The Juvenile, Home Probation and the Probation Condition

This post examines a recent decision from the Court of Appeal – First District, California: In re Carlos H., 2017 WL 695953 (2017). The opinion begins by explaining that

Carlos was initially declared a ward January 2013 after he admitted two petitions alleging a robbery and a misdemeanor criminal threat. Since then, Carlos has been in and out of juvenile custody numerous times and admitted two criminal offenses. The underlying offenses in the present action were committed in late 2015 after Carlos had absconded from his most recent group home placement.

On January 6, 2016, a petition was filed alleging that Carlos possessed a concealable firearm on October 22, 2015 (Penal Code § 29610). On February 24, 2016, a petition was filed alleging that on December 9, 2015, Carlos possessed an assault weapon (§ 30605, subd. (a)) and that he had received a large capacity magazine (§ 32310, subd. (a)). Carlos admitted the concealable firearm charge as a misdemeanor and the assault weapon charge as a felony. The third charge was dismissed.

The disposition report prepared by the probation department states, `Reports indicates that minor is involved in Norteño gangs. The minor denies being a part of a gang, but admits that he associates with Norteño gang members from different areas.’

The court redeclared wardship and placed Carlos on probation subject to numerous probation conditions including warrantless searches, a geographic stay-away order, no contact with crime associates, no weapons, no gang involvement or insignias, drug/alcohol testing, counseling, job training, and a curfew. Carlos timely filed a notice of appeal.

In re Carlos H., supra.

In his appeal, Carlos H. challenged two of the probation conditions, one of which required him “to submit to warrantless searches of his electronic devices and provide passwords to his devices and social media accounts”. In re Carlos H., supra. This post only examines that issue.

The Court of Appeal began its analysis of that issue, and Carlos’ challenge to it, by explaining that

[t]he electronic search condition provides: `Any electronic and/or digital devices in your possession or under your custody or under your control may be searched at any time of the day or night, by any peace or probation officer, with or without a warrant or with or without reasonable or probable cause. Electronic and/or digital devices include but are not limited to cell phones, smartphones, iPads, computers, laptops and tablets. You are also ordered to provide any and all passwords to the devices upon request to any peace or probation officer.’ In addition, Carlos was ordered to `disclose passwords . . . for his social media accounts to probation officer[s] and law enforcement officers, police officer without reasonable or probable cause upon request.’

Carlos claims the electronics search condition (1) is unreasonable under People v. Lent (1975) 15 Cal.3d 481; (2) is precluded by the California Electronic Communications Privacy Act(ECPA) (§ 1546 et seq.); (3) violates his Fifth Amendment rights; and (4) is unconstitutionally overbroad.

In re Carlos H., supra.

The Court of Appeal took up each of Carlos’ arguments, in the order set out above. As to the decision in People v. Lent, it explained that

[i]nitially, we reject the argument that the search condition violates People v. Lent, supra, 15 Cal.3d 481. Under Lent, a probation condition is `invalid [if] it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.’  (Lent, p. 486; In re P.O. (2016) 246 Cal.App.4th 288, 294.) A condition is invalid only if all three prongs of Lent are met. (In re P.O., p. 294.)

We need not decide whether the condition meets the first and second prong of the Lent test, because the condition fails the third prong. The condition is reasonably related to preventing future criminality. The conditions of probation require that Carlos avoid known gang members and prohibit his display of gang insignia. Carlos is required to avoid contact with named participants in the crimes and prohibited from contacting them `by telephone, e-mail, voice mail, pager code, letter, any social media, Facebook, Twitter, Instagram or message through someone else.’ Accordingly, the electronics search condition reasonably relates to the effective monitoring of Carlos's compliance with the no contact and gang conditions. In addition, the disposition report contains descriptions of photographs of Carlos posing with weapons that were posted on his or others social media accounts. Because Carlos is properly prohibited as a condition of probation from possessing weapons, the condition also relates to the effective monitoring of Carlos's compliance with that condition.

In re Carlos H., supra.

