that the evidence supports a finding by the trial court that the
Commonwealth sufficiently accounted for the unavailability of
the price tags. Hence, we conclude that the trial court
properly allowed, in accordance with the best evidence rule, the
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admission of secondary evidence to prove the value of the stolen
merchandise.
Accordingly, we affirm appellant's conviction.
Affirmed.
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