How To Reduce a Grand Theft to a Petit Theft (and, How to Compute the Average Net Worth of a Dairy Queen Costumer)

IMG_5029-e1529527687928-300x73Everybody who leaves their hometown has left a few favorite restaurants behind.  I left St. Louis almost three decades ago, but I still miss Imo’s Pizza and Ted Drews Frozen Custard.  Every time I visit my hometown, I’m having Imo’s Pizza and Ted Drews (in that order, and probably White Castle later that night).

Unfortunately, Florida doesn’t have a Ted Drews (there’s only one, and as I said, it’s a 1,000 miles away).   The good news is, I have found a substitute.  I really really like Dairy Queen’s Blizzard.  Blizzards are the next best thing.  For those of you unfamiliar with the Dairy Queen menu, a Blizzard is soft serve ice cream with sweets mixed in.  Depending upon my mood, I may mix in cookie dough and peanut butter cups, or bananas, chocolate, and peanut butter.  It’s just tough to say.

Full disclosure:  I have not been compensated in any way to endorse DQ’s blizzard, Ted Drews, or Imo’s.  If I had any sort of inkling that mentioning products would get me some freebies, I would launch into a rant about my love of Porsche and various all-inclusive resorts.

Anyway, back to Dairy Queen.

What do you think the average net worth is of the folks eating at DQ?

Let’s think about how many customers the average DQ can seat.  Maybe 30 or 40 dessert goers, max?  Dairy Queens are typically small.   Could you, possibly, get a good feel for the net worth of the customers inside without ever stepping foot inside?

I have a friend looking for an apartment, and he won’t even tour an apartment inside if the complex doesn’t pass his “parking lot test.”  In other words, if there are crappy cars parked everywhere–he doesn’t want to live there.  Doesn’t matter what the place looks like on the inside.  Same goes for a DQ parking lot, you may be able to gauge the net worth of the folks inside just by looking at the parking lot, right?

Wrong. It is really hard to establish net worth based upon car alone.  After all, the average income of a BMW owner is the price of the BMW.  So, we’re not going to be able to establish an average net worth based upon the parking lot (does knowing the average income of a BMW owner really tell us anything meaningful? Hold that thought).

The good news is, we can still establish the net worth of Dairy Queen customers at a particular store, on a particular day.  Let’s take a look at a Dairy Queen in Nebraska, on Monday, June 11th, 2018. 

This particular DQ made the news that day, and you can google this for yourself if you’re really bored.  In this DQ, there’s a dude sitting in a booth minding his own business,when he overhears a voice that sounds like someone famous.  Someone on a show called Shark Tank.

Yes, sitting in the booth behind him was billionaire Mark Cuban.

Ok, now we can get closer to establishing the net worth of the customers at this particular Dairy Queen, on this particular day.  At least we know what Mark Cuban is worth.

I’ve done the math for you.

The average net worth of the customers at this DQ on June 11th, 2018, is $92,500,000.  

Here’s the math: Mark Cuban’s net worth is $3.7 billion.  Billion with a capital “B”.  This particular Dairy Queen, at full capacity, seats 40 people (my humble estimate).  If we assume that the other 39 customers have zero net worth–not a snooty or condescending assumption, just mathematically convenient–then you simply divide 3.7 billion by 40 people to get 92.5 million per person.

Yes, the average Dairy Queen customer that day had a huge net worth.  But, does this number really tell you anything about the net worth of the other 39 customers?  Can you say anything intelligent about the net worth of the other customers on June 11th?

This can’t be right, can it?

No.  My average is not correct.  My number is way off.

You see, Mark Cuban was having lunch with Warren Buffett.  So, we need to adjust the math because my assumption about the net worth of the other DQ customers was way off.

Warren Buffett’s net worth is $82,200,000,000.   Yes, that’s 82 billion.

So, if we want to “know” the average net worth of the 40 patrons at this Omaha DQ on June 11th, we must add Mark Cuban’s 3.7 billion net worth to Buffett’s 82.2 billion, then divide by the 40 customers at Dairy Queen on that day.

When Warren Buffett enters the equation, the average net worth of a Dairy Queen customer that day is $2.1 billion.  You heard me.  The average net worth of each of those 40 customers was over a billion dollars.

And this brings us to the point of all of this: how helpful are “averages”?

Does knowing the exact net worth of these customers tell you anything meaningful about any one of them? (Yes, this was a very long example of the “Bill Gates walks into a bar” routine, sorry if you’ve heard it all before!)

It’s not that the numbers lie.  It’s just that some numbers are meaningless.  Averages are often meaningless.  We live in a sea of data, but is it useful?

For our purposes, how does our court system sort out useful testimony, from testimony that is meaningless?  Well, we have rules.  Rules, and more rules.  One rule in particular, the hearsay rule, makes it difficult to obtain meaningful numbers in a criminal case.

A prime example of this struggle to create meaningful data involves proving the value and “worth” of items in grand theft and shoplifting cases.  The whole idea behind a grand theft is that the stolen items are “worth” more than $300.  But, how do you really know what something is “worth?”

The recent case of D.J.S. v. State  provides a good example of this.  2018 Fla.App.LEXIS 3585 (Fla. 2d DCA 2018) D.J.S. was convicted of grand theft for stealing three bottles of liquor, a speaker, and a watch.   The homeowner claimed that his speaker was worth $135, his watch was worth $64, and the three bottles of liquor bring the total worth of the stolen items above $300.  Once the State has proven that  stolen items are worth more than $300–they have proven a grand theft.  If they can only prove a value of $299, they’ve got themselves a petit theft.  Grand theft is a felony.  Petit theft is a misdemeanor.

Big difference.

To prove that the items were worth more than $300, the prosecutor had the homeowner testify that he “went online to eBay or something” to determine the items value.  Naturally, D.J.S.’s defense attorney objected, arguing that such testimony is hearsay.  The trial judge didn’t think it was hearsay, and permitted the testimony to establish value greater than $300.

The appellate court disagreed.

The homeowner’s testimony was, in fact, hearsay.  The homeowner cannot testify as to what anyone told him.  Or, what eBay told him.  That is hearsay.  You can only testify about what you know, not what someone told you.  And, because “this was the sole evidence presented as to value, without it the State failed to present competent substantial evidence of that element of the grand theft allegation.” id at 2.

The appeals court threw out the felony grand theft conviction, and reduced the crime to a misdemeanor petit theft.  As a general rule, “catalog prices alone are insufficient to establish a sufficient predicate.” Gonzalez v. State40 So. 3d 86, 89 (Fla. 4th DCA 2010).

After seeing D.J.S.’s grand theft case because you cannot establish value via eBay or catalogs, you may be wondering what the heck our court system expects by way of proof?

The court in Phillips v. State put it this way:

“…we recognize that it was practically impossible for the victim to establish the restitution amount [of the stolen items] without relying on hearsay evidence.  As the victim conceded, she did not purchase any of the items and, for most of the items, had no first-hand knowledge of their purchase date, original value, or quality.  Therefore, in her good-faith effort to establish the value of the items, she relied on her memory of the items’ appearance, her understanding of the quality, and her ability to find similar items on the internet.  She went so far as to visit multiple websites in order to determine an average price for the items.

The fact that it was practically impossible for the victim to establish the restitution amount without relying on hearsay evidence appears to have caused an unjust result for the victim, because she and the state appear to have no other means by which to prove the restitution amount.”  id. at 705.