The Court of Appeal also explained that

[n]or does the condition violate the ECPA. As relevant to the present case, the ECPA, effective January 1, 2016, prohibits a government entity from accessing device information through physical interaction or electronic communication with the device unless one of several statutory exceptions applies, including that the government entity has obtained a warrant or has obtained the consent of the possessor of the device. (§ 1546.1, subd. (a)(3), (c); Stats. 2015, ch. 651, § 1, eff. Jan. 1, 2016.)). Contrary to Carlos's argument, the plain language of section 1546.1 does not prohibit the court from requiring a probationer to allow a warrantless search of his or her electronic devices. As the Attorney General argues, `the statute nowhere provided that a law enforcement officer examining electronic device information by physical interaction or electronic communication with a device, pursuant to an otherwise valid probation or parole search condition would lack a possessor's `specific consent.’

In re Carlos H., supra.

The court then goes on to point out that

any ambiguity in that regard was conclusively resolved by the January 2017 amendment to section 1546.1, subdivision (c). The amendment, among other things, added additional exceptions to section 1546.1, subdivision (c), including subdivision (c)(10), which authorizes a government entity to access electronic device information by means of physical interaction or electronic communication with the device `if the device is seized from an authorized possessor of the device who is subject to an electronic device search as a clear and unambiguous condition of probation, mandatory supervision, or pretrial release.’ (Stats. 2016, ch. 541, § 3.5, eff. Jan. 1, 2017).) The amendment also added subdivision (c)(9), which authorizes a government entity to access electronic device information by means of physical interaction or electronic communication with the device `if the device is seized from an authorized possessor of the device who is serving a term of parole under the supervision of the Department of Corrections and Rehabilitation or a term of postrelease community supervision under the supervision of county probation.’

Contrary to Carlos's argument, subdivision (c)(10) applies to juvenile probation. The categories of adult offenders enumerated in subdivision (c)(9) do not limit the types of `probation’ governed by subdivision (c)(10).

Carlos also argues that the condition is invalid because the recent amendment `does not authorize a requirement to disclose passwords.’ But neither does the amendment or the statute prohibit this requirement. In all events, the requirement undoubtedly is necessary to enforce the government's right to gain access to electronic device information in those situations in which access is authorized.

In re Carlos H., supra.

The opinion goes on to address another argument Carlos made in his appeal:

Finally, Carlos argues that insofar as the amendment changes the law, it cannot be applied retroactively to save a probation condition that was illegal when imposed. We disagree, however, with Carlos's premise that the amendment changed the law. As set forth above, because the statute was ambiguous regarding whether a valid probation condition qualified as `consent’ under the statute, the amendment clarified that access pursuant to a valid search condition is permissible. (See In re J.C. (2016) 246 Cal.App.4th 1462, 1477, quoting Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243 [`‘‘An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act, where the amendment was adopted soon after the controversy arose concerning the proper interpretation of the statute. . . . [¶] If the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act—a formal change—rebutting the presumption of substantial change’’].)

In re Carlos H., supra.

The Court of Appeal then took up Carlos’ next argument, which was that

requiring him to produce his password and the contents of his email and social media accounts is compelling his testimony and therefore impermissible under the Fifth Amendment. We disagree. `”The Fifth Amendment to the United States Constitution states that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . .’ The high court has made clear that the meaning of this language cannot be divorced from the historical practices at which it was aimed, namely, the brutal inquisitorial methods of ‘”putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source.”’ [Citations.] . . . [T]he amendment prohibits the direct or derivative criminal use against an individual of ‘testimonial’ communications of an incriminatory nature, obtained from the person under official compulsion.’ (People v. Low (2010) 49 Cal.4th 372, 389–390.)

The search of Carlos's electronic devices, subject to a valid warrantless search condition, does not implicate his Fifth Amendment rights. It is a `settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege [against self-incrimination].’ (United States v. Hubbell (2000) 530 U.S. 27,35–36; accord Fisher v. United States (1976) 425 U.S. 391, 401 [`[T]he Fifth Amendment protects against “compelled self-incrimination, not the disclosure of private information”’.)

In re Carlos H., supra.

