May 27, 2011 – State of New Mexico v. Bryan Cofer, No. 29,717

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: May 27, 2011

NO. 29,717

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

BRYAN COFER,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Thomas A. Rutledge, District J udge

Gary K. King, Attomey General
Santa Fe, NM
Francine A. Chavez, Assistant Attomey General

Albuquerque, NM

for Appellee

Jacqueline L.. Cooper, Acting Chief Public Defender
Nina Lalevic, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION
VANZI, Judge.
{1} 	Defendant Bryan Cofer appeals his conviction for shoplifting merchandise
worth over $500, a fourth-degree felony, in violation of NMSA 1978, Section 30-16-
20(B)(3) (2006). 	On appeal, we address his arguments that (1) the district court
abused its discretion in admitting improper hearsay evidence by allowing the State’s
only witness to testify to statements from a report that was not admitted into evidence,
and (2) the State failed to present sufficient evidence that the market value of the
merchandise was over $500. We reverse Defendant’s conviction because the district
court erred in allowing hearsay testimony about the price of the merchandise and
because the report the witness relied on was not admitted into evidence under the
hearsay exception of a record of regularly conducted activity. However, because there
was sufficient evidence to support Defendant’s conviction, retrial is not barred.
BACKGROUND
{2} 	On June 22, 2008, Defendant took a 32" Sanyo LCD HD television from
Wal-Mart in Artesia, New Mexico. When an officer in Roswell, New Mexico, pulled
Defendant over based on information provided by the police dispatcher, the officer
noticed a 32" Sanyo television in plain view in the back seat of Defendant’s vehicle.
After the police officer read Defendant his Miranda rights, Defendant admitted that

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he shoplifted the television from Wal-Mart. The State charged Defendant with one
count of shoplifting over $500, in violation of Section 30-16-20(B)(3).
{3} 	At a bench trial on April 28, 2009, Defendant stipulated to the facts that “[o]n
June 22, 2008, he took a Sanyo 32" television from the Wal-Mart in Artesia . . .
without paying for it.” He did not stipulate to the value of the item taken. Kathryn
Moeller, an assistant manager from the electronics department at the Artesia Wal-
mart, was the only witness for the State. 	She testified that she had researched the
value of the television and that based on an intranet database, the in-store price for the
television was $576 on the date of the crime.
{4} 	Defense counsel objected to Moeller’s testimony, arguing that the price of the
television was hearsay, that Moeller needed to lay a better foundation for the evidence,
that the prosecution had violated its duty to disclose the report Moeller researched in
violation of Rules 5-501 and 16-308 NMRA, and that Defendant’s Sixth Amendment
right to confrontation had been violated. The State responded that there is a pricing
exception to the hearsay rule and that, therefore, Moeller’s testimony about the price
of the television was not hearsay. The district court asked the State to lay a foundation
for Moeller’s testimony and then allowed her to testify regarding the price of the
television. The district court concluded that Moeller’s testimony could establish that
the report she researched qualified as a business record and that the State did not

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breach its duty to disclose the report because it had disclosed the witness months
before the trial.
{5} 	Following Moeller’s testimony, the district court found that the value of the
television exceeded $500 and Defendant was convicted of shoplifting merchandise
valued at more than $500, in violation of Section 30-16-20(B)(3), a fourth-degree
felony. Defendant was sentenced to eighteen months on the shoplifting charge, with
one year suspended; however, his sentence was enhanced by four years due to his
status as a habitual offender.
DISCUSSION
{6} 	On appeal, Defendant raises two issues. He argues that the district court abused
its discretion in allowing hearsay into evidence. He also contends that the State did
not present sufficient evidence to support his conviction. We address each in turn.
Hearsay Testimony and the Business Records Exception
{7} 	We review the district court’s “admission of evidence for an abuse of
discretion.” 	State v. Branch, 2010-NMSC-042, ¶ 9, 148 N.M. 601, 241 P.3d 602.
There is an abuse of discretion “when the ruling is clearly against the logic and effect
of the facts and circumstances of the case.” State v. Moreland, 2008-NMSC-031, ¶ 9,
144 N.M. 192, 185 P.3d 363 (internal quotation marks and citation omitted). If there
are reasons that both support and detract from a court’s decision, there is no abuse of
discretion. Id.

