COURT OF APPEALS OF VIRGINIA

Present: Judges McCl anahan, Petty and Powell Argued at Richmond, Virginia

MAURICE MEADE BROWN OPINION BY v. Record No. 1034-08-2 JUDGE WILLIAM G. PETTY MAY 12, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge Michael T. Hemenway for appellant. Eugene Murphy, Senior Assistant Attorn ey General (Robert F. McDonnell, Attorney General, on brief), for appellee.

On June 11, 2007, Maurice Meade Brown was convi cted of grand larceny in violation of Code § 18.2-95. On appeal Brown argues that the trial court erroneously allowed a witness to testify to events he viewed on a video surveillance ta pe without requiring admission of the tape

itself in violation of the best evidence rule. 1 In addition, Brown argues that the evidence was insufficient to prove beyond a reasonable doubt that Brown committed grand larceny. For the following reasons, we disagree with Br own and affirm his conviction.

I. B ACKGROUND On appeal, we review the evidence in the “ light most favorable” to the prevailing party below, the Commonwealth, Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786

1 Brown also argues that the witness’ testimony was hearsay. While he originally made a hearsay objection along with his be st evidence rule objection, when asked to state the basis for his objection Brown chose to rely on the best ev idence rule. Because the trial court never ruled on Brown’s hearsay objection, we dec line to consider this argument.- 2 - (2003), and we grant to that party all fair inferences flowing therefrom. Coleman v.

Commonwealth , 52 Va. App. 19, 21, 660 S.E.2d 687, 688 (2008). On October 4, 2006, Brown entered a Giant Foods store in Albemarle County with three

other individuals: two males and one female. After all four individuals walked in, they separated and two walked through the beer aisle and two walked through the produce aisle. The group met back at the frozen food section and the three men—includi ng Brown—grabbed twelve bags of crab legs. The men walked in a row, one behind the other, towa rd the bathroom in the

back of the store. They went into the men’s bathroom with the bags of crab legs in hand. When they walked out of the bathroom, “they had not hing” in their hands. They walked through the pharmacy toward the front of the store, never stopping to pay for anyt hing at the checkout register. Once they were outside, they ran to ward their car. Their female companion was already at the car, and the three me n “jumped in” and drove away. The store florist, Connie Wallace, observed the entire sequence of events. She testified that she saw the group walk into the store, sepa rate, and reassemble at the frozen food section and grab the crab legs. Wallace informed the st ore security guard of what she believed to be suspicious behavior and followed the group to keep an eye on them. She saw the men take the crab legs into the men’s bathroom and come out of the bathroom with nothing. She followed the group out of the store and saw them jump into their car. Before the car could drive out of sight, Wallace wrote down the license plat e number and gave that information to the security guard. Wallace testified that, to her knowledge, the crab legs were never recovered. Greg Moubray, who was employed by Giant Foods Asset Protecti on Division, testified that Wallace told him about the suspicious gr oup. Moubray personally observed the group of three men—including Brown—run out of the store and jump into a gray Ford Taurus, which sped away. The woman was already at the car.- 3 - Moubray went upstairs to observe the store’ s video surveillance system that “record[s] things that are happening . . . at the time they are happening.” Brown objected to Moubray testifying about what he saw on the video record ing on two bases: hearsay and best evidence rule. The assistant Commonwealth’s attorney replie d that “[i]t’s not hearsa y - - it’s an image.” Brown chose to rely on his argument that Moubray ’s testimony would viol ate the best evidence rule. The trial judge then stat ed that “the best evidence rule applies to writing [sic] and therefore,” she overruled the objection. Moubray testified that on the security vide o, he saw the three me n in the frozen seafood department taking bags of crab legs. There was no one else in the frozen seafood department at the time the three men took the bags of crab legs . Because the store has a video camera directly pointed at the crab legs and shrimp, 2 Moubray was able to count a to tal of twelve bags of crab legs between the three men. After the group took the bags, Moubray saw them walk into the

bathroom corridor at which time he could no l onger see their actions on the video. Then, Moubray saw an empty cart and all the crab legs were gone. The bags of crab legs were not found in the bathroom and, in fact, they were never recovered. Moubray testified that on October 4, 2006, each ba g of crab legs cost thirty-nine dollars and ninety-nine cents. However, if a customer had a Giant card, then a bag of crab legs cost twenty-nine dollars and ninety-nine cents. Thus, the total value of the bags of crab legs was at least three hundred and fifty-nine dollars and eighty -eight cents. Based on this evidence, Brown was convicted of grand larceny and sentenced to ten years imprisonment with eight years and two months susp ended. From this judgme nt, Brown appeals.

