STATE V. COFER, 2011-NMCA-085,
150 N.M. 483, 261 P.3d 1115
STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
BRYAN COFER, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2011-NMCA-085, 150 N.M. 483, 261 P.3d 1115
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY, Thomas A.
Rutledge, District Judge.
Certiorari Denied, July 20, 2011, No.
33,096. Released for Publicaation September 6, 2011.
Gary K. King, Attorney General, Santa Fe,
NM, Francine A. Chavez, Assistant Attorney General, Albuquerque, NM, for
Appellee.
Jacqueline L. Cooper, Acting Chief Public
Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for
Appellant.
LINDA M. VANZI, Judge. WE CONCUR: MICHAEL
D. BUSTAMANTE, Judge, TIMOTHY L. GARCIA, Judge.
{1} Defendant Bryan
Cofer appeals his conviction for shoplifting merchandise worth over $500, a
fourth-degree felony, in violation of NMSA 1978, Section
30-16-20(B)(3) (2006).
On appeal, we address his arguments that (1) the district court abused its
discretion in admitting improper hearsay evidence by allowing the State’s only
witness to testify to statements from a report that was not admitted into
evidence, and (2) the State failed to present sufficient evidence that the
market value of the merchandise was over $500. We reverse Defendant’s
conviction because the district court erred in allowing hearsay testimony about
the price of the merchandise and because the report the witness relied on was
not admitted into evidence under the hearsay exception of a record of regularly
conducted activity. However, because there was sufficient evidence to support
Defendant’s conviction, retrial is not barred.
{2} On June 22, 2008, Defendant
took a 32" Sanyo LCD HD television from Wal-Mart in Artesia, New Mexico.
When an officer in Roswell, New Mexico, pulled Defendant over based on
information provided by the police dispatcher, the officer noticed a 32"
Sanyo television in plain view in the back seat of Defendant’s vehicle. After
the police officer read Defendant his
Miranda rights, Defendant admitted
that he shoplifted the television from Wal-Mart. The State charged Defendant
with one count of shoplifting over $500, in violation of Section
30-16-20(B)(3).
{3} At a bench trial on
April 28, 2009, Defendant stipulated to the facts that “[o]n June 22, 2008, he
took a Sanyo 32" television from the Wal-Mart in Artesia . . . without
paying for it.” He did not stipulate to the value of the item taken. Kathryn
Moeller, an assistant manager from the electronics department at the Artesia
Wal-Mart, was the only witness for the State. She testified that she had
researched the value of the television and that based on an intranet database,
the in-store price for the television was $576 on the date of the crime.
{4} Defense counsel
objected to Moeller’s testimony, arguing that the price of the television was
hearsay, that Moeller needed to lay a better foundation for the evidence, that
the prosecution had violated its duty to disclose the report Moeller researched
in violation of Rules 5-501 and
16-308 NMRA, and that Defendant’s Sixth
Amendment right to confrontation had been violated. The State responded that
there is a pricing exception to the hearsay rule and that, therefore, Moeller’s
testimony about the price of the television was not hearsay. The district court
asked the State to lay a foundation for Moeller’s testimony and then allowed
her to testify regarding the price of the television. The district court
concluded that Moeller’s testimony could establish that the report she
researched qualified as a business record and that the State did not breach its
duty to disclose the report because it had disclosed the witness months before
the trial.
{5} Following Moeller’s
testimony, the district court found that the value of the television exceeded
$500 and Defendant was convicted of shoplifting merchandise valued at more than
$500, in violation of Section 30-16-20(B)(3), a fourth-degree felony. Defendant
was sentenced to eighteen months on the shoplifting charge, with one year
suspended; however, his sentence was enhanced by four years due to his status
as a habitual offender.
{6} On appeal,
Defendant raises two issues. He argues that the district court abused its
discretion in allowing hearsay into evidence. He also contends that the State
did not present sufficient evidence to support his conviction. We address each
in turn.
Hearsay Testimony and the
Business Records Exception
{7} We review the
district court’s “admission of evidence for an abuse of discretion.”