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{8} 	In this case, Moeller testified that she conducted research on Wal-Mart’s
electronic intranet database to determine the price of the television. 	There is no
dispute that Moeller’s testimony that the television set was priced at $576 on the date
of the crime was being offered to establish that the television was worth over $500.
On appeal, Defendant asserts that the district court erred in allowing Moeller to testify
to the price of the television. 	Defendant contends that the statement of price was
inadmissible hearsay evidence. Further, Defendant argues that Moeller’s testimony
should not have been admitted as an exception to the rule against hearsay for records
of regularly conducted activity because the price report Moeller relied on was not
introduced into evidence.
{9} 	“‘Hearsay’ is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Rule 11-801(C) NMRA. 	Rule 11-802 NMRA prohibits the admission of hearsay
evidence with certain exceptions. 	One of the exceptions to the hearsay rule is the
admission of records of regularly conducted activity, also known as the business
records exception. 	Rule 11-803(F) NMRA. 	We begin our analysis by first
determining whether Moeller’s statements of price based on her research of the
Wal-mart computer database constitutes hearsay and, if it does, whether her testimony
based on documents not admitted into evidence constitutes an exception under Rule
11-803(F).

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{10} 	We agree with Defendant that Moeller’s testimony at trial that the price of the
television was $576 was inadmissible hearsay. We do so for two reasons. First, we
note that although it did not explicitly rule that Moeller’s testimony was hearsay, the
district court determined that Moeller could testify about the price of the television
based on her research under the business records exception to the hearsay rule if the
State laid an adequate foundation. The State apparently did so, and the district court
allowed Moeller’s testimony under the business record exception, ultimately ruling
that the price of the television was $576 on the date it was stolen. On appeal, the State
contends that the district court properly admitted her testimony under the records of
regularly conducted activity exception. 	Because the State does not challenge
Moeller’s testimony as not being hearsay, we conclude that it has acquiesced in the
district court’s ruling that the admission of Moeller’s testimony was proper only under
the business record exception to the hearsay rule.
{11} 	Second, even if the State properly preserved its argument that there is a price
exception to the hearsay rule, we nevertheless determine that Moeller’s testimony in
this case constituted inadmissible hearsay. At trial, the State argued—as it does on
appeal—that this Court in City of Albuquerque v. Martinez, 93 N.M. 704, 604 P.2d
842 (Ct. App. 1979), implicitly held that a written statement of price is not hearsay.
Therefore, the State argues that all testimony about the price of a stolen item is
admissible evidence notwithstanding that there is no corresponding documentation

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introduced into evidence at trial. 	We are not persuaded, and we conclude that the
State’s application of Martinez is distinguishable from the present case on its facts.
{12} 	In Martinez, a security manager testified to the value of a stolen coat based on
a price tag that he picked up that had been attached to the coat. Martinez, 93 N.M. at
705, 604 P.2d at 843. The defendant argued that the State failed to prove the value of
the merchandise he shoplifted. Id. at 705, 604 P.2d at 843. We disagreed and held
that “in a shoplifting case [the security manager’s testimony] that merchandise was
displayed for regular sale at a marked price representing its retail price is sufficient
circumstantial evidence of value, where totally uncontradicted, to support a conviction
grounded upon the marked price as its value.” Id. Martinez adopted the holding in
Norris v. State, 475 S.W.2d 553, 555-56 (Tenn. Crim. App. 1971), in which the
Tennessee appellate court concluded that the testimony of two security officers
regarding the price of merchandise they observed on price tags attached to the
merchandise displayed for sale was not hearsay.
{13} 	Martinez, Norris, and the line of cases allowing testimony concerning the value
of a stolen item based on the information found on a price tag have generally found
that such testimony is admissible because items displayed for sale over a period of
time with a price tag upon it, indicating the item’s regular sale price, is commonly
known and capable of ready demonstration. See, e.g., Norris, 475 S.W.2d at 555-56;
see also Robinson v. Commonwealth, 516 S.E.2d 475, 478-79 (Va. 1999) (stating that