2 According to Moubray, the video surveillanc e camera was directed toward the shrimp and crab legs because both of those were “hot item[s].”- 4 - II. A NALYSIS Brown claims the trial court erred by (1 ) admitting the testimony of Greg Moubray regarding what he observed on the surveillance vi deo because that testimony violated the best evidence rule, and (2) finding the evidence sufficient to convict him of gra nd larceny in violation of Code § 18.2-95. 3 A. The Admissibility of Evidence Ordinarily, we review questi ons regarding admissibility of evidence for an abuse of discretion, Michels v. Commonwealth , 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006), and “[o]nly when reasonable jurists could not differ can we say an abuse of discretion has occurred,” Tynes v. Commonwealth , 49 Va. App. 17, 21, 635 S.E.2d 688, 689 (2006) (citation and internal quotation marks omitted). However, “when the tr ial court makes an er ror of law” in the admission of evidence, “an abuse of discretion occurs.” Bass v. Commonwealth , 31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000). “Furthermore, such evidentiary issues presenting a ‘question of law’ are ‘reviewed de novo by this Court.’” Abney v. Commonwealth , 51 Va. App. 337, 345, 657 S.E.2d 796, 800 (2008) (quoting Michels , 47 Va. App. at 465, 624 S.E.2d at 678). Brown contends that the trial court erred in allowing Moubray to testify as to what he

observed from the surveillance vi deo recording because his testimony violated the best evidence rule. Brown, without citing any authority, argues that the best ev idence rule “con trols the proof

of the contents of writings, recordings and photographs .” (Emphasis added). We disagree with

Brown’s characterization of the rule because we c onclude that in Virginia, the best evidence rule

3 Brown presents this argument in two questions presented and in two different arguments sections in his brief. He attempts to distinguish the quest ions presented and the arguments by claiming that the trial court erred in denying his motion to strike and in finding him guilty of grand larceny. However, because th e arguments are literally identical under each heading and because both involve sufficiency of th e evidence issues, we consider them together as one argument that the evidence was insuffici ent to convict him of grand larceny under Code § 18.2-95.- 5 - applies only to writings. Butts v. Commonwealth , 145 Va. 800, 816, 133 S.E. 764, 769 (1926); Randolph v. Commonwealth , 145 Va. 883, 889, 134 S.E. 544, 546 (1926); Folson v.

Commonwealth , 23 Va. App. 521, 478 S.E.2d 316 (1996); Bradshaw v. Commonwealth , 16 Va. App. 374, 379, 429 S.E.2d 881, 884 (1993); Myrick v. Commonwealth , 13 Va. App. 333, 339, 412 S.E.2d 176, 179 (1991). See also Charles E. Friend, The Law of Evidence in Virginia § 16.1 (6th ed. 2003). Unlike many states that have codified or ot herwise formally adopted rules of evidence, Virginia adheres to the common law rules of evidence. See Code § 1-200 (adopting the common law of England to the extent that it is not repugnant to our Bill of Rights and Constitution and except as altered by the General Assembly); Hall v. Commonwealth , 233 Va. 369, 374, 355 S.E.2d 591, 595 (1987) (stating that “we adhere” to the common law rules of evidence); Coal