State
v. Branch,
2010-NMSC-042, ¶ 9,
148 N.M. 601,
241 P.3d 602. There is an
abuse of discretion “when the ruling is clearly against the logic and effect of
the facts and circumstances of the case.”
State v. Moreland,
2008-NMSC-031, ¶ 9,
144 N.M. 192,
185 P.3d 363 (internal quotation marks and
citation omitted). If there are reasons that both support and detract from a
court’s decision, there is no abuse of discretion.
Id.
{8} In this case,
Moeller testified that she conducted research on Wal-Mart’s electronic intranet
database to determine the price of the television. There is no dispute that
Moeller’s testimony that the television set was priced at $576 on the date of
the crime was being offered to establish that the television was worth over
$500. On appeal, Defendant asserts that the district court erred in allowing
Moeller to testify to the price of the television. Defendant contends that the
statement of price was inadmissible hearsay evidence. Further, Defendant argues
that Moeller’s testimony should not have been admitted as an exception to the
rule against hearsay for records of regularly conducted activity because the
price report Moeller relied on was not introduced into evidence.
{9} “‘Hearsay’ is a
statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.”
Rule
11-801(C) NMRA. Rule
11-802 NMRA prohibits the admission of hearsay
evidence with certain exceptions. One of the exceptions to the hearsay rule is
the admission of records of regularly conducted activity, also known as the
business records exception. Rule
11-803(F) NMRA. We begin our analysis by first
determining whether Moeller’s statements of price based on her research of the
Wal-Mart computer database constitutes hearsay and, if it does, whether her
testimony based on documents not admitted into evidence constitutes an
exception under Rule 11-803(F).
{10} We agree with
Defendant that Moeller’s testimony at trial that the price of the television
was $576 was inadmissible hearsay. We do so for two reasons. First, we note
that although it did not explicitly rule that Moeller’s testimony was hearsay,
the district court determined that Moeller could testify about the price of the
television based on her research under the business records exception to the
hearsay rule if the State laid an adequate foundation. The State apparently did
so, and the district court allowed Moeller’s testimony under the business
record exception, ultimately ruling that the price of the television was $576
on the date it was stolen. On appeal, the State contends that the district
court properly admitted her testimony under the records of regularly conducted
activity exception. Because the State does not challenge Moeller’s testimony as
not being hearsay, we conclude that it has acquiesced in the district court’s
ruling that the admission of Moeller’s testimony was proper only under the
business record exception to the hearsay rule.
{11} Second, even if the
State properly preserved its argument that there is a price exception to the
hearsay rule, we nevertheless determine that Moeller’s testimony in this case
constituted inadmissible hearsay. At trial, the State argued—as it does on
appeal—that this Court in
City of Albuquerque v. Martinez,
93 N.M. 704,
604 P.2d 842 (Ct. App. 1979), implicitly held that a written statement of price
is not hearsay. Therefore, the State argues that all testimony about the price
of a stolen item is admissible evidence notwithstanding that there is no
corresponding documentation introduced into evidence at trial. We are not
persuaded, and we conclude that the State’s application of
Martinez is
distinguishable from the present case on its facts.
{12} In
Martinez,
a security manager testified to the value of a stolen coat based on a price tag
that he picked up that had been attached to the coat.
Martinez, 93 N.M.
at 705, 604 P.2d at 843. The defendant argued that the State failed to prove
the value of the merchandise he shoplifted.
Id. at 705, 604 P.2d at 843.
We disagreed and held that “in a shoplifting case [the security manager’s
testimony] that merchandise was displayed for regular sale at a marked price
representing its retail price is sufficient circumstantial evidence of value,
where totally uncontradicted, to support a conviction grounded upon the marked
price as its value.”
Id. Martinez adopted the holding in
Norris
v. State, 475 S.W.2d 553, 555-56 (Tenn. Crim. App. 1971), in which the
Tennessee appellate court concluded that the testimony of two security officers
regarding the price of merchandise they observed on price tags attached to the
merchandise displayed for sale was not hearsay.
