March 7, 2019
- Whether an inventory form prepared by a loss prevention officer is inadmissible hearsay, the best evidence of the different prices of the items alleged to have been stolen, shifts the burden to the Defendant to disprove the prices of the items, and whether the evidence submitted by the State was sufficient to sustain a felony theft conviction.
Ms. Reilly O. Leith (Defendant) appealed her conviction for felony level theft by unauthorized taking following a jury trial in Rockingham County. On appeal, the Defendant raised evidentiary issues concerning the admissibility of certain evidence, and whether the evidence submitted by the State was sufficient to sustain the conviction.
The Defendant first argued that an inventory form completed by a loss prevention officer, offered by the State, was inadmissible hearsay. In finding that the inventory form was admissible, the Court examined the business record exception found at N.H. R. Ev. 803(6). In concluding that the inventory form was admissible, the Court found that the loss prevention officer, who testified at trial, established a foundation for the form and that the form was specifically not created for purposes of litigation. The Court disagreed with the Defendant’s assertion that the loss prevention officer’s testimony was used to establish the price of each item on the form, finding that the testimony was only used to establish the foundation for the form itself. On appeal, the Defendant also argued that the inventory form contained hearsay within hearsay since the form listed information found on the price tags of different items. The Court disagreed with this argument, finding that the tags themselves were also business records and, therefore, admissible under the same exception.
The Defendant next argued that the inventory form should have been barred under the best evidence rule found at N.H. R. Ev. 1002. The Court dismissed this argument finding that the accuracy of the inventory form was not questioned by the Defendant finding that the intent of the best evidence rule is to protect against inaccuracies and fraud, not to simply prohibit introduction of a copy of an original. Next, the Defendant argued that the inventory form should have been excluded as it violated her right to confrontation. However, the Court concluded that the inventory form was not prepared for litigation, as testimony established that the form is produced whenever items are lost, regardless of whether litigation commences. Defendant also argued that the introduction of the inventory form unconstitutionally shifted the burden to her to disprove the prices established by the form by proving the actual value of the items stolen. In dismissing this claim, the Court found that this argument amounts 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.”
After making her evidentiary challenges, the Defendant made a challenge to the sufficiency of the evidence arguing that the State had failed to submit adequate evidence that the total value of all of the items stolen was more than One Thousand Dollars, as required by statute. The Court addressed the definition of the word “value” in addressing the evidence submitted by the State. The Court then concluded that the jury could have found that the value of the items stolen could have exceeded the monetary threshold, and that the State had therefore met its burden.
Gordon J. MacDonald, Attorney General, with Stephen D. Fuller, Senior Assistant Attorney General on memorandum of law and orally for the State. Albert Hansen of Bosen & Associates, PLLC on brief and orally for Mr. Leith.