Shoplifting (Grand Theft) Conviction Reversed

surveillance-cam-225x300Not all cops are created equal.  I have a friend, who’s a cop (hard to believe, I know), and he rarely arrests folks on drug charges.  His form of justice involves escorting the citizen to the nearest toilet and flushing the drugs into our water system. Mercy is out there, believe it or not.  But, if you’re reading this, my guess is that you weren’t so lucky.

Now, not everyone involved in law enforcement has as much mercy as my cop friend.  Loss prevention officers, for example, seem to have the least mercy in their souls of anyone in law enforcement (yes, I’m assuming things like “mercy” and “souls” actually exist, a philosophical debate for another day–but such a debate will be over the strenuous objection of my web people, who complain that I get off the legal track too easily, and thus make their optimization efforts more difficult. Oh well).

Why are loss prevention officers so eager to stick it to shoplifters? . First, Dr. Phil would probably say that loss prevention folks somehow missed their calling as true blue police officers.  In other words, they have a chip on their shoulders.  Now, a chip on your shoulder can be a good thing, look at that quarterback that was drafted #199 in the sixth round back in 2000–he’s doing ok (I’m not a Patriots fan, but you have to love a sixth round pick beating the crap out of the 198 players picked above him.  Anybody who’s had that awkward feeling of being picked next to last in gym class knows what I’m talking about).   For whatever reason, shoplifting patrol people decided that the 12 weeks of police academy was just too academically rigorous, and this tends to make them a bit more harsh than the legitimate police officers they call once they’ve caught a shoplifter.  Case in point: I had a client who was detained for shoplifting, and she really really needed to use the restroom.  She begged loss prevention for a bathroom break, but this only made loss prevention delay further–to the point where she urinated all over herself.  Loss prevention laughed about it, and invited comrades into the back room for an extended gawking session.  Talk about wanting to die!  As a defense attorney, you need only see this sort of thing a few times to start questioning what went wrong.

As I said,  loss prevention officers may not have the mental prowess required to complete 12 weeks of police academy, but I want to side track here to assure you I’m not on some elitist college degree rant.  Yes, the previous sentence comes off a bit snobbish, but I’m all for learning a trade–instead of going to college.  I used to be a fan of college, but times have changed.   Many college degrees amount to nothing more than “participation trophies”.  Back in the day, a college degree acted as a type of “currency”, but the currency of today involves ideas and skills–most of which you cannot learn in college. It would be nice if we brought back to the days of apprenticeship, where young skulls of mush could learn from a master.  For example, take two 23 year old kids.  One kid has an MBA from an Ivy League school, plus $100,000 in student loans.  The next kid studied as an apprentice under a master plumber [insert here any trade you like].  I bet the kid who’s studied plumbing has more skills than the MBA grad (yes, I know, the hypocrisy of it all, I too have a masters degree, but times were different back in 1993.  There are at least two hypocritical statements in this one article, which is an average pace for me).   Kids today want to earn money, but none of them want to learn a trade like plumbing that can earn a better living for them than their college bound friends saddled with all kinds of debt.   I have a plumber friend that makes more money than 99% of the attorneys out there (Full Disclosure: my plumber friend has turned his plumbing skills into a plumbing corporation for major hotels/condo projects throughout the US, so he doesn’t snake clogged drains like he used to…).

Alright, I’m way off track.  Let’s talk about a shoplifting charge involving goods worth more than $300.  We call this grand theft (under $300 we call Petit Theft).

How do you overturn a grand theft conviction? One way is to prevent the prosecution from admitting evidence as to the value of the goods.  Easy breezy, right?

Well, evidence is a boring topic. And, we defense attorneys can get awfully nit picky about evidence.  After all,  its only a slight exaggeration to say that our evidence code is what separates us from the chimpanzees.  Studies have shown that chimps in the wild convict their fellow chimps without much evidence, and their convictions are in the form of chasing them off, or beating them up (old school forms of conviction, but punishment nonetheless).  I learned this by watching Nat Geo, but I don’t have the stomach to watch the lion catch his dinner.  Circle of life, I suppose, but I’m always rooting for Bambi to somehow escape.

Our case for today is a grand theft from Home Depot.  The Home Depot “shopper” was Ms. Coates, and she was caught putting over $300 worth of items into her purse.  Coates v. State, 2017 Fla.App.LEXIS 6176 (Fla. 4th DCA May 3, 2017).  The goods placed into her purse exceeded $300 in value, so that’s why we’re dealing with a felony grand theft instead of a petit theft.   Ms. Coates went to trial, and the jury found her guilty of grand theft.

Lucky for Ms. Coates, when the prosecutor tried to prove that the items were valued at more than $300, they did something wrong. And, the judge did something wrong by allowing them to do it.  Here’s what happened.

Every grand theft shoplifting case begins with a loss prevention officer (asset protection officer, security officer, etc.) watching a “shopper” conceal some items. Next comes the “excuse me ma’am”, then a felony grand theft arrest soon follows.

Now, grand theft is not easy to prove, and Ms. Coates’ case is a prime example. Sure, Home Depot had a witness testify that things were stolen–but that only gets you a misdemeanor petit theft. Ms. Coates went to trial in the Circuit Court on a felony grand theft. To get a felony conviction, the prosecutor has to prove the value of the goods exceeded $300 (“value” is a topic for another day, but you can find a discussion of such here).

The Home Depot “asset protection manager” made a list of the stolen items.  This master list had a grand total over $300.  Voila, they’ve proven a felony, right?  No, not yet.  You see, the prosecutor admitted this list to the jury as a certified “business record”.  At the risk of boring you more than I already have, admitting evidence as a “business record” takes all the fun out of a trial, because the document is automatically admitted without giving the defense much of a chance to cross examine the numbers contained on the business record.

For example, let’s say the loss prevention officer’s business records indicate a total value of $345.00, yet you know the items taken were on sale, 20% off.  Will there be a witness who has enough knowledge to discuss these sale prices?  Heck no, because the “business record” will be admitted via some records custodian that barely knows that Home Depot sells tools.  Technically, Home Depot sells idiots like me on the idea that I can “do it myself”.  I can’t do it myself.  I’ve tried.  And, I’m probably going to hurt myself or someone I love with all the fancy tools I’ve bought trying to do things myself.  That being said, remember that we want to show the shoplifted items were were 20% off, bringing the “value” down to $276.00.   If we create a little doubt as to value, we’ve got ourselves a misdemeanor.

Back to Ms. Coates. The prosecutor sought to admit a “price list” into evidence, so that they could prove this shoplifting was a felony grand theft.  Ms. Coates’ defense attorney objected to the list coming into evidence (as a business records exception to the hearsay rule, for those who want the legal terminology).

The judge overruled the defense attorney and let the price list into evidence.  That’s why this case was overturned.  The reason being, Home Depot’s list of stolen items was generated only a few days before trial at the request of the prosecutor (key information that I held back from you, sorry).  The list was not made at the time of the offense, it was made at the request of the prosecutor four days before trial.

Here’s the court’s summary, finding it odd that “the state did not seek to introduce a printout of the information entered by the security guard on the day of the incident. [this would have been admissible!] Instead, it offered a list cobbled together by the asset protection manager several days before trial at the state’s request [big no-no], from the information entered by the security guard on the day of the incident. . . The list was thus created ‘exclusively for the purpose of the instant prosecution’. As such, it lacked the indicia of reliability and trustworthiness required of an exhibit seeking admission as a business record. . . We therefore reverse appellant’s conviction and sentence and remand for a new trial.” Id. [I added the stuff in italics]