The court went on to explain that

[f]inally, Carlos argues that the electronics search condition is unconstitutionally overbroad `because it is not narrowly tailored to limit its impact on [his] privacy and free speech rights.’ When a probation condition imposes limitations on a person's constitutional rights, it `”must closely tailor those limitations to the purpose of the condition’”—that is, the probationer's reformation and rehabilitation— ‘to avoid being invalidated as unconstitutionally overbroad.’” (People v. Olguin (2008) 45 Cal.4th 375, 384.) Like other courts, we agree the electronics search condition implicates Carlos's constitutional privacy rights and is not narrowly tailored to promote his rehabilitation and the public's protection. (In re P.O., supra, 246 Cal. App.4 th at p. 298.) Here, the court did not tailor the condition by limiting the types of data (whether on an electronic device or accessible through an electronic device) that may be searched. Instead, the condition `permits review of all sorts of private information that is highly unlikely to shed any light on whether [the minor] is complying with the other conditions of his probation.’ (Ibid., citing People v. Appleton (2016) 245 Cal.App.4th 717, 725 [`[A] search of defendant's mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity. These could include, for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends.’].)

The minor's privacy interests may be infringed, but only to the extent the information searched is reasonably likely to yield evidence of gang activity, or other criminal activity and noncompliance with probation conditions. Accordingly, the electronic search condition must be modified to authorize only searches of Carlos's text messages, e-mail, telephone call history, voice mail, or other communication programs like FaceTime or Skype, and social media accounts. The search condition will not permit access to other accounts or data stored or accessed by minor on his cell phone.

In re Carlos H., supra.

Ultimately, the Court of Appeal held that the

electronic search condition of probation shall be modified to read: `Any electronic and/or digital devices in your possession or under your custody or under your control may be searched for text messages, email, telephone call history, voice mail, or other communication programs like FaceTime or Skype, and social media accounts at any time of the day or night, by any peace or probation officer, with or without a warrant or with or without reasonable or probable cause. Electronic and/or digital devices include but are not limited to cell phones, smartphones, iPads, computers, laptops and tablets. You are also ordered to provide any and all passwords to the devices and social media accounts upon request to any peace or probation officer.’

As so modified, the order of probation is affirmed.

In re Carlos H., supra. 

The Slingshot, the Facebook Post and “Threatening the President”

This post examines an opinion from the U.S. Court of Appeals for the Seventh Circuit: U.S. v. Dutcher, 2017 WL 1075048. The court begins the opinion by explaining that

[o]n June 30, 2015, Brian Dutcher announced on Facebook that he planned to assassinate President Obama. He then drove to La Crosse, Wisconsin, where the President was scheduled to speak on July 2. Once in La Crosse, Dutcher repeated his plan to several people: a security guard, the police, the Secret Service, a nurse, a doctor, and (again) the police and Secret Service together. No one was amused: Dutcher was charged with and convicted of two counts of threatening the President in violation of 18 U.S. Code § 871(a). On appeal, Dutcher complains about the sufficiency of the evidence and certain instructions the district court gave to the jury. We find no error, and so we affirm.

U.S. v. Dutcher, supra.

The Court of Appeals began its analysis of the argument Dutcher made on appeal by explaining that

[w]e evaluate a challenge to the sufficiency of the evidence de novo, construing the evidence `in the light most favorable to the government and ask[ing] whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ United States v. Love, 706 F.3d 832, 837 (7th Cir. 2013). We also take a fresh look at the question whether a disputed jury instruction fairly and accurately states the law; we will `reverse only if the instructions, taken as a whole, misled the jury.’ United States v. Lawrence, 788 F.3d 234, 245 (7th Cir. 2015).

President Obama was scheduled to give a speech at the University of Wisconsin–La Crosse on Thursday, July 2, 2015. On Tuesday, Dutcher posted this on his Facebook page: `thats [sic] it! Thursday I will be in La Crosse. hopefully I will get a clear shot at the pretend president. killing him is our CONSTITUTIONAL DUTY!’ Later posts reprised the theme. In one, Dutcher added that `I have been praying on [sic] going to D.C. for 3 months and now the usurper is coming HERE. . . . pray for me to succeed in my mission.’ The next morning (Wednesday) Dutcher carried out the first part of his plan—he drove the 45 miles from Tomah, where he lived, to La Crosse.

Things went downhill from there. Dutcher stopped by the La Crosse Public Library, where his acquaintance Travis Good worked as a security guard. Dutcher greeted Good and told him `I'm here to kill the President, the usurper, tomorrow at his speech.’ When Good replied that such statements were illegal, Dutcher simply said `[w]atch me’ and walked off. Good alerted his supervisor, who passed the word along to the police, who dispatched two investigators. The investigators found Dutcher nearby in his van and, after he confirmed his threat, they asked him to come to the station for Secret Service questioning. Dutcher agreed, exhibiting a demeanor one of the investigators would later recall as `mellow.’

