State v. Reilly O. Leith
State v. Reilly O. Leith
Opinion
The defendant, Reilly O. Leith, appeals her conviction in the Superior Court ( Wageling , J.) for theft by unauthorized taking. See RSA 637:3 (2016). She raises issues concerning the admissibility and sufficiency of the evidence presented by the State to establish that the value of the stolen property exceeded $ 1,000, and thus rendered the offense a class B felony. See RSA 637:11, II(a) (2016). We affirm.
I
The jury could have found the following facts. On September 21, 2013, a loss prevention officer apprehended the defendant outside a Kohl's store in Newington after observing what she identified as shoplifting through store security cameras. The officer retrieved 30 stolen items from the defendant's person, as well as a bag she was carrying, and contacted the police. Using an inventory form, the officer recorded the price of the stolen merchandise by matching each item with its corresponding price tag. The total tagged price of the items stolen by the defendant, as recorded by the loss prevention officer on the inventory *175 form, was $ 1,174. The defendant was subsequently charged with felony-level theft. See RSA 637:3, :11, II(a).
During direct examination of the loss prevention officer at trial, the State sought to admit the inventory form completed by the officer immediately following the theft. The defendant objected on hearsay, relevance, best evidence, confrontation, and burden-shifting grounds. The trial court admitted the inventory form and overruled the defendant's objections, explaining that: (1) the jurors could give the form "the weight that they think it deserves"; (2) the form was admissible under the business records exception to the hearsay rule; (3) "the accuracy and authenticity and use of numbers aren't substantially in doubt"; (4) the defendant was able to effectively cross-examine the loss prevention officer; and (5) no burden shifting had occurred. The defendant did not call any witnesses.
At the close of evidence, the defendant moved to dismiss the felony indictment, arguing that "viewing all evidence in a light most favorable to the State, no rational trier of fact could conclude beyond a reasonable doubt that [the defendant] took merchandise in excess of $ 1,000." The State responded that it had introduced sufficient evidence to prove that the defendant had stolen over $ 1,000 worth of property, given the evidence of the "retail value" of the items, which, the State asserted, represented the "highest market value." The trial court denied the defendant's motion to dismiss, finding that there was sufficient evidence upon which a rational jury could find that the State had sustained its burden.
The defendant did not object to the court's proposed jury instructions on the definition of value. The court instructed the jury that:
Value means the market value or the price which the property will bring in a fair market at the time of the alleged theft, after reasonable efforts have been made to find the purchaser who will give the highest price for it. Value means the highest amount determined by any reasonable standard of property.
The jury convicted the defendant, and this appeal followed.
II
We turn first to the defendant's evidentiary challenges. We accord the trial court considerable deference in determining the admissibility of evidence, and we will not disturb its decision absent an unsustainable exercise of discretion.
State v. Lynch
,
The defendant initially asserts that the loss prevention officer lacked the requisite personal knowledge to testify regarding the tagged prices of the stolen items. See N.H. R. Ev. 602. She argues that the officer's testimony was inadmissible because it was based on information gained from price tags affixed to the stolen items, which, the defendant contends, are themselves inadmissible hearsay. See N.H. R. Ev. 801, 802. A careful examination of the record reveals that the State did not offer its evidence of value through the loss prevention officer's testimony, but rather through its admission of the inventory form, the foundation of which was laid by the officer's testimony. Thus, in reviewing the trial court's admission of evidence regarding value, we focus our analysis on the defendant's assertion that the inventory form was inadmissible hearsay.
"Hearsay is a statement, other than the one made by the declarant while
*176
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
State v. Hammell
,
For evidence to be admitted under the business records exception, Rule 803(6) requires that the record be "made at or near the time" of the event "by, or from information transmitted by, a person with knowledge."
N.H. R. Ev.
803(6).
1
In addition, the rule mandates that the record be "kept in the course of a regularly conducted business activity," and that it be "the regular practice of that business activity" to make the record.