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it is common knowledge that department stores regularly affix price tags to
merchandise and that is the price the purchaser must pay without an opportunity to
negotiate a reduced price); People v. Drake, 475 N.E.2d 1018, 1021-22 (Ill. App. Ct.
1985) (stating that information shown on stickers attached to stolen items are
admissible evidence); DeBruce v. State, 461 So.2d 889, 892 (Ala. Crim. App. 1984)
(holding that price attached to stolen property at time of theft is circumstantial
evidence of value); Lacy v. State, 432 So.2d 1205, 1206 (Miss. 1983) (holding that
price tags are not hearsay and are admissible when attached at time of theft); Calbert
v. State, 670 P.2d 576, 576 (Nev. 1983) (per curiam) (stating that price tags attached
at time of theft are competent evidence of value); Lauder v. State, 195 A.2d 610, 611
(Md. 1963) (price tags admissible where tag is attached at time of arrest and similar
tags are attached to similar articles throughout the store). As one court has explained,
the inherent unreliability of hearsay is not present in these circumstances because “[i]t
is common knowledge that department and other stores regularly affix price tags to
items of merchandise and that the tagged price is what a purchaser must pay to acquire
an item, without the opportunity to negotiate a reduced price or to question how the
tagged price was reached.” Twine v. Commonwealth, 629 S.E.2d 714, 718 (Va. Ct.
App. 2006). Thus, it is “unreasonable and unnecessary to require that in each case a
merchant must send to court not only a [witness to the theft] but also other personnel

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to establish the reliability of the information shown on a price tag affixed to an item
that has been stolen.” Id.
{14} 	We need not decide today whether price tags should be technically excludable
as hearsay because this case is markedly different from those instances in which a
person—generally a security guard or store employee—testifies at trial about the value
of the stolen item based on a price tag affixed to the item at the time of the theft.
Here, Moeller had no independent knowledge of the value of a 32" Sanyo LCD HD
television at the Wal-Mart in Artesia—that it was displayed for regular sale and
carried a price tag of $576. 	Rather, Moeller testified that she obtained the price
information after being requested to do so by the State, some ten months after the theft
occurred. The State provided the make and model number to Moeller in order for her
to conduct her research. Moeller explained that she learned the price of the television
by researching inventory reports on the Wal-Mart intranet. She testified that the price
of a 32" Sanyo LCD HD television in January 2009—seven months after Defendant
stole the television—had changed to $478, that the price was $576 in June 2008, and
that the price had been “rolled back” to $498 in September 2008. The reports which
formed the basis of Moeller’s testimony were not introduced at trial or admitted into
evidence.
{15} 	Given the facts of this case, Martinez and the line of cases addressing the issue
of whether price tags are out-of-court assertions of the fact to be proved have no

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bearing on our inquiry. Moeller’s testimony about the price of the television was not
based on independent knowledge of figures stated on a price tag affixed to or near the
television at the time of the theft. Rather, her testimony concerning the price of a 32"
Sanyo LCD HD television on June 22, 2008, was the result of a records search of
Wal-Mart’s intranet database many months and several price adjustments after the
theft had occurred. What is involved here is simply classic hearsay testimony which,
by itself, does not meet any exceptions to the rule. Accordingly, we conclude that
Moeller’s testimony about the price of the television was properly excludable as
hearsay unless qualified under the business records exception. We now turn to the
district court’s ruling in that regard.
{16} 	At trial, Moeller testified about the research she conducted to determine that the
in-store price of a 32" Sanyo LCD HD television on June 22, 2008, was $576,
exclusive of any tax. She also testified in some detail about the records concerning
merchandise and pricing that Wal-Mart keeps on its electronic intranet database.
Defense counsel objected to Moeller’s testimony, because he did not know of and had
not seen the reports she was relying on for her testimony. Moeller admitted that she
did not print out the records on which she had based her testimony, but she testified
that the records are kept both as a hard copy and on the database. However, she did
not print out any of the reports nor did she bring a hard copy of the information on
which she based her testimony to the trial. The State merely elicited testimony from