U.S. v. Dutcher, supra.

The court goes on to explain what happened next:

[t]he description was apt. During his two-hour interview with the Secret Service, a remarkably candid Dutcher claimed that it was his biblical and constitutional duty to assassinate the President, boasted that he could kill a person with a slingshot (one was later found in his van, though Dutcher had no other weapons), informed the agents that he had also made threats on Facebook, and consented to a search of his account. After the interview Dutcher was detained overnight at a hospital for a mental health evaluation. See Wis. Stat. § 51.15. There he reiterated his violent intentions to both a nurse and a doctor. And he was not done yet. Dutcher was arrested the next day and repeated his threats during the ensuing interview. Despite all this, he was found competent for pretrial release—a finding he does not challenge on appeal.

U.S. v. Dutcher, supra.

The Court of Appeals concluded this section of its opinion by noting that

[b]ased on the initial Facebook post and the statement to Good, a grand jury indicted Dutcher on two counts of knowingly and willfully threatening the President in violation of 18 U.S. Code § 871(a). After a two-day trial, the district court instructed the jury, in relevant part, that it could find willfulness if the government proved Dutcher `either actually intended his statement to be a true threat, or that he knew that other people reasonably would view his statement as a true threat but he made the statement anyway.’ The jury found Dutcher guilty of both counts, and the district judge sentenced him to 36 months' imprisonment and three years of supervised release.

U.S. v. Dutcher, supra.

The court then took up the legal issue in the case, explaining, initially, that

section 871(a) criminalizes `knowingly and willfully’ making `any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States.’ The charged statement must be a `true threat,’ which has been defined for First Amendment purposes as `a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’ Virginiav. Black, 538 U.S. 343, 359 (2003). In United States v. Fuller, 387 F.3d 643, 646 (7th Cir. 2004), we held that a `true threat’ for purposes of section 871(a) is defined objectively. A communication, we wrote, `is a true threat if a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President.’ Id. (internal quotation marks omitted). Addressing a different statute, 18 U.S. Code § 875(c), which criminalized the transmission of any threat to kidnap or injure another, the Supreme Court held that the speaker must know that his communication contains a threat. Elonis v. United States, ––– U.S. ––––, 135 S.Ct. 2001,2009–11, 192 L.Ed.2d 1 (2015).

A true threat does not require that the speaker intend to carry it out, or even that she have the capacity to do so. Black, 538 U.S. at 360, 123 S.Ct. 1536 (First Amendment); United States v. Parr, 545 F.3d 491, 498 (7th Cir. 2008) (18 U.S.C. § 2332a, prohibiting a threat to use a weapon of mass destruction against a federal government building). The prohibition against threats protects against the fear they engender as well as the risk that they may be carried out. Black, 538 U.S. at 360, 123 S.Ct. 1536. Still, the scope of a true threat is ultimately quite circumscribed. Section 871(a) does not criminalize offensive jokes or political hyperbole—bad taste, in other words, is not a crime. Watts v. United States, 394 U.S. 705, 707–08, 89 S.Ct. 1399,22 L.Ed.2d 664 (1969); Fuller, 387 F.3d at 647.

U.S. v. Dutcher, supra.

The Court of Appeals then began its analysis of the issues and arguments in this case, explaining, initially, that

Dutcher insists that he was obviously unable to carry out his threats, and so they could have been nothing more than overheated rhetoric. He was certainly not trying to hide anything, and it is also undisputed that he had no ticket to the President's speech and was armed only with a slingshot (albeit a high-powered Wrist Rocket). But the significance of these facts was for the jury, not appellate review. More broadly, Dutcher is missing the point. He was charged with threatening the President under § 871(a), not with the separate crime of attempting to assassinate him under 18 U.S. Code. § 1751. His lack of capacity is relevant only insofar as it suggests that his threats were not genuine. Dutcher's emphasis on his chance of success also overlooks the fact that § 871(a) permits conviction for threats to `inflict bodily harm upon the President.’ Dutcher told investigators that he used his slingshot to hunt small animals, and (actually comparing himself to David) that he could kill a man with it. The jury was entitled, based on this evidence, to find that Dutcher was capable of injuring the President with his slingshot, and it could have convicted him on that basis.

