COURT OF APPEALS OF VIRGINIA

Present: Judges McCullough, Huff and Senior Judge Haley Argued at Chesapeake, Virginia

JEROME CLAY CALFEE MEMORANDUM OPINION * BY v. Record No. 0625-13-1 J UDGE JAMES W. HALEY, JR. MAY 13, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE John W. Brown, Judge M. Colston Jones, Assistant Pub lic Defender (Office of the Public Defender, on brief), for appellant. Lauren C. Campbell, Assistant A ttorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Jerome Clay Calfee, appellant, appeals his conv iction for grand larceny in violation of Code § 18.2-95. On appeal, a ppellant contends the trial court erred by admitting into evidence the receipt created by Walmart store employees to demonstrate the valu e of the items allegedl y stolen. He also argues the evidence was insufficien t to establish he had the intent to deprive Walm art of all the property contained in the sho pping cart. We affirm the d ecision of the trial court. Jacklyn Hyater worked as an asset protection associate at Walmart. At about 11:10 p.m. on August 26, 2012, she saw appellant pushing a shoppi ng cart containing me rchandise. Hyater testified that appellant drew he r attention because his shopping car t contained “several different kinds of laundry detergent, several different ki nds of beer, [and] several different kinds of tissue.” Hyater followed appellant throughout the store as appellant put a dditional items into the cart. Hyater saw appellant remove a plastic Walmart bag from his pocket and place some of

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - items from the shopping cart into the bag. Hyater testified that, after he placed some of the merchandise into the Walmart bag, appellant pus hed the shopping cart thr oughout the store. He passed a closed cash register, and he passed the last point of sale as he walked toward the exit of

the store. Hyater approached appellant when he was in the vestibule area near the exit of the building. She identified herself as an asset protection officer, and she asked appellant to accompany her back into the store. Appellant fo llowed Hyater. Hyater testified appellant acted “a little jittery” when they arrived at the office door. He then fl ed without taking the merchandise. Hyater pursued appellant, and appe llant encountered a police officer near the door of the store. The police officer saw Hyater was chasing appellant and he asked appellant to stop, but appellant tried to run past him. The o fficer apprehended appellant by taking him “to the ground.” Hyater testified she took the shopping cart to a cash register and watched the customer service representative “ring up” the merchandise from the cart by scanning the UPC codes on the items. In response to a question from the tria l court, Hyater agreed that the UPC is the “methodology” used by Walmart to identif y items and the pr ice of each item. Hyater obtained the receipt from the cash re gister, and she photographed the items in the cart. The receipt showed the to tal value of the items in the shopping cart and in the Walmart bag was $249.52. Hyater testified she did not persona lly know the price of each of the items in appellant’s shopping cart. At trial, appellant objected to the trial cour t’s admission of the cash register receipt into evidence, arguing that a proper foundation for the admission of the r eceipt had not been established because Hyater was not sufficiently fa miliar with the price of the items. The trial court overruled appellant’s objection and admitted the receipt.- 3 - At the end of the trial, appellant argued the evidence was insufficient to prove he had formed the intent to permanently deprive Walmar t of all of the merchandise. The trial court found that appellant’s conduct of concealing some of the items in the plastic bag, walking into the vestibule without paying for the items, and his attempted flight from the scene supported the conclusion that appellant intended to steal the items and he committed grand larceny. Appellant appealed his c onviction to this Court. Appellant argues the trial court erred by adm itting the cash register receipt into evidence because Hyater did not have sufficient familiarity with the prices of the merchandise and the accuracy of the price informa tion reflected on the receipt. “The admissibility of evidence is within th e broad discretion of th e trial court, and a ruling on appeal will not be disturbed in the absence of an abuse of discretion.” Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 ( 1988). The Supreme Court of Virginia “recognized an exception to the hearsay rule in shoplifting cases permitting the admission into evidence of price tags regularly affixed to items of personalty offered for sale or, in substitution, testimony concerning the amounts shown on such tags when . . . there is no objection to such testimony on best evidence grounds” in order to establish the value of the items. Robinson v. Commonwealth, 258 Va. 3, 10, 516 S.E.2d 475, 479 (1999) (involving employee testimony regarding value based on employees’ observati ons of amounts they observed on price tags affixed to stolen items). Appellant relies on Twine v. Commonw ealth, 48 Va. App. 224, 629 S.E.2d 714 (2006), in support of his argument. In Twine, the defendant was convicted of grand larceny for shoplifting various items from a grocery store. Twine argued the trial court erred when it admitted into evidence a receipt that was gene rated by scanning the bar codes of the various items Twine was accused of stealing. Twine, 48 Va. App. at 226, 629 S.E.2d at 715. A cashier- 4 - from the grocery store testified she observed th e items scanned and the receipt generated by the cash register. She testified “the name and pri ce of the items listed on the cash register receipt corresponded with her ‘recoll ection and understanding of what was rung up.’” Id. at 228, 629 S.E.2d at 716. She further stated that, although she could not recall the exact prices of the items she saw scanned, she was “‘familiar with the prices’ of the stolen items and each item listed on the receipt appeared to have the ri ght price listed next to it.” Id. Appellant argues the instant case is distingu ishable from Twine because, here, Hyater testified that she was not personally familiar with the actual prices of the items. Although the

