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State v. Leith

Supreme Court of New Hampshire

March 7, 2019

THE STATE OF NEW HAMPSHIRE
v.
REILLY O. LEITH

          Argued: October 18, 2018

         Rockingham

          Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior assistant attorney general, on the memorandum of law and orally), for the State.

          Bosen & Associates, PLLC, of Portsmouth (Albert Hansen on the brief and orally), for the defendant.

          LYNN, C.J.

         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 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 ...


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