Dutcher also suggests that no one took his statements seriously, and that this indicates that he did not intend them to be true threats. Security camera footage of Good's unruffled response to Dutcher's remarks supports this view—Good remains calm throughout the interaction and even wraps up a bit of computer work before heading off to report the incident. Yet the operative word in that sentence is `report.’ Calm or otherwise, Good took Dutcher seriously enough that he reported him around 30 seconds after their interaction. Moreover, his description was evidently alarming enough to cause his supervisor to contact the police. A reasonable juror could conclude Dutcher knowingly and willfully made a true threat.

Dutcher's contention that his Facebook post was not taken seriously since nobody who saw it informed the police (in fact, he got two `likes’) also falls short of undermining the jury's conclusion. Granted, his case is a bit different from Elonis, the Supreme Court's most recent word on true threats. Elonis's Facebook posts frightened their targets enough to prompt them to contact the authorities. Elonis, 135 S.Ct. at 2005–06. Nothing in Elonis, however, excludes the possibility of an unreported true threat. Other evidence indicates that some of Dutcher's readers took him seriously. Gregory Remen, for one, responded to the charged post by encouraging Dutcher to `[t]ry voting’ and asked `how will killing the pres change anything then? ?’ The apprehensive response to Dutcher's follow-up posts underscores the point—one reader urged him to `Stay calm my friend. Please!’ The jury was entitled to rely on these responses, along with Dutcher's later behavior, to find that the threats were genuine.

U.S. v. Dutcher, supra (emphasis in the original).

Since Dutcher was tried by a jury, the Court of Appeals went on to examine the instructions that were given to the jury, noting, initially, that the

jury instructions said that Dutcher acted `willfully’ if he `either actually intended his statement to be a true threat, or that he knew that other people reasonably would view his statement as a true threat but he made the statement anyway.’ Dutcher reads the latter clause to allow the jury to find willfulness so long as he made a statement `that other people reasonably would view . . . as a true threat’—that is, if it found only objective willfulness, without the subjective willfulness required by the statute under consideration in Elonis. But this argument overlooks the fact that the language he highlights was prefaced with the words `that he knew.’ The instructions did not permit the jury to find willful behavior simply because a listener `reasonably would view’ Dutcher's statement as a threat. Instead, it had to find that he made the statement despite knowing, subjectively, that the listener would see it that way. This is consistent with Elonis.

The worst we can say about the instruction is that the court might have given Dutcher an unwarranted break when it used the term `reasonably.’ As worded, the instruction indicated that Dutcher not only had to know that his listener would take his statement as a true threat, but also that the listener's understanding was reasonable. 

Consequently, if Dutcher knew that a hypersensitive listener would unreasonably see his statement as a threat, there could be no willfulness. In any event, we review jury instructions as a whole; so long as `the instructions treat the issues fairly and accurately, they will not be disturbed upon appeal.’ United States v. Coté, 504 F.3d 682, 687 (7th Cir. 2007) (citation omitted). Dutcher's defense at trial was that his statements were political hyperbole, not credible threats. The instructions fully conveyed that point to the jury. Elsewhere, in language Dutcher does not challenge, they defined a `true threat’ as `a serious expression of an intent to commit an act of unlawful violence,’ and they distinguished such statements from `[i]dle or careless talk, political hyperbole or something said in a careless or joking manner. . . .’ This was more than enough to present Dutcher's theory of defense to the jury.

U.S. v. Dutcher, supra.

The court went on to explain that

Dutcher urges in the alternate that § 871(a)'s mens rea of `knowingly and willfully’ requires a defendant to know that her conduct is illegal. There is force to the argument that when a statute uses both terms, it is asking for something more than either term would require on its own. Thus, in United States v. Bates, 96 F.3d 964, 970 (7th Cir. 1996), aff'd on other grounds, 522 U.S. 23, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997), we read the same phrase in a student loan fraud statute to require proof of a defendant's knowledge that her intentional conduct was unlawful. See also United States v. Wheeler, 540 F.3d 683, 690 (7th Cir. 2008) (expressing sympathy for the argument in dicta).