Riv. Coll. v. Eureka Coal Co. , 144 Va. 263, 279, 132 S.E. 337, 342 (1926) (stating that “cases not covered by the [UCC statute governing parol evidence], expressly or by fair implication, are to be governed by the common law rules of evidence”); Anthony v. Commonwealth , 142 Va. 577, 583, 128 S.E. 633, 634 (1925) (recognizing the “legis lature’s authority to . . . change the common law rules of evidence”); Slaughter v. Smither , 97 Va. 202, 208, 33 S.E. 544, 546 (1899) (stating that “[t]he common law rule[s] of evidence . . . may be traced to a remote antiquity and [are] of the utmost importance”); N. & W. R. R. Co. v. Prindle and Wife , 82 Va. 122, 127 (1886) (applying the common law rules of evidence and co mmenting that those rules were “not altered by our law”). Therefore, in considering the scope of what has become known as the best evidence rule, we must consider its historical development. The best evidence rule began as a broad, s hort, and convenient phrase that described a conglomerate of auxiliary probative rules “applicab le to specific classes of evidential material, and designed to strengthen . . . the evidential fabric and to secure it against dangers and- 6 - weaknesses pointed out by experience .” 4 John Henry Wigmore, Wigmore on Evidence §§ 1171 & 1174 (James H. Chadbourn rev. 1972) (emphasis in or iginal). The phrase did not create these rules “by deduction from the principle implied in the phrase; but the phrase came to be used as descriptive of the rule s already existing.” Id. § 1174. Lord Hardwicke, s itting as chancellor, said that “[t]he judges and sages of the law have laid it down that there is bu t one general rule of evidence, the best that the na ture of the case will allow.” Omychund v. Barker , 26 Eng. Rep. 15, 1 ATK 22, 49 (1744). Even post American Revolu tion, we can trace opinions describing the rule as “[t]he best evidence which the nature of th e case admits of, ought to be produced, and if it may be produced, inferior testimony is inadmissible.” Lee v. Tapscott , 2 Va. (2 Wash.) 276, 280-81 (1796). Thus, the rule was merely a “general obs ervation that when one sets out to prove something, one ought to prove it by the most reliable evidence available.” Friend, supra , § 16-1. The phrase “best evidence” ini tially included the original document rule, the hearsay rule, witness competency rules, and ot her rules that prefer reliable evidence to other, less reliable, evidence. Wigmore, supra , § 1172. However, almost all of the evidentiary rules that were originally encompassed in the “best evidence” phra se have been eliminated from the modern use of the term and are generally r ecognized as distinct ru les in and of themselves except for one— the original document rule. Id. § 1173. Indeed, the phrase ‘“ would probably have dropped naturally out of use long ago, if it had not come to be a convenient, short description of the rule as to proving the cont ents of a writing.’” Id. § 1173 (quoting James Bradley Thayer, Preliminary

Treatise on Evidence 489 (1898)). See also Friend, supra , § 16-1 (stating that “many authorities prefer to avoid the term ‘best evidence rule ’ entirely, and describe the modern principle governing the admission of writings by the term ‘ori ginal document rule’ or some similar term”). Since “the first quarter of the 1700s[,]” the orig inal document rule was “regularly acknowledged in practice, and applied to all kinds of writings.” Wigmore, supra , § 1177.- 7 - In Virginia, the best evidence rule is a legal term of art. Bell v. Dorey Elec. Co. , 248 Va. 378, 382, 448 S.E.2d 622, 624 (1994) (citing Black’s Law Dictionary 160 (6th ed. 1990)); see also Black’s Law Dictionary 153 (7th ed. 1999). As a legal term of art, “the best evidence rule requires that ‘where the contents of a writing are desired to be proved, the writing itself must be produced or its absence sufficiently accounted for before other evidence of its contents can be

admitted.’” Bradshaw , 16 Va. App. at 379, 429 S.E.2d at 885 (emphasis added) (quoting Randolph , 145 Va. at 889, 134 S.E. at 546; Butts , 145 Va. at 816, 133 S.E. at 769); see also Myrick , 13 Va. App. at 339, 412 S.E.2d at 179 (stating that the best evid ence rule excludes secondary evidence only “when the terms of a writing or document are material”). 4 Our Supreme Court even characterized this principle as “elementary law.” Butts , 145 Va. at 816, 133 S.E. at 769. We have, on at least one occasion, re ferred to the best evidence rule synonymously with the original document rule, which only applies to writings. Myrick , 13 Va. App. at 339, 412 S.E.2d at 179. Further, the original documen t rule is identical to our Supreme Court’s

definition of the best evidence rule. Id. ; Butts , 145 Va. at 816, 133 S.E. at 769. The Boyd-Graves Conference of the Virginia Bar Association published A Guide to Evidence in Virginia , which “restate[s] the present law of evidence in Virginia in a single,