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Moeller about the contents of records that were not available for review and were not
admitted into evidence. The district court nevertheless allowed Moeller’s testimony
alone to be introduced as a business record exception. Defendant contends that the
district court abused its discretion in admitting Moeller’s testimony because if the
record she referred to qualified as a business record, then a printout or some other
record should have been admitted into evidence. We agree.
{17} 	Evidence is admissible pursuant to Rule 11-803(F) when it is:
[a] memorandum, report, record or data compilation, in any form, of acts,
events, conditions, opinions or diagnoses, made at or near the time by,
or from information transmitted by, a person with knowledge, if kept in
the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record or data compilation, all as shown by the testimony of the
custodian or other qualified witness . . . unless the source of information
or 	the 	method 	or 	circumstances 	of 	preparation 	indicate 	lack 	of
trustworthiness.
Rule 11-803(F). The plain language of this rule provides that the exception is for “[a]
memorandum, report, record or data compilation.” See Rule 11-803(F). Thus, it is
clear that the business records exception requires some form of document that satisfies
the rule’s foundational elements to be offered and admitted into evidence and that
testimony alone does not qualify under this exception to the hearsay rule. We find
persuasive the Georgia appellate court’s holding that “testimony regarding the
contents of business records, unsupported by the records themselves, by one without
personal knowledge of the facts constitutes inadmissible hearsay.” Ingles Mkts., Inc.

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v. Martin, 513 S.E.2d 536, 538 (Ga. Ct. App. 1999). 	“While the testimony is
apparently sufficient to identify the records as those of facts duly recorded in the
normal course of business, thus qualifying the records for admission in evidence as
[an] exception to the hearsay rule, the testimony of the witness based on no personal
knowledge, just the records is inadmissible hearsay.” Id. (alteration omitted) (internal
quotation marks and citation omitted); see also Goodman v. State, 235 A.2d 560, 562
(Md. Ct. Spec. App. 1967) (holding that it was error to allow a qualified witness to
give lay opinion testimony about records, when the records were not admitted, even
though they may have been admissible). 	Accordingly, we conclude that Rule 11-
803(F) requires that the physical document, record or report, be admitted into
evidence and that testimony about the contents of record not produced is insufficient
under the rule.
{18} 	The district court permitted Moeller to testify without the report over
Defendant’s objections. Even if Moeller was qualified to testify as to the foundational
requirements of the business record as the State contends, it was still error for the
district court to admit her testimony regarding the price of the television where the
record was not admitted into evidence and where she had no personal knowledge of
that information. 	See State v. Pacheco, 2008-NMCA-131, ¶ 34, 145 N.M. 40, 193
P.3d 587 (“A district court abuses its discretion when it misapplies or misapprehends
the law.”). Consequently, the district court erred in admitting Moeller’s testimony that

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the price of the television on the date of the theft was $576. For these reasons, we
reverse Defendant’s conviction.
The State Presented Sufficient Evidence to Support a Finding That the Television
Had a Market Value of Over $500 on the Date of the Crime
{19} 	Defendant contends that the State did not present sufficient evidence upon
which a rational fact finder could have found, beyond a reasonable doubt, that the
television was worth more than $500 on June 22, 2008. 	We address his argument
because he is entitled to greater relief if sufficient evidence was not presented to
support his conviction. See State v. Akers, 2010-NMCA-103, ¶ 31, 149 N.M. 53, 243
P.3d 757. If we conclude that the State did not present sufficient evidence that the
value of the television exceeded $500, Defendant may not be retried on these charges.
See State v. Montes, 2007-NMCA-083, ¶ 24, 142 N.M. 221, 164 P.3d 102.
{20} 	When reviewing the sufficiency of the evidence presented to support a
conviction, we apply a substantial evidence standard. State v. Chavez, 2009-NMSC-
035, ¶ 11, 146 N.M. 434, 211 P.3d 891. The reviewing court must consider “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. (internal quotation marks and citation omitted). Considering the evidence
in the light most favorable to the prosecution means that we indulge all reasonable
inferences and resolve all conflicts in the evidence in favor of the verdict. Id. When

