Jerome Clay Calfee v. Commonwealth of Virginia ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges McCullough, Huff and Senior Judge Haley
UNPUBLISHED
Argued at Chesapeake, Virginia
JEROME CLAY CALFEE
MEMORANDUM OPINION* BY
v. Record No. 0625-13-1 JUDGE JAMES W. HALEY, JR.
MAY 13, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
John W. Brown, Judge
M. Colston Jones, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Jerome Clay Calfee, appellant, appeals his conviction for grand larceny in violation of Code
§ 18.2-95. On appeal, appellant contends the trial court erred by admitting into evidence the receipt
created by Walmart store employees to demonstrate the value of the items allegedly stolen. He also
argues the evidence was insufficient to establish he had the intent to deprive Walmart of all the
property contained in the shopping cart. We affirm the decision of the trial court.
Jacklyn Hyater worked as an asset protection associate at Walmart. At about 11:10 p.m.
on August 26, 2012, she saw appellant pushing a shopping cart containing merchandise. Hyater
testified that appellant drew her attention because his shopping cart contained “several different
kinds of laundry detergent, several different kinds of beer, [and] several different kinds of
tissue.” Hyater followed appellant throughout the store as appellant put additional items into the
cart. Hyater saw appellant remove a plastic Walmart bag from his pocket and place some of
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
items from the shopping cart into the bag. Hyater testified that, after he placed some of the
merchandise into the Walmart bag, appellant pushed the shopping cart throughout the store. He
passed a closed cash register, and he passed the last point of sale as he walked toward the exit of
the store.
Hyater approached appellant when he was in the vestibule area near the exit of the
building. She identified herself as an asset protection officer, and she asked appellant to
accompany her back into the store. Appellant followed Hyater. Hyater testified appellant acted
“a little jittery” when they arrived at the office door. He then fled without taking the
merchandise. Hyater pursued appellant, and appellant encountered a police officer near the door
of the store. The police officer saw Hyater was chasing appellant and he asked appellant to stop,
but appellant tried to run past him. The officer apprehended appellant by taking him “to the
ground.”
Hyater testified she took the shopping cart to a cash register and watched the customer
service representative “ring up” the merchandise from the cart by scanning the UPC codes on the
items. In response to a question from the trial court, Hyater agreed that the UPC is the
“methodology” used by Walmart to identify items and the price of each item.
Hyater obtained the receipt from the cash register, and she photographed the items in the
cart. The receipt showed the total value of the items in the shopping cart and in the Walmart bag
was $249.52. Hyater testified she did not personally know the price of each of the items in
appellant’s shopping cart.
At trial, appellant objected to the trial court’s admission of the cash register receipt into
evidence, arguing that a proper foundation for the admission of the receipt had not been
established because Hyater was not sufficiently familiar with the price of the items. The trial
court overruled appellant’s objection and admitted the receipt.
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At the end of the trial, appellant argued the evidence was insufficient to prove he had
formed the intent to permanently deprive Walmart of all of the merchandise. The trial court
found that appellant’s conduct of concealing some of the items in the plastic bag, walking into
the vestibule without paying for the items, and his attempted flight from the scene supported the
conclusion that appellant intended to steal the items and he committed grand larceny.
Appellant appealed his conviction to this Court.
Appellant argues the trial court erred by admitting the cash register receipt into evidence
because Hyater did not have sufficient familiarity with the prices of the merchandise and the
accuracy of the price information reflected on the receipt.
“The admissibility of evidence is within the broad discretion of the trial court, and a
ruling on appeal will not be disturbed in the absence of an abuse of discretion.” Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). The Supreme Court of Virginia
“recognized an exception to the hearsay rule in shoplifting cases permitting the admission into
evidence of price tags regularly affixed to items of personalty offered for sale or, in substitution,
testimony concerning the amounts shown on such tags when . . . there is no objection to such
testimony on best evidence grounds” in order to establish the value of the items. Robinson v.
Commonwealth, 258 Va. 3, 10, 516 S.E.2d 475, 479 (1999) (involving employee testimony
regarding value based on employees’ observations of amounts they observed on price tags
affixed to stolen items).