{13} Martinez,
Norris,
and the line of cases allowing testimony concerning the value of a stolen item
based on the information found on a price tag have generally found that such
testimony is admissible because items displayed for sale over a period of time
with a price tag upon it, indicating the item’s regular sale price, is commonly
known and capable of ready demonstration.
See, e.g.,
Norris, 475
S.W.2d at 555-56;
see also Robinson v. Commonwealth, 516 S.E.2d
475, 478-79 (Va. 1999) (stating that it is common knowledge that department
stores regularly affix price tags to merchandise and that is the price the
purchaser must pay without an opportunity to negotiate a reduced price);
People
v. Drake, 475 N.E.2d 1018, 1021-22 (Ill. App. Ct. 1985) (stating that
information shown on stickers attached to stolen items are admissible
evidence);
DeBruce v. State, 461 So.2d 889, 892 (Ala. Crim. App. 1984)
(holding that price attached to stolen property at time of theft is
circumstantial evidence of value);
Lacy v. State, 432 So.2d 1205,
1206 (Miss. 1983) (holding that price tags are not hearsay and are admissible
when attached at time of theft);
Calbert v. State, 670 P.2d 576, 576
(Nev. 1983) (per curiam) (stating that price tags attached at time of theft are
competent evidence of value);
Lauder v. State, 195 A.2d 610, 611 (Md.
1963) (price tags admissible where tag is attached at time of arrest and
similar tags are attached to similar articles throughout the store). As one
court has explained, the inherent unreliability of hearsay is not present in
these circumstances because “[i]t is common knowledge that department and other
stores regularly affix price tags to items of merchandise and that the tagged
price is what a purchaser must pay to acquire an item, without the opportunity
to negotiate a reduced price or to question how the tagged price was reached.”
Twine
v. Commonwealth, 629 S.E.2d 714, 718 (Va. Ct. App. 2006). Thus, it is
“unreasonable and unnecessary to require that in each case a merchant must send
to court not only a [witness to the theft] but also other personnel to
establish the reliability of the information shown on a price tag affixed to an
item that has been stolen.”
Id.
{14} We need not decide
today whether price tags should be technically excludable as hearsay because
this case is markedly different from those instances in which a
person—generally a security guard or store employee—testifies at trial about
the value of the stolen item based on a price tag affixed to the item at the
time of the theft. Here, Moeller had no independent knowledge of the value of a
32" Sanyo LCD HD television at the Wal-Mart in Artesia—that it was
displayed for regular sale and carried a price tag of $576. Rather, Moeller
testified that she obtained the price information after being requested to do so
by the State, some ten months after the theft occurred. The State provided the
make and model number to Moeller in order for her to conduct her research.
Moeller explained that she learned the price of the television by researching
inventory reports on the Wal-Mart intranet. She testified that the price of a
32" Sanyo LCD HD television in January 2009—seven months after Defendant
stole the television—had changed to $478, that the price was $576 in June 2008,
and that the price had been “rolled back” to $498 in September 2008. The
reports which formed the basis of Moeller’s testimony were not introduced at
trial or admitted into evidence.
{15} Given the facts of
this case,
Martinez and the line of cases addressing the issue of
whether price tags are out-of-court assertions of the fact to be proved have no
bearing on our inquiry. Moeller’s testimony about the price of the television
was not based on independent knowledge of figures stated on a price tag affixed
to or near the television at the time of the theft. Rather, her testimony
concerning the price of a 32" Sanyo LCD HD television on June 22, 2008,
was the result of a records search of Wal-Mart’s intranet database many months
and several price adjustments after the theft had occurred. What is involved here
is simply classic hearsay testimony which, by itself, does not meet any
exceptions to the rule. Accordingly, we conclude that Moeller’s testimony about
the price of the television was properly excludable as hearsay unless qualified
under the business records exception. We now turn to the district court’s
ruling in that regard.
{16} At trial, Moeller
testified about the research she conducted to determine that the in-store price
of a 32" Sanyo LCD HD television on June 22, 2008, was $576, exclusive of any
tax. She also testified in some detail about the records concerning merchandise
and pricing that Wal-Mart keeps on its electronic intranet database. Defense
counsel objected to Moeller’s testimony, because he did not know of and had not
seen the reports she was relying on for her testimony. Moeller admitted that
she did not print out the records on which she had based her testimony, but she
testified that the records are kept both as a hard copy and on the database.
