The "best evidence rule," which made its appearance in the English law in the early part of the eighteenth century, was not originally a "rule," but rather "a general observation to the effect that when one sets out to prove something, one ought to prove it by the most reliable evidence available." Dalton v. Commonwealth, 64 Va. App. 512, 521, 769 S.E.2d 698 (2015) (quoting Charles E. Friend, Kent Sinclair, The Law of Evidence in Virginia § 18-1 (7th ed. 2012)). "[T]he best evidence rule requires that where the contents of a writing are desired to be proved, the [original] writing itself must be produced or its absence sufficiently accounted for before other evidence of its contents can be admitted."
Stith v. Commonwealth, 65 Va.App. 27, 35 (2015) (quoting Williams v. Commonwealth, 56 Va.App. 638, 642 (2010)). Thus, it is well established that weighing and balancing witness testimony "is within the exclusive province of the [trier of fact], which has the unique opportunity to observe the demeanor of the witnesses as they testify." Dalton v. Commonwealth, 64 Va.App. 512, 525 (2015) (quoting Lea v. Commonwealth, 16 Va.App. 300, 304 (1993)). "[T]he trier of fact is free to believe or disbelieve, in whole or in part, the testimony of any witness."
"Determining the credibility of witnesses . . . is within the exclusive province of the [factfinder], which has the unique opportunity to observe the demeanor of the witnesses as they testify." Dalton v. Commonwealth, 64 Va. App. 512, 525 (2015) (ellipsis in original) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304 (1993)). Therefore, this Court will not disturb the factfinder's determination of the credibility of witness testimony unless, "as a matter of law, the testimony is inherently incredible."
"'Generally, the admissibility of evidence is within the discretion of the trial court,' and an appellate court will not reject the trial court's decision absent an abuse of discretion." Dalton v. Commonwealth, 64 Va. App. 512, 519, 769 S.E.2d 698, 703 (2015) (quoting Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010)). "[A] reviewing court can only conclude that an abuse of discretion has occurred in cases where 'reasonable jurists could not differ' about the correct result."
“On appeal, ‘we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’ ” Dalton v. Commonwealth, 64 Va.App. 512, 515, 769 S.E.2d 698, 700 (2015) (quoting Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc )). Viewed from this perspective, the record in this case shows that J.C. Penney (“the store”) employed Rebecca Shunk (“Shunk”) as a loss prevention officer. In December of 2013, Shunk saw Jennings enter the store and select a suitcase.
[¶ 27] The justification for the best evidence rule is that it "lessens the probability of inaccuracy through human or mechanical error and that it promotes prevention of fraud." Field & Murray, Maine Evidence§ 1002.1 at 562 (6th ed. 2007); see alsoDalton v. Commonwealth, 64 Va.App. 512, 769 S.E.2d 698, 703 (2015) ("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." (quotation marks omitted)).
Therefore, appellant's argument presents no proper basis for reversal of his convictions. See Rule 5A:20(c)(i) ("Only assignments of error listed in the brief will be noticed by this Court."); Dalton v. Commonwealth, 64 Va.App. 512, 526 (2015). "When the law says that it is for the trier of fact to judge the credibility of a witness, the issue is not a matter of degree."
Secondly, weighing, and balancing witness testimony "is within the exclusive province of the [fact finder], which has the unique opportunity to observe the demeanor of the witnesses as they testify." Dalton v. Commonwealth, 64 Va.App. 512, 525 (2015) (quoting Lea v. Commonwealth, 16 Va.App. 300, 304 (1993)). "The living record contains many guideposts to the truth which are not in the printed record; not having seen them ourselves, we should give great weight to the conclusions of those who have seen and heard them."
"Determining the credibility of witnesses . . . is within the exclusive province of the [fact finder], which has the unique opportunity to observe the demeanor of the witnesses as they testify." Dalton v. Commonwealth, 64 Va.App. 512, 525 (2015) (first alteration in original) (quoting Lea v. Commonwealth, 16 Va.App. 300, 304 (1993)). "When 'credibility issues have been resolved by the [fact finder] in favor of the Commonwealth, those findings will not be disturbed on appeal unless plainly wrong.'" Towler v. Commonwealth, 59 Va.App. 284, 291 (2011) (quoting Corvin v. Commonwealth, 13 Va.App. 296, 299 (1991)). And we accept "the trial court's determination of the credibility of witness testimony unless, 'as a matter of law, the testimony is inherently incredible.'"
"Determining the credibility of witnesses . . . is within the exclusive province of the jury, which has the unique opportunity to observe the demeanor of the witnesses as they testify." Dalton v. Commonwealth, 64 Va.App. 512, 525 (2015) (alteration in original) (quoting Lea v. Commonwealth, 16 Va.App. 300, 304 (1993)). "The living record contains many guideposts to the truth which are not in the printed record; not having seen them ourselves, we should give great weight to the conclusions of those who have seen and heard them."