Appellant relies on Twine v. Commonwealth, 48 Va. App. 224, 629 S.E.2d 714 (2006),
in support of his argument. In Twine, the defendant was convicted of grand larceny for
shoplifting various items from a grocery store. Twine argued the trial court erred when it
admitted into evidence a receipt that was generated by scanning the bar codes of the various
items Twine was accused of stealing. Twine, 48 Va. App. at 226, 629 S.E.2d at 715. A cashier
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from the grocery store testified she observed the items scanned and the receipt generated by the
cash register. She testified “the name and price of the items listed on the cash register receipt
corresponded with her ‘recollection and understanding of what was rung up.’” Id. at 228, 629
S.E.2d at 716. She further stated that, although she could not recall the exact prices of the items
she saw 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.” Id.
Appellant argues the instant case is distinguishable from Twine because, here, Hyater
testified that she was not personally familiar with the actual prices of the items. Although the
cashier in Twine testified she was “familiar with the prices” of the items listed on the receipt and
the receipt appeared to have the correct prices, the Court’s decision in the case did not turn on
that testimony. Rather, this Court found, “[b]ecause, when scanned, they disclose to the cashier
and the customer the current pricing information for the items being purchased, the bar codes on
products are, . . . ‘the price tags’ for those items.” Id. at 234, 629 S.E.2d at 719. “It is the receipt
generated by scanning the bar codes at a cash register that summarizes the purchase prices of the
items in a form that is comprehensible to the fact finder at trial.” Id. at 233, 629 S.E.2d at 719.
“Plainly, such a receipt is no less inherently trustworthy and reliable than the testimonial
valuation summaries admitted into evidence in Robinson.” Id. (footnote omitted). Thus, the
Court held “the price tag exception to the hearsay rule in shoplifting cases recognized by the
Supreme Court in Robinson permits the admission into evidence of a cash register receipt
generated by scanning the bar codes on the stolen items of merchandise . . . .” Id. at 234, 629
S.E.2d at 719.
Furthermore, Hyater was present when the customer service manager scanned the bar
codes of the items in appellant’s cart and Hyater photographed the items in the cart. The trial
judge noted that the cash register receipt contained thirty-seven items, and he counted
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thirty-seven items depicted in the photographs. The trial judge also stated that he reviewed a
number of the items listed on the cash register receipt and “every item I looked at on the
Walmart cash register receipt was, in fact, pictured.”1 Accordingly, the trial court did not abuse
its discretion by admitting the cash register receipt into evidence.
Appellant also argues the evidence was insufficient to establish his “intent to deprive
Walmart of all of the property contained in the shopping cart, as opposed to the items concealed
within the Walmart shopping bag.”
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
The specific intent to commit [a crime] may be inferred from the
conduct of the accused if such intent flows naturally from the
conduct proven. Where the conduct of the accused under the
circumstances involved points with reasonable certainty to a
specific intent to commit [the crime], the intent element is
established.
Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 674 (1995) (citation omitted).
We ask only “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). In doing so, we are
mindful that “great deference must be given to the fact finder who, having seen and heard the
witnesses, assesses their credibility and weighs their testimony.” Walton v. Commonwealth, 255
Va. 422, 426, 497 S.E.2d 869, 871 (1988).
1
Moreover, as explained in Twine, “‘[w]hile such evidence, when admitted, would
suffice to make out a prima facie case of an item’s value, the accused would retain full
opportunity to cross-examine adverse witnesses and to present rebutting evidence on the issue of
value.’” Id. at 234, 629 S.E.2d at 719 (quoting Robinson, 258 Va. at 10, 516 S.E.2d at 479).
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The evidence showed that while appellant was inside the store, he placed numerous items
into a shopping cart and he concealed some of those items in a plastic Walmart bag he removed
from his pocket. Appellant continued to push the shopping cart containing all of the items, not
just the items he had concealed in the Walmart bag. He pushed the cart past a closed cash
register, past the other points of sale, and into the vestibule area located near the exit doors.
Appellant was in the vestibule area of the store when Hyater stopped him. He acted “jittery”
while he was in the presence of Hyater, and he attempted to flee from both Hyater and the police
officer. “Flight following the commission of a crime is evidence of guilt . . . .” Clagett v.
Commonwealth, 252 Va. 79, 93, 472 S.E.2d 263, 271 (1996).
From the evidence of appellant’s conduct throughout the incident, the trial court could
infer that appellant intended to steal all of the items in the shopping cart, not just the bagged
merchandise. Accordingly, the evidence was sufficient to prove beyond a reasonable doubt that
appellant committed grand larceny.
For the foregoing reasons, we affirm appellant’s conviction.
Affirmed.
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