However, she did not print out any of the reports nor did she bring a hard copy
of the information on which she based her testimony to the trial. The State
merely elicited testimony from Moeller about the contents of records that were
not available for review and were not admitted into evidence. The district
court nevertheless allowed Moeller’s testimony alone to be introduced as a
business record exception. Defendant contends that the district court abused
its discretion in admitting Moeller’s testimony because if the record she
referred to qualified as a business record, then a printout or some other
record should have been admitted into evidence. We agree.
{17} Evidence is
admissible pursuant to Rule 11-803(F) when it is:
[a] memorandum, report, record or
data compilation, in any form, of acts, events, conditions, opinions or
diagnoses, made at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to make
the memorandum, report, record or data compilation, all as shown by the
testimony of the custodian or other qualified witness . . . unless the source
of information or the method or circumstances of preparation indicate lack of
trustworthiness.
Rule 11-803(F). The plain language of this rule provides that
the exception is for “[a] memorandum, report, record or data compilation.” See
Rule 11-803(F). Thus, it is clear that the business records exception
requires some form of document that satisfies the rule’s foundational elements
to be offered and admitted into evidence and that testimony alone does not
qualify under this exception to the hearsay rule. We find persuasive the
Georgia appellate court’s holding that “testimony regarding the contents of
business records, unsupported by the records themselves, by one without
personal knowledge of the facts constitutes inadmissible hearsay.” Ingles
Mkts., Inc. v. Martin, 513 S.E.2d 536, 538 (Ga. Ct. App. 1999). “While the
testimony is apparently sufficient to identify the records as those of facts
duly recorded in the normal course of business, thus qualifying the records for
admission in evidence as [an] exception to the hearsay rule, the testimony of
the witness based on no personal knowledge, just the records is inadmissible
hearsay.” Id. (alteration omitted) (internal quotation marks and
citation omitted); see also Goodman v. State, 235 A.2d 560, 562 (Md. Ct.
Spec. App. 1967) (holding that it was error to allow a qualified witness to
give lay opinion testimony about records, when the records were not admitted,
even though they may have been admissible). Accordingly, we conclude that Rule
11-803(F) requires that the physical document, record or report, be admitted
into evidence and that testimony about the contents of record not produced is
insufficient under the rule.
{18} The district court
permitted Moeller to testify without the report over Defendant’s objections.
Even if Moeller was qualified to testify as to the foundational requirements of
the business record as the State contends, it was still error for the district
court to admit her testimony regarding the price of the television where the
record was not admitted into evidence and where she had no personal knowledge
of that information.
See State v. Pacheco,
2008-NMCA-131, ¶ 34,
145 N.M.
40,
193 P.3d 587 (“A district court abuses its discretion when it misapplies or
misapprehends the law.”). Consequently, the district court erred in admitting
Moeller’s testimony that the price of the television on the date of the theft
was $576. For these reasons, we reverse Defendant’s conviction.
The State Presented Sufficient
Evidence to Support a Finding That the Television Had a Market Value of Over
$500 on the Date of the Crime
{19} Defendant contends
that the State did not present sufficient evidence upon which a rational fact
finder could have found, beyond a reasonable doubt, that the television was
worth more than $500 on June 22, 2008. We address his argument because he is
entitled to greater relief if sufficient evidence was not presented to support
his conviction.
See State v. Akers,
2010-NMCA-103, ¶ 31,
149 N.M. 53,
243 P.3d 757. If we conclude that the State did not present sufficient evidence
that the value of the television exceeded $500, Defendant may not be retried on
these charges.
See State v. Montes,
2007-NMCA-083, ¶ 24,
142 N.M. 221,
164 P.3d 102.
{20} When reviewing the
sufficiency of the evidence presented to support a conviction, we apply a
substantial evidence standard.