This type of heightened proof requirement, however, is typically limited to a narrow group of `highly technical [criminal] statutes that present [ ] the danger of ensnaring individuals engaged in apparently innocent conduct.’ Bryan v. United States, 524 U.S. 184, 194 (1998) (citing taxes and financial transactions as examples). Bates, which concerned the arcana of federal student loans, falls in that category. A statute prohibiting serious threats to the President does not. Elonis itself highlights the distinction. It expressly rejected the notion that the threat statute there, 18 U.S. Code § 875(c), required the government to show that the defendant knew that his conduct was illegal. Elonis, 135 S.Ct. at 2009. Instead, the Court followed `[t]he familiar maxim ‘ignorance of the law is no excuse’. . . .’ Id. The same approach is proper here. The President's safety does not turn on a defendant's familiarity with the United States Code.

U.S. v. Dutcher, supra.

The Court of Appeals ended its opinion with the following:

The evidence before the jury was sufficient to support both of Dutcher's convictions, and the jury instructions fairly presented the relevant issues. We therefore AFFIRM the judgment of the district court.

U.S. v. Dutcher, supra.

Retail Theft, Criminal Conspiracy and the Computer Monitors

This post examines an opinion from the Superior Court of Pennsylvania: Commonwealth v. Chikonyera, 2017 WL 815391 (2017).  The court begins the opinion by explaining that

William V. Chikonyera, appeals from the judgment of sentence of 4 years' probation, imposed after he was convicted, following a non-jury trial, of retail theft, 18 Pa.C.S. § 3929(a)(1), and criminal conspiracy, 18 Pa.C.S. § 903(a)(1). On appeal, Appellant solely challenges the sufficiency of the evidence to sustain his convictions.

Commonwealth v. Chikonyera, supra.

The opinion goes on to explain that

[b]riefly, Appellant was arrested and charged with the above-stated offenses based on his and a cohort's theft of two computer monitors from a Walmart store located in Philadelphia. Appellant proceeded to a non-jury trial and was ultimately convicted of retail theft and criminal conspiracy. On November 24, 2015, he was sentenced to an aggregate term of 4 years' probation. Appellant filed a timely notice of appeal, and he also timely complied with the trial court's order to file a [Pennsylvania Rules of Appellate Procedure] 1925(b) statement. The court filed a responsive opinion on March 21, 2016. Herein, Appellant presents one issue for our review, challenging the sufficiency of the evidence to sustain his convictions.

Commonwealth v. Chikonyera, supra.

The brief filed on behalf of Chikonyera on appeal added more details to those set out in the court’s opinion:

The case involves theft from a Walmart. The main witness was Walmart security officer Omar Santos. Mr. Santos testified at the trial that on May 12, 2014, at 11:20AM, he worked as a security officer at the Walmart located at One Franklin Mills Boulevard in the city and county of Philadelphia. N.T 9/18/15 pg.8. Mr. Santos stated that he observed a male named Mr. Markeece, from looking at the security camera, place two computer monitors into a shopping cart. N.T 9/18/15, pg. 10.

Santos stated that Markeece left the shopping cart with Appellant William Chikonyera who proceeded to rip the security devices off of the two computer monitors. N.T 9/18/15 pg.10. Santos stated the security devices were ripped off the monitors he contacts the police. N.T 9/18/15 pg.14. Shortly thereafter, Mr. Santos watched Markeece and the Appellant exit the store. Markeece pushed the shopping cart, while the Appellant walked along side the shopping cart. N.T 9/18/15 pg.11.

Mr. Santos stated that he approached both individuals outside on the sidewalk and identified himself as a security officer. N.T 9/18/15 pg.13. The police arrived on scene. N.T 9/18/15 pg.14. Santos stated Markeece abandoned the computer monitors in the shopping cart on the sidewalk, and took off running. N.T 9/18/15 pg.12.

Officer Jared Attewell, of the Philadelphia Police Department, arrived to the Walmart in response to Mr. Santos' phone call. N.T 9/18/15 pg.14. Upon his arrival, Officer Attewell observed Mr. Santos pointing to Markeece, who he observed run and attempt to get into the already moving vehicle being driven by the Appellant. N.T 9/18/15 pg.49. Officer Attewell then stopped the vehicle and placed both the Appellant and Markeece under arrest. Mr. Santos identified Markeece and the Appellants as the two individuals that took the shopping cart out of the store without paying. N.T 9/18/15 pg.50.

Brief of Appellant, Commonwealth v. Chikonyera, 2016 WL 8229147. 

