Retail Fraud, the Laptops and the Security Footage

After a jury convicted Marvin Lavern Chandler of first-degree retail fraud in violation of Michigan Compiled Laws § 750.356c and the trial judge sentenced him, as “a fourth-habitual offender [under Michigan Compiled Laws] § 769.12, to 28 months to 20 years' imprisonment.”  People v. Chandler, 2015 WL 1276914 (Court of Appeals of Michigan 2015).  Section 750.356c defines first-degree retail fraud as follows:

(1) A person who does any of the following in a store or in its immediate vicinity is guilty of retail fraud in the first degree, a felony punishable by imprisonment for not more than 5 years or a fine of not more than $10,000.00 or 3 times the value of the difference in price, property stolen, or money or property obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine:

(a) While a store is open to the public, alters, transfers, removes and replaces, conceals, or otherwise misrepresents the price at which property is offered for sale, with the intent not to pay for the property or to pay less than the price at which the property is offered for sale, if the resulting difference in price is $1,000.00 or more.

(b) While a store is open to the public, steals property of the store that is offered for sale at a price of $1,000.00 or more.

(c) With intent to defraud, obtains or attempts to obtain money or property from the store as a refund or exchange for property that was not paid for and belongs to the store, if the amount of money or the value of the property obtained or attempted to be obtained is$1,000.00 or more.

(2) A person who violates section 356d(1) and who has 1 or more prior convictions for committing or attempting to commit an offense under this section . . . is guilty of retail fraud in the first degree. . . .

The retail fraud offense outlined above is a type of theft and, as Wikipedia explains, the

actus reus of theft is usually defined as an unauthorized taking, keeping or using of another's property which must be accompanied by . . . the intent to permanently deprive the owner or the person with rightful possession of that property or its use.

For example, if X goes to a restaurant and, by mistake, takes Y's scarf instead of her own, she has physically deprived Y of the use of the property (which is the actus reus) but the mistake prevents X from forming the mens rea (i.e., because she believes that she is the owner, she is not dishonest and does not intend to deprive the `owner’ of it) so no crime has been committed. . . .

That brings us back to the Chandler case.  The Court of Appeals begins the opinion in which it rules on Chandler’s appeal by explaining that his conviction arose

out of the theft of two laptop computers from a store on September 4, 2012. Video footage and still images captured by the store's closed-circuit television security system revealed that [Chandler] entered the store's electronics department, waited until the sales associates were not looking, promptly removed the security devices from the two laptops in question, walked out of the electronics department carrying the laptops, and then proceeded to the toy department with the laptops in tow.

When [he] reached the end of a display rack in the toy department with the laptops in his hands, [Chandler] moved behind the rack and was out of the view of the security cameras for approximately 15 seconds. After [he] emerged from behind the display rack and entered another aisle, a security camera was able to regain surveillance of his movements. At this point, however, [Chandler] was no longer holding the laptops in his hands and the laptops were not openly visible. But the video footage did show [him] adjusting and holding his shirt and shorts.

[Chandler] then walked directly to the front of the store and exited the store without paying for any items. As [he] left the store, the security footage revealed a rectangular outline underneath his shirt. The store's loss prevention officer testified that in `[t]he images that we got as [Chandler] was leaving the building[,] you can clearly . . . [see] that there is something underneath the shirt in the shape of what would be the size of the laptops.’ This testimony was corroborated by the images from the security cameras.

Additionally, as [Chandler] left the store, he is seen awkwardly holding his arms up to the side of his body instead of letting his arms hang freely at his side; he clearly appears to be trying to contain something under his shirt with his elbows. Approximately 20 minutes after [he] exited the store, the loss prevention officer checked the toy department and aisles that [Chandler] had walked through to see if the laptops had been left in these areas, but she could not locate the laptops.

Afterwards, the police circulated photographs developed from the video footage, and multiple tips led to [Chandler’s] apprehension. The police obtained a warrant to search [his] apartment, and the shorts [Chandler] is seen wearing in the videotape were discovered, but the laptops were never recovered.