At trial, the loss prevention officer testified that she had created inventory forms "[h]undreds" of times, and described in detail the information to be included when filling out the form. She further testified that she created the form at issue after apprehending the defendant. This information provided the trial court with a basis to conclude that the form was created "at or near the time of" the theft by a "qualified witness."
N.H. R. Ev.
803(6) ;
see
Wall
,
The loss prevention officer also testified that the tagged price of Kohl's merchandise is established by an agreement between
*177
Kohl's and its vendors. She stated that the merchandise is then tagged by the vendors, and arrives at the store with the price tags already affixed. She further testified that she completed the inventory form at issue by referring to the stolen items and their corresponding price tags. This testimony provided a basis for the court to conclude that the officer completed the form using information that was transmitted by Kohl's, one of the parties responsible for establishing the price of the merchandise, and therefore a "person with knowledge" of the items' price.
Furthermore, there is nothing in the record to indicate that the source of the information in the inventory form, or its method of preparation, indicates a "lack of trustworthiness."
As stated above, the loss prevention officer testified that the tagged price of Kohl's products is established through an agreement between Kohl's and its vendors, and that vendors affix the tags to the merchandise before distributing the products to the store. As someone who understood the system of how the price tags were made, the loss prevention officer was a "qualified witness" under the requirements of Rule 803(6).
See
Wall
,
Furthermore, there is nothing in the record to indicate that the source of the information on the price tags, or their method of preparation, indicates a "lack of trustworthiness."
N.H. R. Ev.
803(6). Here, the loss prevention officer testified that Kohl's, in collaboration with its vendors, establishes the price of its merchandise. This price, once recorded on tags affixed to the merchandise, represents Kohl's "opinion as to the value of [its] goods offered for sale."
State v. Downing
,
*178
see
McNamara v. Moses
,
In finding that the inventory form, as well as the price tags on which the form was based, do not indicate a "lack of trustworthiness," we recognize that the loss prevention officer conceded at trial that she had no way of knowing if the prices displayed on the tags were accurately recorded by Kohl's vendors. However, as we stated in
Wall
, any deficiencies in the evidence presented by the State were considerations for the jury.
Wall
,
The same is true here, where, at trial, the defendant called into question the accuracy of the prices recorded on the tags. This possible inaccuracy was a factor to be considered by the jury in determining the reliability of the price tag evidence to prove the value of the stolen merchandise.
See
id
. at 244,
*179 The defendant next argues that under the best evidence rule, the price tags themselves, rather than the inventory form, must have been introduced at trial to establish the tagged prices of the stolen items. The best evidence rule states that an "original writing, recording, or photograph is required" to prove the content of a writing. N.H. R. Ev. 1002. The rule originated at common law to "guarantee against inaccuracies and fraud by insistence upon production of original documents." N.H. R. Ev. 1001 Reporter's Notes. Here, the accuracy of the inventory form has not been questioned by the defendant, however, and there is nothing in the record to indicate that admission of the price tags would "guarantee against inaccuracies." Id .; see 2 George Dix et al ., McCormick on Evidence § 243.1, at 173 (7th ed. 2013) ("The purpose of [rules requiring the production of original writings] is simple and practical. That purpose is to secure the most reliable information as to the contents of documents, when those terms are disputed. A mystical ideal of seeking 'the best evidence' or the 'original document' as an end in itself is no longer the goal. Consequently when an attack is made on appeal on the judge's admission of secondary evidence, it seems that the reviewing tribunal should ordinarily make inquiry of the complaining counsel, 'Does the party whom you represent actually dispute the accuracy of the evidence received as to the material terms of the writing?' "). In other words, there is no reason to believe in this case that the prices represented on the stolen items' tags were not accurately transferred to the inventory form.
Indeed, in responding to the defendant's objections, the trial court found that "the accuracy and authenticity and use of numbers aren't substantially in doubt." And, when asked by the State at trial if the form represented "a fair and accurate list of the values that you saw on the tags," the loss prevention officer responded, "yes."
Cf.
