Monday, June 18, 2012

Theft, the Computer and the Weight of the Evidence

When I hear someone refer to “computer theft,” I usually think they’re referring to someone who used a computer to obtain property or services.  Georgia Code § 16-9-93(a), for example, defines “computer theft” as (i) using a computer or computer network (ii) knowing the use is unauthorized and (iii) intending to take another’s property or use fraud to obtain another’s property.  Here, the computer is merely an instrument that is used to commit fraud.  Most state statutes that deal with computers and theft tend to take this approach. 

Rhode Island, though, has a statute that makes it a crime to, among other things, steal a computer or computer software.  General Laws of Rhode Island § 11-52-4.  The case this post examines deals with this type of computer theft, though it was not specifically prosecuted as “computer theft.”

Albert P. McLeod was charged with theft of property valued at more than $500 and less than $5,000, “a fifth degree felony,” in violation of Ohio Revised Code § 2913.02(A)(1), which makes it a crime “knowingly” and “with purpose to deprive the owner of property”, to obtain or exert control over . . . the property”.  State v. McLeod, 2012 WL 1929337 (Ohio Court of Appeals 2012). 

The case went to trial and the jury found him guilty; after the judge sentenced him to 25 days in jail, McLeod appealed. State v. McLeod, supra.  On appeal, McLeod argued that the state did not present sufficient evidence to sustain the conviction and/or that the conviction was “against the manifest weight of the evidence.”  State v. McLeod, supra. 

The only witnesses at the trial were Dean Holtsclaw, manager of a Wal-Mart, and McLeod.  State v. McLeod, supra.  He testified that, on January 1, 2007, he saw

[McLeod] select a computer and place it in a shopping cart. . . .  Shortly thereafter, Holtsclaw saw another man place another computer in a shopping cart. . . . The other man paid for his computer at the electronics checkout. . . . [McLeod], however, exited the store without purchasing anything. . . . [He] then came back into the store and retrieved the computer he had left in the cart. . . .

Holtsclaw observed [McLeod]  the entire time. . . . . [He] went to the front checkout and purchased one small item. . . . [McLeod]  then tried to leave the store through the grocery exit with the computer. . . . Holtsclaw stated that at no time did [McLeod] pay for the computer. . . .

[McLeod] presented the greeter with a receipt for a computer from the electronics checkout from 20 minutes prior. . . . Holtsclaw then called the police.

State v. McLeod, supra. 

Holtsclaw testified that “only one model” of the computer McLeod had in his possession “was legitimately sold in Wal–Mart that day”, and it “was purchased through the electronics checkout.”  State v. McLeod, supra.  He also testified as to what the Wal-Mart video surveillance system had recorded that day:

It showed [McLeod] entered Wal–Mart with the other man at 1:25 p.m. . . . At 1:28 p.m., [McLeod]  selected a computer and placed it in his cart. . . . At 1:29 p.m., the other man selected a computer. . . . At 1:33 p.m., [McLeod]  exited the store. . . . At 1:37 p.m., the other man paid for his computer. . . .

It was the only computer of that model sold on that day. . . . [McLeod]  was still outside of the store at this point. . . . At 1:45 p.m., the other man exited the store with his purchased computer. . . . At 1:50 p.m., [McLeod] re-entered the store. . . .

At 1:56 p.m., [McLeod] went through a front checkout with the computer and paid only for one item valued at $5.35. . . . At 1:57 p.m., [McLeod] attempted to leave the store with the computer.

State v. McLeod, supra. 

The receipt McLeod presented as proof he bought the computer was dated January 1, 2007, and listed the time of sale as 1:37 p.m. State v. McLeod, supra. As noted above, it came from the register in the electronics department. State v. McLeod, supra.  The value of the computer was $598. State v. McLeod, supra.  And, on cross-examination, Holtsclaw “admitted no one saw [McLeod] and the other man exchange any receipts or paperwork.”  State v. McLeod, supra. 

