June 29, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINCENT JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-06-0700.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 8, 2011
Before Judges Sapp-Peterson and Fasciale.
Defendant appeals from his conviction for fourth-degree shoplifting, N.J.S.A. 2C:20-11b(1).*fn1 He contends, for the firsttime, that the trial judge abused his discretion by admitting into evidence a register receipt concerning the value of items taken. We affirm.
David Culliton, a manager at ShopRite, watched defendant attempt to walk out of the store without paying for seafood. Culliton confronted defendant and escorted him to the seafood department. Defendant then returned the seafood, walked out of the store, and was apprehended by the police.
After defendant was arrested, Culliton watched a clerk scan the seafood items on a "register in training."*fn2 Scanning the price tag on the seafood allowed the register to total the amount of the stolen items.
The State proved the value of the merchandise through testimony from Culliton. Before being questioned about the register receipt, Culliton testified independently that the value of the seafood -- "six lobsters, five shrimp, crab cake, crab legs and some [s]napper filet" -- was more than $200. The State introduced into evidence, without objection and after Culliton's testimony about value, the receipt from the "registerin training." The receipt, with a total of $259.02, verified what the clerk scanned.
Defendant was not present during the trial and the jury found him guilty as charged. The judge sentenced him to five years probation with 364 days in the county jail, and imposed the proper fines and penalties. This appeal followed.
On appeal, defendant raises the following argument:
THE HEARSAY DOCUMENT OFFERED AS PROOF OF VALUE WAS CREATED SPECIFICALLY FOR LITIGATION AND IMPROPERLY OFFERED INTO EVIDENCE; AS IT WAS THE ONLY EVIDENCE THAT ELEVATED THE CRIME TO A FOURTH-DEGREE, THE MATTER MUST BE REMANDED FOR A NEW TRIAL ABSENT THIS IMPROPER EVIDENCE (NOT RAISED BELOW).
The scope of our review of a judge's evidentiary ruling is generally limited to ascertaining whether his or her discretion was mistakenly exercised, provided the ruling is not inconsistent with applicable law. State v. Burns, 192 N.J. 312, 332 (2007) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)); State v. B.M., 397 N.J. Super. 367, 374 (App. Div. 2008). Error in the admission of evidence will not be deemed harmful if the weight of the evidence against the defendant is great. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.) (citing State v. Federico, 198 N.J. Super. 120, 131 (App. Div. 1984), aff'd, 103 N.J. 169 (1986)), certif. denied, 170 N.J. 209 (2001).
Here, defendant failed to object on hearsay grounds to the admissibility into evidence of the receipt; therefore, we must determine whether any error contributed to an unjust and unwarranted result. R. 2:10-2; State v. Macon, 57 N.J. 325, 333, 337-38 (1971).
After Culliton testified that the value of the seafood was more than $200, the prosecutor then showed him the receipt generated by the register. Defense counsel requested that the prosecutor lay a foundation that Culliton observed the sales clerk scan the seafood items and produce the receipt. Culliton then testified that he watched the clerk scan the items. He identified that the receipt was generated by the clerk, and verified that the receipt contained the proper date and time, referenced the correct ShopRite, and number of items scanned. Culliton identified the receipt as a copy of the document he gave to the prosecutor. After conducting a brief voir dire, defense counsel did not object to the admissibility of the receipt on hearsay grounds,*fn3 and the judge admitted the receipt into evidence. Defense counsel then cross-examined Culliton about the value of the seafood and the information contained on the receipt.*fn4
Pursuant to N.J.S.A. 2C:20-11b(1), "[s]hoplifting shall consist of any one or more of the following acts:"
(1) For any person purposely to take possession of, carry away, transfer or cause to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof. [(Emphasis added.)]
"'Full retail value' means the merchant's stated or advertised price of the merchandise[.]" N.J.S.A. 2C:20-11a(7). Culliton testified that the sales clerk used the price on the seafood items when generating the receipt. "[P]roof of the fact of the actual sales price . . . is adequate to support a prima facie case of the [shoplifting]." State v. King, 164 N.J. Super. 330, 336 (App. Div. 1978), certif. denied, 81 N.J. 54 (1979). Defense counsel had the opportunity to fully cross-examine Culliton about whether he observed the clerk accurately scan the price tag on the seafood items. In fact, Culliton acknowledged that although the receipt did not indicate how much per pound the lobster was, he understood that "the price on the bag is what [the clerk] rung up." Culliton's testimony alone was sufficient to establish a prima facie case of fourth-degree shoplifting.
Defendant's failure to object on hearsay grounds indicates that he did not, in the context of the proofs, deem the admissibility of the receipt to be prejudicial or improper. The register receipt was nothing more than a calculation of the prices on the seafood items that Culliton witnessed the clerk scan. There is no credible suggestion that the register malfunctioned or calculated the amount on the price tags improperly. Under the circumstances of this case, we hold that the admission into evidence of the receipt did not constitute plain error. R. 2:10-2.