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Jennings v. Commonwealth

Court of Appeals of Virginia

December 22, 2015

MARQUIS DURRELL JENNINGS
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE. Frederick B. Lowe, Judge Designate.

Jennifer L. Titter, Assistant Public Defender, for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Huff, Judges Decker and AtLee.

OPINION

Page 865

[65 Va.App. 671] RICHARD Y. ATLEE, JR., JUDGE.

Marquis Durrell Jennings appeals two felony convictions: grand larceny and grand larceny with the intent to sell. First, he argues that the trial court erred when it overruled his best [65 Va.App. 672] evidence objection to testimony about the value of the stolen goods. Second, he argues that the evidence was insufficient to support his convictions because " the testimony was based on an observation of a stack [of jeans] rather than a definite number and therefore value is at question." We find no merit in his second argument, but we agree with Jennings that the trial court should have sustained his best evidence objection. For that reason, we reverse and remand.

I. Background

" On appeal, 'we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.'"

Page 866

Dalton v. Commonwealth, 64 Va.App. 512, 515, 769 S.E.2d 698, 700 (2015) (quoting Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc )). Viewed from this perspective, the record in this case shows that J.C. Penney (" the store" ) employed Rebecca Shunk (" Shunk" ) as a loss prevention officer. In December of 2013, Shunk saw Jennings enter the store and select a suitcase. The suitcase was on sale for $79.99. Shunk watched Jennings take the suitcase up the escalator to the " men's Levi's department." Once there, Jennings placed eight pairs of men's jeans into the suitcase. He then closed the suitcase and exited the store without paying for the suitcase or the jeans. Shunk confronted Jennings outside the store. She recovered the merchandise, but Jennings got away. Eventually, Jennings was apprehended and charged with grand larceny and larceny with the intent to sell.

At trial, Jennings objected to Shunk's testimony about the value of the jeans.[1] The Commonwealth initially questioned Shunk as follows:

Q Were you aware of the value of the jeans?
[65 Va.App. 673] A Yes.
Q How were you aware of that?
A I was very well-aware of the jeans because we have to ink-tag these jeans when I do my audit so I have to make sure there are ink tags on them. If not, I put them on myself, and they are placed very close to the price.
Q You read off the price tag what the value of the jeans were?
A Yes.

Jennings's attorney objected, and had the following exchange with the trial judge:

Q Your Honor, I object as far as best evidence goes. If they are going to testify to the value of the ...

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