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reviewing the sufficiency of the evidence to support a conviction, “we consider all the
evidence, including evidence that was improperly admitted.” State v. Lopez, 2009-
NMCA-044, ¶ 27, 146 N.M. 98, 206 P.3d 1003.
{21} 	In shoplifting cases, where the State is required to prove the value of the
merchandise that was taken, we have previously held that “‘value’. . . means ‘market
value’” and it can be supported with evidence of the price of the item. 	State v.
Contreras, 1996-NMCA-045, ¶¶ 3-4, 121 N.M. 550, 915 P.2d 306. However, in cases
where a price set by a store does not reflect the actual market value of an item, the
inference established by the price can be rebutted by other evidence. Id. ¶ 4.
{22} 	Moeller testified that the retail price of the 32" Sanyo television was 	$576,
excluding any sales tax. 	She also testified that the price had probably changed at
some point in September and was $478 in January 2009 after the theft. Defendant
questioned Moeller about Wal-Mart’s pricing techniques. She explained that Wal-
Mart does not engage in retail reference pricing—the practice of offering items for
sale at a fictional price and later discounting to a sale price so that a consumer will feel
like he has received a good deal, even though the store has made its fully anticipated
profit when it sells the item at the discounted price. Moeller testified that the Artesia
Wal-Mart had not sold any other 32" Sanyo televisions in June 2008. She stated that
she did not know whether other Wal-Mart stores had sold 32" Sanyo televisions for
$576 in June 2008 or how many had sold after the price decreased.

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{23} 	Defendant also presented Moeller with a print-out dated September 8, 2008,
from Wal-Mart’s internet website, that listed a 32" Sanyo television for sale at the
price of $498. She explained that she had looked at an intranet database, not Wal-
Mart’s internet website, to determine the price of the television on June 22, 2008. She
explained that she was not familiar with the prices of items on the internet website,
because a Wal-Mart store will not price match or price compare Wal-Mart’s internet
website prices. Moeller acknowledged that the store had occasionally sold display
items for a discount of up to ten percent off the marked price because display models
do not have a box or an owner’s manual.
{24} 	Indulging in all reasonable inferences in favor of the verdict, we conclude that
the State presented substantial evidence that the value of the television was more than
$500 in June 2008. Moeller testified that the price in June 2008 was $576. The fact
that the Wal-Mart in Artesia did not sell any 32" Sanyo televisions during that month
for $576 does not mean that there was not a buyer that would pay $576 for a 32"
Sanyo television in a different month in the Artesia store or at some other Wal-Mart
store during the month of June 2008. See State v. Kleist, 895 P.2d 398, 401 (Wash.
1995) (en banc) (concluding that the market value of an item is the sale price arrived
at by a well-informed buyer and a well-informed seller). 	Furthermore, because
Moeller’s testimony supported the idea that Wal-Mart does not engage in retail
reference pricing or price matching with its own internet site, there is sufficient

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evidence that on June 22, 2008, the television was worth more than $500. 	See
Contreras, 1996-NMCA-045, ¶ 4 (holding that the inference that ticket price reflects
market value could not be sustained when there was testimony that “jewelry [was]
never sold at the ticket price” (emphasis in original)).
{25} 	For these reasons, we conclude that the State presented substantial evidence that
the value of the television exceeded $500. Defendant may be retried on this charge.
See Montes, 2007-NMCA-083, ¶ 24.
CONCLUSION
{26} 	For the foregoing reasons, we reverse Defendant’s conviction for shoplifting
merchandise worth more than $500, in violation of Section 30-16-20(B)(3). However,
retrial is not barred because the State presented substantial evidence to support his
conviction. 	We remand this matter to the district court for retrial of the felony
shoplifting charge.
{27} 	IT IS SO ORDERED.
_______________________________
LINDA M. VANZI, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge

TIMOTHY L. GARCIA, Judge
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