State v. Mohr

632 N.W.2d 382

10 Neb. App. 442

STATE of Nebraska, Appellee, v. Mitzi S. MOHR, Appellant.

No. A-00-935.

Court of Appeals of Nebraska.

August 14, 2001.

Gerard A. Piccolo, Hall County Public Defender, for Appellant.

Don Stenberg, Attorney General, and Scott G. Gunem for Appellee. IRWIN, Chief Judge, and SIEVERS and CARLSON, Judges.

PER CURIAM.

A jury convicted Mitzi S. Mohr of theft by shoplifting, which was a Class IV felony due to her prior theft convictions. The district court for Hall County sentenced her to 1 to 2 years' imprisonment. The issue is whether the State has proved value of the shoplifted merchandise so that there is sufficient evidence to sustain the conviction.

BACKGROUND

Around 4:45 p.m. on January 1, 2000, Thad Nobles, the loss-prevention manager at the Sears department store in the Conestoga Mall, Grand Island, Nebraska, observed Mohr via security video cameras place two dresses under her coat and exit the store. A copy of the videotape taken by the security camera shows Mohr furtively take two dresses off their hangers and, after pausing with her back to the camera, exit Sears with a male cohort. Nobles testified that he ran after Mohr and her companion in an attempt to stop them and bring them back to Sears. The couple ignored Nobles' requests to return to Sears and continued to walk away, whereupon, he grabbed onto the backs of their coats. According to Nobles, Mohr threw the dresses onto the floor, and the couple "wiggled out of their coats" and "took off running," eventually exiting the mall. Nobles pursued the couple outside and telephoned the police. After a police officer arrived at the mall, Nobles and the officer returned to Sears, where Nobles showed the officer the videotape of Mohr's theft. Upon returning to Sears, Nobles learned that a mall patron had returned the two stolen dresses and the fleeing couple's coats to Sears. According to Nobles, he photographed the stolen dresses and "ran them through the register so that [he] could get a price and item number for the officer." Mohr was apprehended several months later on a bench warrant for failing to appear at her arraignment on this charge.

Nobles was the only witness to testify concerning the value of the two stolen dresses. He stated that he took the dresses to a sales associate and asked him or her to return the dresses to the sales floor. When asked whether he knew what had happened to the dresses after taking them to the sales associate, he stated, "Not for sure, no." Later on in his testimony, Nobles stated, "As far as I know [the stolen dresses] have been sold." Over Mohr's relevance, foundation, hearsay, and best evidence objections, Nobles testified that the "price tags" on the two dresses showed that Sears was selling one of them for $58.50 and the other for $39.60. He stated that he looked at the clothes racks from which the two stolen dresses had come the day the theft occurred and observed that the same or similar dresses on those racks were "offered at the same or similar price" as the two stolen dresses. Additionally, Nobles testified that he was familiar with how Sears sells its merchandise because his job requires that he be "familiar with each department and how everything is merchandised." More specifically, he stated that the two stolen dresses came out of the "junior department," wherein "[e]ach rack [of clothes] has a similar price point so that it's easier for the customers to shop, so we don't have like $20 dresses on the same rack as the $60 dresses unless they are clearance." Nobles did not testify to the selling price of the dresses stolen or about sales of similar dresses.

ASSIGNMENTS OF ERROR

Mohr asserts that the county court erred in (1) allowing Nobles to testify concerning the price tags on the stolen dresses, (2) not defining or instructing the jury on value, (3) determining this was a third-offense shoplifting conviction, and (4) not granting her motion for directed verdict made at the close of the evidence.

STANDARD OF REVIEW

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by such rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in the admissibility of evidence. State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000). When judicial discretion is not a factor involved in assessing admissibility of evidence, the court's application of the Nebraska Evidence Rules will be upheld unless clearly erroneous. Id.

Whether a trial court should have granted a motion for directed verdict at the close of the State's case is a question of law, regarding which an appellate court must reach a conclusion independent of the determination reached by the district court. State v. Johnson, 9 Neb.App. 140, 609 N.W.2d 48 (2000).