cashier in Twine testified she was “familiar with th e prices” of the items listed on the receipt and the receipt appeared to have th e correct prices, the Court’s deci sion in the case did not turn on that testimony. Rather, this C ourt found, “[b]ecause, when scanned, they disclose to the cashier and the customer the current pricing informati on for the items being purchased, the bar codes on products are, . . . ‘the price tags’ for those item s.” Id. at 234, 629 S.E.2d at 719. “It is the receipt generated by scanning the bar codes at a cash regi ster that summarizes the purchase prices of the items in a form that is comprehensible to the fa ct finder at trial.” I d. at 233, 629 S.E.2d at 719. “Plainly, such a receipt is no less inherently trustworthy and reliable than the testimonial

valuation summaries admitted into evidence in Robinson.” Id. (footnote omitted). Thus, the Court held “the price tag exception to the hear say rule in shoplifting cases recognized by the Supreme Court in Robinson permits the admission into evidence of a cash register receipt generated by scanning the bar codes on the stolen items of merchandise . . . .” Id. at 234, 629

S.E.2d at 719. Furthermore, Hyater was present when the customer service manager scanned the bar codes of the items in appellant’s cart and Hyater photographed the items in the cart. The trial judge noted that the cash regi ster receipt contained thirty -seven items, and he counted- 5 - thirty-seven items depicted in th e photographs. The trial judge al so stated that he reviewed a number of the items listed on the cash register receipt and “every item I looked at on the Walmart cash register receipt was, in fact, pictured.” 1 Accordingly, the trial court did not abuse its discretion by admitting the cash re gister receipt into evidence. Appellant also argues the evidence was insu fficient to establish his “intent to deprive Walmart of all of the property contained in th e shopping cart, as opposed to the items concealed

within the Walm art shopping bag.” “On appeal, ‘we review the evidence in th e light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quo ting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). The specific intent to commit [a crime] may be inferred from the conduct of the accused if such intent flows naturally from the conduct proven. Where the conduct of the accused under the circumstances involved points wi th reasonable certainty to a specific intent to commit [the crime], the intent element is established. Wilson v. Commonwealth, 249 Va. 95, 101, 452 S. E.2d 669, 674 (1995) (citation omitted). We ask only “whether, after viewing the evid ence in the light most favorable to the prosecution, any rational trier of fact could have f ound the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). In doing so, we are mindful that “great deference must be given to the fact finder who, ha ving seen and heard the witnesses, assesses their credib ility and weighs thei r testimony.” Walt on v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1988).

1 Moreover, as explained in Twine, “‘[w]hile such evidence, when admitted, would suffice to make out a prima facie case of an item’s value, the accused would retain full opportunity to cross-examine adverse witnesses a nd to present rebutting evidence on the issue of value.’” Id. at 234, 629 S.E.2d at 719 (quoti ng Robinson, 258 Va. at 10, 516 S.E.2d at 479).- 6 - The evidence showed that while appellant was inside the store, he placed numerous items into a shopping cart and he concea led some of those items in a plastic Walmart bag he removed from his pocket. Appellant continued to push th e shopping cart containing all of the items, not just the items he had concealed in the Walmart bag. He pushed the cart past a closed cash register, past the other points of sale, and into the vestibule area located near the exit doors. Appellant was in the vestibule area of the stor e when Hyater stopped him. He acted “jittery” while he was in the presence of Hyater, and he attempted to flee from both Hyater and the police officer. “Flight following the commission of a crime is evidence of guilt . . . .” Clagett v. Commonwealth, 252 Va. 79, 93, 472 S.E.2d 263, 271 (1996). From the evidence of appellant’s conduct th roughout the incident, the trial court could infer that appellant intended to steal all of the items in the shopping cart, not just the bagged merchandise. Accordingly, the evidence was suff icient to prove beyond a reasonable doubt that appellant committed grand larceny. For the foregoing reasons, we affirm appellant’s conviction.

Affirmed.