Beech v. State
,
*180
Next, the defendant argues that admission of the inventory form violated her right to confrontation because it was prepared in connection with a criminal investigation, and thus was testimonial in nature. This argument is based on the analysis applicable to the Sixth Amendment to the Federal Constitution,
see
U.S. CONST. amend. VI ;
Crawford v. Washington
,
That claim fails because, as discussed above, the inventory form was not prepared for litigation purposes, and thus was not testimonial. While falling within a hearsay exception does not automatically place the form outside the realm of testimonial evidence, the fact that the form was "created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial" does.
Melendez-Diaz v. Massachusetts
,
The defendant's final evidentiary challenge is one of unconstitutional burden shifting. She asserts that in allowing the State to prove value by the "tagged price" of the stolen merchandise, a form of evidence that she deems untrustworthy, she is forced to prove her innocence by establishing the "actual value" of the items. As already discussed, however, the evidence of value was properly admitted by the trial court. Because the State offered admissible evidence of value, no burden was placed on the defendant to disprove felony theft. Furthermore, the defendant's burden-shifting argument boils down to little more than a protest that, in the absence of her presentation of evidence to refute the price tag evidence offered by the State, the jury will be more likely to find the State's evidence persuasive. We have little reason to doubt that this thesis is true, but the mere fact that a decisionmaker is more apt to accept as true evidence that is not controverted than evidence that is controverted - a seemingly universal phenomenon - hardly amounts to unlawful burden shifting. Thus, the trial court sustainably exercised its discretion in overruling the defendant's burden-shifting objection.
III
We turn next to the defendant's challenge to the sufficiency of the evidence. The defendant asserts that because the non-premium items stolen by the defendant *181 might have been sold by the store at a discount, "no rational trier of fact could have found the State proved value in excess of $1,000 beyond a reasonable doubt." In response, the State argues that the total tagged price recorded in the inventory form represents "value" as it is defined in New Hampshire for purposes of determining the grade of theft: "the highest amount determined by any reasonable standard of property or services." RSA 637:2, V (2016). For the reasons stated below, we agree with the State that it produced sufficient evidence from which the jury could find that the value of the stolen items was "more than $1,000 but not more than $1,500." RSA 637:11, II(a).
A challenge to the sufficiency of the evidence raises a claim of legal error; therefore, our standard of review is
de
novo
.
State v. Morrill
,
New Hampshire's definition of value is consistent with § 223.1(2)(c) of the Model Penal Code, which states that "[t]he amount involved in a theft shall be deemed to be the highest value, by any reasonable standard, of the property or services which the actor stole or attempted to steal."
Model Penal Code and Commentaries
§ 223.1(2)(c), at 126 (1980). Other jurisdictions have adopted this definition as well.
See, e.g.
,
At trial, the jury was presented with the following evidence of value: (1) that the total tagged price of the stolen merchandise was $1,174; (2) that five of the 30 items stolen by the defendant were "premium" products that "do not ever go on sale"; (3) that a sweater stolen by the defendant was shown to be on sale through video footage presented by the State; (4) that the loss prevention officer was unaware if any of the other non-premium items were on sale; (5) that items at Kohl's are put on clearance at a discount of between 30 and 90 percent; and (6) that none of the items that the defendant stole were on clearance. While it is possible that, given this evidence, the jury could have concluded that some, all, or none of the non-premium items may have sold for a price below that shown on the tags, this evidence did not preclude the jury from finding that the price tag amounts represented on the items constituted their
highest
reasonable value.
See
Scott
,
Therefore, viewing the evidence presented at trial and all reasonable inferences therefrom in the light most favorable to the State, the defendant has failed to demonstrate that no rational trier of fact could have found her guilty beyond a reasonable doubt of the class B felony-level theft offense.
See
Stanin
,
Affirmed .
HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
In 2017, after the defendant's trial, stylistic, non-substantive amendments were made to New Hampshire Rule of Evidence 803(6).
In response to the defendant's argument that the loss prevention officer lacked the requisite knowledge to testify as to value, we note that, because the price tag evidence was not inadmissible hearsay, her testimony, even without the inventory form, may have been admissible, so long as the same foundation was laid.
See
Pace v. State
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.