McLeod, on the other hand, testified that “on the day in question” he went to Wal-Mart to

buy a computer for his granddaughter. . . . He . . . was alone. . . .  [McLeod] testified that he realized he forgot his wallet and went back out to his car to retrieve it. . . . [He] then went back into the store where he purchased the computer. . . .

He next went to exit the store when he realized he forgot to buy something. . . . He . . . went back and bought a hair trimmer. . . . In the meantime, an employee asked to see his receipt, which he showed her. . . . He stated that she placed an `X’ on the receipt. . . .

Then as he went to exit the store with the computer and the hair trimmer, the security guard detained him. . . . [McLeod] stated that he had the computer with him from the time he purchased it until he tried to leave the store. . . .

He denied stealing the computer or working with anyone else to steal the computer. . . .

State v. McLeod, supra. 

McLeod’s first argument was that the evidence was not sufficient to support the verdict because “the state failed to prove that he acted `knowingly.’” “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature.” R.C. 2901 .22(B). The Court of Appeals noted that, under Ohio Revised Code § 2901.22(B), a person acts “knowingly” when “he is aware that his conduct will probably cause a certain result of will probably be of a certain nature.” 

The Court of Appeals then examined the evidence to “determine if it was sufficient to convict” McLeod of the crime charged.  State v. McLeod, supra.  It found that the evidence outlined above,

when viewed in a light most favorable to the prosecution, establishes that [McLeod], with the purpose to deprive Wal–Mart of the computer, knowingly exerted control over the computer without Wal–Mart's consent. Thus, [his] conviction is supported by sufficient evidence.

State v. McLeod, supra.  So, McLeod lost on his first argument.

His second argument, as noted above, was that the jury’s verdict was “against the manifest weight of the evidence.”  State v. McLeod, supra.  He based his

argument, in part, on the fact that there was no testimony that he physically removed the computer from Wal–Mart without paying for it. He also relie[d] on the fact that there was no video evidence that he conspired with the other man in an effort to steal the computer. And he relie[d] on his own testimony that he paid for the computer and showed a receipt to prove it.

State v. McLeod, supra. 

The Court of Appeals then outlined the standard for addressing an against the manifest weight of the evidence issue:

In determining whether a verdict is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. [State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (Ohio Supreme Court 1997).]

`Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.”’ [State v. Thompkins, supra (emphasis in the original.] In making its determination, a reviewing court is not required to view the evidence in a light most favorable to the prosecution but may consider and weigh all of the evidence produced at trial.

State v. McLeod, supra. 

The court also noted that “granting a new trial is only appropriate in extraordinary cases where the evidence weighs heavily against the conviction” because

determinations of witness credibility, conflicting testimony, and evidence weight are primarily for the trier of the facts who sits in the best position to judge the weight of the evidence and the witnesses' credibility by observing their gestures, voice inflections, and demeanor. 

State v. McLeod, supra.  In other words, the jury is the best judge of the evidence.

The Court of Appeals then explained that determining whether the verdict in this case was against the manifest weight of the evidence, it had to consider Holtsclaw's testimony and that of McLeod. State v. McLeod, supra.  It noted that

[t]his case turned on whose testimony the jury found to be more credible. Given their guilty verdict, the jury found Holtsclaw to be the more credible witness. Holtsclaw's testimony was supported by the video surveillance photos that showed where appellant and the other man were and at what times.

His testimony was further bolstered by the fact that the only model of the particular computer that [McLeod] tried to leave the store with that was sold at Wal–Mart that day was purchased when [McLeod] was not in the store and the computer he had selected sat in an unattended shopping cart.

State v. McLeod, supra. 

The Court of Appeals then found that

[i]n this case, the jury simply did not believe [McLeod’s] testimony that he paid for the computer. We will not second-guess the jury's credibility determination. The jury's verdict was not against the manifest weight of the evidence.

State v. McLeod, supra. 

It therefore affirmed McLeod’s conviction and sentence.  State v. McLeod, supra. 

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