People v. Chandler, supra.

Chandler made two arguments on appeal, the first of which was that there was

insufficient evidence to support his conviction for first-degree retail fraud. More specifically, [he] argues that `the prosecutor failed to prove [that] defendant took property from the store with the intent to permanently deprive the store thereof.’

As [Chandler] develops his argument, it is clear that he is not directly challenging the `intent to permanently deprive’ element of the crime; rather, he is contending that the prosecution `failed to present any evidence that laptops had been taken from the store by [Chandler].’ [He] emphasizes that the laptops were not found in his apartment. He suggests that perhaps the laptops remained in the store and were not adequately searched for after his departure.

With respect to the prosecution's theory that he concealed the laptops under his shirt and left the store with them, [Chandler] argues that there was no evidence that he indeed hid them under his shirt. The substance of [his] argument is focused on the claim that there was insufficient evidence of a theft having actually occurred.

People v. Chandler, supra.

The court goes on to explain that

[w]e review de novo the issue regarding whether there was sufficient evidence to sustain a conviction. People v. Lueth, 253 Mich. App 670, 660 NW2d 322 (Michigan Court of Appeals 2002). In reviewing the sufficiency of the evidence, this Court must view the evidence -- whether direct or circumstantial -- in a light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v. Reese, 491 Mich. 127, 815 NW2d 85 (Michigan Supreme Court 2012); People v. Hardiman, 466 Mich. 417, 646 NW2d 158 (Michigan Supreme Court 2002).

A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellate court must not interfere with the jury's role in assessing the weight of the evidence and the credibility of the witnesses.  People v. Wolfe, 440 Mich. 508, 489 NW2d 748 (Michigan Supreme Court 1992). Circumstantial evidence and the reasonable inferences that arise from such evidence can constitute satisfactory proof of the elements of the crime. People v. Carines, 460 Mich. 750, 597 NW2d 130 (Michigan Supreme Court 1999). The prosecution need not negate every reasonable theory of innocence, but need only prove the elements of the crime in the face of whatever contradictory evidence is provided by the defendant. People v. Nowack, 462 Mich. 392, 614 NW2d 78 (Michigan Supreme Court 2000). We resolve all conflicts in the evidence in favor of the prosecution. People v. Kanaan, 278 Mich.App 594, 751 NW2d 57 (Michigan Supreme Court 2008).

People v. Chandler, supra.

The court began its analysis of Chandler’s appeal by explaining that, as noted above, Michigan Compiled Laws § 750.356c(1) defines first-degree retail fraud as the actions of someone who, “in a store or in its immediate vicinity” and while the “store is open to the public, steals property of the store that is offered for sale at a price of $1,000.00 or more.”  People v. Chandler, supra.  It then went on to note that

[w]ith respect to first-degree retail fraud, the prosecution must prove beyond a reasonable doubt that: (1) `the defendant took some property that the store offered for sale;’ (2) `the defendant moved the property,’ with any movement being sufficient regardless of `whether the defendant actually got the property past the cashier or out of the store;’ (3) `the defendant intended to steal the property[,]’ meaning that he or she `intended to permanently take the property from the store without the store's consent;’ (4) the charged act occurred `while the store was open to the public;’ and (5) the price of the property was $1,000 or more. . . .

People v. Chandler, supra. 

The Court of Appeals then found that,

[h]ere, taking into consideration the direct and circumstantial evidence, and the reasonable inferences arising therefrom, and viewing the evidence in a light most favorable to the prosecution, there was more than sufficient evidence establishing that [Chandler] surreptitiously carried the laptops out of the store without paying for them and that he did so with the intent to permanently deprive the store of the property. 

This supporting evidence consisted of: the removal of the security devices attached to the laptops while store personnel were not looking; the visible handling of the laptops by [Chandler] before entering the toy department; [his] adjustment of his shirt and shorts after the laptops were no longer openly visible following the momentary break in the security footage; the images of [him] exiting the store with a laptop-shaped outline protruding from his shirt; the awkward movement or positioning of [his] arms as he left the store, reflecting an attempt to contain something under his shirt; and the subsequent failure to locate the laptops in the store. Reversal is unwarranted.