ANALYSIS

We begin with an overview of the State's burden of proof on the issue of value. In a theft prosecution, the value of the property stolen is an essential element of the offense that must be proved beyond a reasonable doubt. Neb.Rev.Stat. § 28-518(8) (Reissue 1995); State v. Ybarra, 9 Neb.App. 230, 609 N.W.2d 696 (2000). Value is defined as the market value at the time and place where the property was criminally appropriated. Id. The value of articles stolen from a stock of merchandise may be established by proof of the price at which the articles and other like articles are being offered and sold at the place where the articles were stolen. Id. In addition, market value of articles at the time and place of taking may be established by direct and circumstantial evidence. See State v. Weik, 206 Neb. 217, 292 N.W.2d 289 (1980).

May Nobles Testify to Sears' Prices for Stolen Dresses?

Mohr asserts that Nobles, the loss-prevention manager, should not have been allowed to testify to the sales prices printed on the price tags on the stolen dresses on three different evidentiary grounds: relevance, hearsay, and best evidence. Mohr's "best evidence" objection disposes of this assignment of error. Mohr argues that the State had to produce either the price tags or a Sears receipt showing the prices of the dresses in order to comply with the best evidence rule.

The best evidence rule, also known as the original document rule, Neb. Rev.Stat. § 27-1002 (Reissue 1995), states that the original writing, recording, or photograph is required to prove the content of that writing, recording, or photograph. The best evidence rule does not set up a hierarchy for admissibility of evidence, but applies when a party seeks to prove material contents of a writing, recording, or photograph. State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000). The purpose of the best evidence rule is to prevent fraud, inaccuracy, mistake, or mistransmission of critical facts contained in a writing, recording, or photograph when its contents are an issue in a proceeding. Id.

Judicial discretion is not a factor under the best evidence rule because the original writing, recording, or photograph "is required" to prove the content thereof. § 27-1002. A "writing" for purposes of the best evidence rule includes "numbers ... set down by handwriting, typewriting, printing" and "[i]f data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original." Neb. Rev.Stat. § 27-1001 (Reissue 1995). Clearly, the price tags affixed to the dresses taken by Mohr constitute original writings. The price tags were not offered into evidence. Thus, the question is whether the State was attempting to prove the content of the price tags such that the originals were required, making Nobles' testimony inadmissible.

The prosecutor asked Nobles whether he "recall[ed] looking at the price tag[s]" on the dresses and whether he recalled "what [they] said." Nobles recalled looking at the price tags but could not remember "what [the price tags] said." After refreshing his recollection with a "piece of paper that ha[d] everything itemized," the prosecutor again asked whether Nobles recalled what the "price tag of the red dress" was and "what the price tag of the maroon dress depicted in Exhibit 4 [picture of the stolen dresses] was." Mohr objected on the ground of best evidence to these questions. The trial court overruled her objections, and Nobles testified that the price tag of the red dress "was 58.50" and that the price of the maroon dress "was $39.60." The State maintains that it is unclear as to how Nobles arrived at these prices, that Mohr is merely speculating as to what information Nobles relied upon in arriving at those prices, and that we should not speculate as to the foundation for Nobles' testimony concerning the dresses' prices. However, we think that the key is what questions were asked.

The prosecutor did not ask "How much did the dresses cost?" or "What were the dresses selling for?" or "Based on your knowledge and experience with Sears retail practices, what were the prices?" but, instead, asked Nobles what the price tags "said." Neb.Rev.Stat. § 27-1004 (Reissue 1995), which carves out exceptions to the best evidence rule, makes exceptions for specific instances of unavailability, such as where the original has been lost or destroyed or cannot be obtained by judicial means, neither of which apply here, or the original is not closely related to a controlling issue. State v. Kula, supra. Proof of value, which is best done through proof of the price at which an item is offered and sold, State. v. Ybarra, 9 Neb.App. 230, 609 N.W.2d 696 (2000), was a "controlling issue" in the State's shoplifting case against Mohr. Thus, the exceptions from § 27-1004 are inapplicable. Nobles was asked to testify to the content of a writing instead of the price at which the dresses or similar ones were offered and sold. Thus, the original writing was required instead of Nobles' testimony of the price tags' contents. Consequently, the district...