4 Nonetheless, among the practicing bar and sometimes among our courts, the phrase “best evidence” is still sometimes used in a manner that connotes the evidential preference implied by the phrase that some evidence is better—or more reliable—than other evidence. See e.g. , Jones v. Jones , 249 Va. 565, 457 S.E.2d 365 (1995) (stating th at a bid at an open auction, as opposed to an appraisal, is the “best evidence” of the fair market value of the property sold at the auction). But the phrase, when used in that sense, does not require the exclusion of the secondary evidence. Id. (While the bid was the “best evidence” of the fair market value, the Court did not use the phrase to exclude the evidence of the appraisal.); see also Caterpillar Tractor Co. v. Hulvey , 233 Va. 77, 82, 353 S.E.2d 747, 751 (1987) (stating that the jurors’ unanimous verdict is the “best evidence” of each juror’s opinion in the case, but not using the phrase as an exclusionary rule); Walton v. Roanoke , 204 Va. 678, 683, 133 S.E.2d 315, 319 (1963) (stating that a blood test is the “best ev idence” to prove that a person is intoxicated, but not requiring the exclusion of ot her evidence such as the odor of alcohol or the demeanor and conduct of the defendant).- 8 - organized body of principles for the convenience of judges and pract itioners alike. It is not intended to change any aspect of Virginia law.” A Guide to Evidence in Virginia i (2009). That publication describes the best evidence rule as fo llows: “[t]o prove the content of a writing, the original writing is required, except as otherwise provided in these rules, Rules of the Supreme Court of Virginia, or in a Virginia statute.” Id. § 1002. A writing is defined as consisting of “letters, words, or numbers, or their equivale nt, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechan ical or electronic recording, or other form of data compilation or preservation.” Id. § 1001. Moreover, our General Assembly has defined a writing as any representation of words, lette rs, symbols, numbers, or figures whether (i) printed or inscribed on a tangible medium or (ii) stored in an electronic or other medium and retrievable in a perceivable form and whether an electronic signature authorized by Chapter 42.1 (§ 59.1-479 et seq.) of Title 59.1 is or is not affixed. Code § 1-257.

From this we conclude that the best eviden ce rule in Virginia applies only to writings and, clearly, a videotape is not a writing as understood at comm on law and as defined by Code § 1-257. Brown argues, however, th at the essential purpose behind the best evidence rule—the preference for the original document rather than the memory of a witness as to its contents— should be applied to videotapes. In other word s, he argues, when a party attempts to offer

evidence of events recorded on a vi deotape, the original videotape is the best and most reliable evidence and must be produced. Br own would, therefore, have us expand the best evidence rule to apply to videotapes as well as writings. 5

5 We note that the Federal Rules of Eviden ce do exactly that by expanding the scope of the best evidence rule by requi ring the original “wr iting, recording, and p hotograph.” Fed. R. Evid. § 1001(1). The Rules further define a phot ograph to include videot apes. Fed. R. Evid. § 1001(2). Additionally, forty-two states have adopt ed rules identical or substantially similar to- 9 - In this case, Brown asks us to reverse a tr ial court for correctly applying the law as it

existed at the time of trial. We decline to do so. 6 We believe that when a party seeks to abrogate or significantly limit, modify, or expand a co mmon law rule of evidence that has been so venerably accepted that “the memory of man r unneth not to the contrary,” 1 William Blackstone, Commentaries on the Laws of England 67 (1765), the responsibility for doing so is primarily a function for the legislature, Williamson v. The Old Brogue, Inc. , 232 Va. 350, 354, 350 S.E.2d 621, 624 (1986) (stating that “a decision . . . to abr ogate such a fundamental rule as the one under consideration is the function of the legislative, no t the judicial, branch of government”). This is

because [a] legislative change in the law is initiated by intr oduction of a bill which serves as public notice to all concerned. The legislature serves as a forum for witnesses representing interests directly affected by the decision. The issu e is tried and tested in the crucible of public debate. The decision reached by the chosen representatives of the people reflec ts the will of the body politic. And when the decision is likely to disrupt the historic balance of competing values, its effective date can be postponed to give the public time to make nece ssary adjustments. Bruce Farms v. Coupe , 219 Va. 287, 293, 247 S.E.2d 400, 404 (1978). the Federal Rules of Evidence expanding the applica tion of the best evidence rule. Virginia has not chosen to join these jurisdic tions in modifying the common law.