People v. Chandler, supra. 

Chandler also argued, on appeal, that “`the trial court improperly admitted prior-bad-acts evidence, [Michigan Rules of Evidence [404(b)], regarding an act of retail fraud committed by defendant in 2001, in which he concealed a nail gun under his shirt and left a hardware store without paying for the tool.’” People v. Chandler, supra.  Prior bad acts evidence, also known as character evidence, is admissible, under both state and federal evidence law, for certain purposes but is not admissible for others.  As Wikipedia explains, in the United States

character evidence is inadmissible in a criminal trial if first offered by the prosecution as circumstantial evidence to show that a defendant is likely to have committed the crime with which he or she is charged -- the prosecution may not, in other words, initiate character evidence that shows defendant's propensity to commit a crime. 

In other words, the prosecution cannot introduce evidence establishing that a defendant – Joe Brown, say – robbed a liquor store two years ago and use it to “prove” that Brown robbed a liquor store last week.  The point is that, just because someone did something at an earlier point in his life, that does not mean he did something similar more recently.   Courts often describe this as prohibiting using someone’s prior conduct to prove he or she “has a propensity” to commit certain bad acts.

So, under rules like Michigan Rule of Evidence 404(b), the prosecution cannot use “prior bad acts” to claim the defendant “has done bad things” and, therefore, is responsible for the bad act(s) at issue in a current prosecution.

But, as Wikipedia also notes, the prosecution can admit “[e]vidence of other crimes, wrongs or acts . . . for `non-character purposes,’” such as proving the defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” The jury or the judge in a bench trial can, but is not required to, use the latter type of evidence to infer that the defendant committed the crime with which he/she is charged because there are commonalities in terms of the motive for the crime, opportunity to commit it, planning, etc.

Here, the Michigan Court of Appeals found that Chandler’s  

second and final argument on appeal is that the trial court improperly admitted prior-bad-acts evidence, [Michigan Rule of Evidence] 404(b), regarding an act of retail fraud committed by [Chandler] in 2001, in which he concealed a nail gun under his shirt and left a hardware store without paying for the tool.

First, assuming any error in the admission of this evidence, it was harmless, as defendant has not shown the requisite prejudice, i.e., that it is more probable than not that defendant would have been acquitted absent the presumed error. [Michigan Compiled Law] 769.26; People v. Lukity, 460 Mich. 484, 596 NW2d 607 (Michigan Supreme Court 1999). . . . [T]he evidence of [Chandler’s] guilt was very strong, and admission of the 2001 retail fraud event was ultimately harmless.

Moreover, the trial court did not err in admitting evidence regarding the 2001 act of retail fraud. The bad-acts evidence was admitted for a proper purpose, i.e., to show a common scheme, plan, or system, and not to support a general propensity theory. [Michigan Rule of Evidence] 404(b)(1); People v. Sabin, 463 Mich. 43, 614 NW2d 888 (Michigan Supreme Court 2000).

Further, the evidence was relevant to show that, contrary to [Chandler’s] theory of the case, the laptops were actually removed from the store by way of [his] hiding them under his shirt, as the current and former acts were sufficiently similar to support an inference that they manifested a common plan, scheme, or system. People v. Sabin, supra; [Michigan Rules of Evidence] 401 and 402. And the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, . . . considering that there was little danger that the evidence would be given undue or preemptive weight by the jury and that its admission was not inequitable, People v. Mills, 450 Mich. 61, 537 NW2d 909 (Michigan Supreme Court 1995). Moreover, the trial court instructed the jury not to consider the evidence for purposes of propensity, thereby alleviating any danger of unfair prejudice. prejudice. People v. Roscoe, 303 Mich. App 633, 846 NW2d 402 (Michigan Court of Appeals 2014).

People v. Chandler, supra. 

The Court of Appeals therefore affirmed Chandler’s conviction and sentence. People v. Chandler, supra.