State v. Chavez,
2009-NMSC-035, ¶ 11,
146
N.M. 434,
211 P.3d 891. The reviewing court must consider “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.”
Id. (internal quotation marks and citation
omitted). Considering the evidence in the light most favorable to the
prosecution means that we indulge all reasonable inferences and resolve all
conflicts in the evidence in favor of the verdict.
Id. When reviewing
the sufficiency of the evidence to support a conviction, “we consider all the
evidence, including evidence that was improperly admitted.”
State v. Lopez,
2009-NMCA-044, ¶ 27,
146 N.M. 98,
206 P.3d 1003.
{21} In shoplifting cases,
where the State is required to prove the value of the merchandise that was
taken, we have previously held that “‘value’. . . means ‘market value’” and it
can be supported with evidence of the price of the item.
State v. Contreras,
1996-NMCA-045, ¶¶ 3-4,
121 N.M. 550,
915 P.2d 306. However, in cases where a
price set by a store does not reflect the actual market value of an item, the
inference established by the price can be rebutted by other evidence.
Id. ¶
4.
{22} Moeller testified
that the retail price of the 32" Sanyo television was $576, excluding any
sales tax. She also testified that the price had probably changed at some point
in September and was $478 in January 2009 after the theft. Defendant questioned
Moeller about Wal-Mart’s pricing techniques. She explained that Wal-Mart does
not engage in retail reference pricing—the practice of offering items for sale
at a fictional price and later discounting to a sale price so that a consumer
will feel like he has received a good deal, even though the store has made its
fully anticipated profit when it sells the item at the discounted price.
Moeller testified that the Artesia Wal-Mart had not sold any other 32"
Sanyo televisions in June 2008. She stated that she did not know whether other
Wal-Mart stores had sold 32" Sanyo televisions for $576 in June 2008 or
how many had sold after the price decreased.
{23} Defendant also
presented Moeller with a print-out dated September 8, 2008, from Wal-Mart’s
internet website, that listed a 32" Sanyo television for sale at the price
of $498. She explained that she had looked at an intranet database, not
Wal-Mart’s internet website, to determine the price of the television on June
22, 2008. She explained that she was not familiar with the prices of items on
the internet website, because a Wal-Mart store will not price match or price
compare Wal-Mart’s internet website prices. Moeller acknowledged that the store
had occasionally sold display items for a discount of up to ten percent off the
marked price because display models do not have a box or an owner’s manual.
{24} Indulging in all
reasonable inferences in favor of the verdict, we conclude that the State
presented substantial evidence that the value of the television was more than
$500 in June 2008. Moeller testified that the price in June 2008 was $576. The
fact that the Wal-Mart in Artesia did not sell any 32" Sanyo televisions
during that month for $576 does not mean that there was not a buyer that would
pay $576 for a 32" Sanyo television in a different month in the Artesia
store or at some other Wal-Mart store during the month of June 2008.
See
State v. Kleist, 895 P.2d 398, 401 (Wash. 1995) (en banc) (concluding that
the market value of an item is the sale price arrived at by a well-informed
buyer and a well-informed seller). Furthermore, because Moeller’s testimony
supported the idea that Wal-Mart does not engage in retail reference pricing or
price matching with its own internet site, there is sufficient evidence that on
June 22, 2008, the television was worth more than $500.
See Contreras,
1996-NMCA-045, ¶ 4 (holding that the inference that ticket price reflects
market value could not be sustained when there was testimony that “jewelry
[was]
never sold at the ticket price” (emphasis in original)).
{25} For these reasons,
we conclude that the State presented substantial evidence that the value of the
television exceeded $500. Defendant may be retried on this charge.
See
Montes,
2007-NMCA-083, ¶ 24.
{26} For the foregoing
reasons, we reverse Defendant’s conviction for shoplifting merchandise worth
more than $500, in violation of Section 30-16-20(B)(3). However, retrial is not
barred because the State presented substantial evidence to support his
conviction. We remand this matter to the district court for retrial of the
felony shoplifting charge.
MICHAEL D. BUSTAMANTE, Judge
Topic Index for State v. Cofer, Docket No. 29,717
CA-SE Substantial or
Sufficient Evidence
EV-DO Documentary Evidence
EV-EE Exclusion of
Evidence