6 We recognize that, on occasion, our Supreme Court has chosen to modify the common law by judicial decision. Weishaupt v. Commonwealth , 227 Va. 389, 399-400, 315 S.E.2d 847, 852 (1984) (rejecting so much of the English co mmon law rule regarding the marital exemption to the crime of rape as inconsistent with the na ture and character of our law and our culture both of which treat women as independent from their husband and capable of unilaterally withdrawing consent); Hanriot v. Sherwood , 82 Va. 1 (1884) (rejecting the English common law rule which renders expert testimony of handwriti ng comparison inadmissible and stating that the common law “adapts itself to the situation of the society, being liberalized by the courts according to the circumstances of the country and in the manner and genius of the people, so as to effect a reasonable and substant ial, rather than literal complian ce with its principles” (citations and quotation marks omitted) (emphasis in the original)). While we may have the power to modify the common law, we think that, as a matt er of prudence, it should be used sparingly at the discretion of the court. Williamson v. The Old Brogue, Inc. , 232 Va. 350, 354, 350 S.E.2d 621, 624 (1986). Here, we choose not to exercise that power.- 10 - Because we decline to expand the scope of th e best evidence rule, we hold that the trial court did not abuse its discretion by admitting Mo ubray’s testimony describing the contents of the surveillance videotape. B. Sufficiency of the Evidence When addressing a challenge to the sufficiency of the evidence, we “presume the judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly wrong or without evidence” to support it. C ode § 8.01-680. Under this standard, we ask

whether “ any rational trier of fact coul d have found the essential el ements of the crime beyond a

reasonable doubt.” Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (emphasis added) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)); see also

Seaton v. Commonwealth , 42 Va. App. 739, 747-48, 595 S.E.2d 9, 13 (2004); Crowder v.

Commonwealth , 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003). Brown was convicted of grand larceny in violation of Code § 18.2-95. Larceny is a common law crime and is defined as “the wrong ful or fraudulent taking of another’s property without his permission and with th e intent to permanently deprive the owner of that property.”

Britt v. Commonwealth , 276 Va. 569, 574, 667 S.E.2d 763, 765 (2008). Grand larceny is a form of larceny that “includes the taking, not from th e person of another, of goods having a value of $200 or more.” Id. (citing Code § 18.2-95). Brown argues th at there is insufficient evidence to prove grand larceny because no witnesses saw him l eave the store with the bags of crab legs. Thus, Brown contends that the Commonwealth failed to prove that he took the bags of crab legs

from the store. “There is no distinction in the law between the weight or value to be given to either direct

or circumstantial evidence.” Muhammad v. Commonwealth , 269 Va. 451, 479, 619 S.E.2d 16, 31-32 (2005), cert. denied , 547 U.S. 1136 (2006). Our Supr eme Court has held that- 11 - ‘“circumstantial evidence is competent and is entit led to as much weight as direct evidence[,] provided that the circumstantial evidence is su fficiently convincing to exclude every reasonable hypothesis except that of guilt.’” Finney v. Commonwealth , 277 Va. 83, 89, 671 S.E.2d 169, 173 (2009) (quoting Dowden v. Commonwealth , 260 Va. 459, 468, 536 S.E.2d 437, 441 (2000)). Furthermore, circumstantial evidence “is not viewed in isolation.” Muhammad , 269 Va. at 479, 619 S.E.2d at 32. “While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances, each in sufficient in itself, may lead a reasonable mind irresistibly to a conclusion.” Id. (citation omitted). In this case, the testimony from Wallace’s pe rsonal observations, and Moubray’s review of the surveillance videotape, established that Brown and two other men grabbed twelve bags of crab legs, having a total value of at least $359.88 from the fro zen seafood counter and took them

to the men’s bathroom in the back of the store. 7 After a couple of minutes, the three men left the bathroom, walked out of the store, and ran to an awaiting car being driven by their female companion. When Moubray checked the bathroom and the hallway leading to it he was unable to locate any of the bags of crab legs. While no one saw the three men carrying the bags out of the store, the logical inference from this evidence is that the three men concealed the crab legs in their clothing while in the bathroom, and left the store. There is simply no other reasonable explanation for the disappearance of the twelve bags of crab legs.

III. C ONCLUSION Because the best evidence rule only applie s to writings, we conclude that Moubray’s testimony regarding what he saw on the surveillan ce videotape did not viol ate the best evidence

7 A bag similar in size to the bags containing th e crab legs was displa yed to the trial court but was not actually admitted into evidence and made part of the record.- 12 - rule. Further, we conclude that the eviden ce was sufficient to prove grand larceny beyond a reasonable doubt. Therefore, we affirm.

Affirmed.