The opinion goes on to explain that

[b]riefly, Appellant was arrested and charged with the above-stated offenses based on his and a cohort's theft of two computer monitors from a Walmart store located in Philadelphia. Appellant proceeded to a non-jury trial and was ultimately convicted of retail theft and criminal conspiracy. On November 24, 2015, he was sentenced to an aggregate term of 4 years' probation. Appellant filed a timely notice of appeal, and he also timely complied with the trial court's order to file a [Pennsylvania Rules of Appellate Procedure] 1925(b) statement. The court filed a responsive opinion on March 21, 2016. Herein, Appellant presents one issue for our review, challenging the sufficiency of the evidence to sustain his convictions.

Commonwealth v. Chikonyera, supra.

The court then goes on to explain that

[i]n reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011). Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009). The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt. Moreno, supra at 136.

Commonwealth v. Chikonyera 39 A.3d 996, 1001 (Pa. Super. 2011).

The court goes on to describe the offenses with which Koch was charged:

Retail theft is defined in the Crimes Code, as follows:

(a) Offense defined.—A person is guilty of a retail theft if he:

(1) takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof;

18 Pa.C.S. § 3929(a)(1). Additionally, criminal conspiracy is defined as:

(a) Definition of conspiracy.—A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S. § 903(a)(1)–(2).

Commonwealth v. Chikonyera, supra.

The opinion goes on to explain that

[i]n this case, Appellant presents a very cursory argument in challenging the sufficiency of the evidence to sustain his convictions. Essentially, he maintains that the evidence demonstrated only that he was present at the scene while his cohort committed the retail theft. After reviewing the record, we disagree. The evidence presented at Appellant's trial, as summarized by the trial court below, was clearly sufficient to prove that he committed both retail theft and criminal conspiracy:

Omar Santos (`Mr. Santos’) testified that on May 12[ ], 2014, at 11:20 [a.m.], he worked as a security officer at the Walmart located at One Franklin Mills Boulevard in the city and county of Philadelphia. From the store security cameras, Mr. Santos observed a male named Mr. Markeece (`Markeece’) place two computer monitors into a shopping cart. Markeece then left the shopping cart with [ ] Appellant who proceeded to rip the security devices off [ ] the two computer monitors. Accordingly, once Mr. Santos saw the security devices being ripped off the monitors he contacted the police. Shortly after, Mr. Santos watched Markeece and [ ] Appellant exit the store. Markeece pushed the shopping cart, while [ ] Appellant walked along side [sic] of the shopping cart. [ ] Appellant and Markeece passed all points of sale, made no attempt to purchase the computer monitors, and no receipts were provided for the items.

Mr. Santos approached both suspects outside on the sidewalk and identified himself as a security officer. In response, Appellant started quickly walking to his car, while Markeece talked to Mr. Santos. As Mr. Santos spoke to Markeece, the police arrived on scene. Markeece abandoned the computer monitors in the shopping cart on the sidewalk, and took off running.

Officer Jared Attewell, of the Philadelphia Police Department, arrived to the Walmart in response to Mr. Santos'[s] phone call. Upon his arrival, Officer Attewell observed Mr. Santos['s] pointing to Markeece, who [the officer] observed run and attempt to get into the already moving vehicle being driven by [ ] Appellant. Officer Attewell then stopped the vehicle and placed both [ ] Appellant and Markeece under arrest. Mr. Santos identified Markeece and [ ] Appellant as the two individuals that took the shopping cart out of the store without paying.

Trial Court Opinion, 3/21/16, at 1–2 (citations to the record omitted)

Commonwealth v. Chikonyera, supra.

The prosecution’s brief on appeal notes that

[t]he value of the collective haul was $722.81. Markeece walked behind defendant, pushing the cart, as the two left the store together. . . . 

Commonwealth’s Brief for Appellee, 2016 WL 8229148 (Pa.Super.).

The Superior Court went on to explain that

[t]his evidence clearly belies Appellant's argument that he was merely present at the scene when Markeece stole the computer monitors. Appellant and Markeece obviously intended to steal the monitors, agreed to do so together, and both men committed overt acts in furtherance of that conspiracy. See Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001) (`A conspiracy conviction requires proof of (1) an intent to commit or aid in an unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of the conspiracy’) (citation omitted).

Specifically, Markeece put the monitors into the cart, and Appellant removed their security tags, thus suggesting an intent to steal those items. The two men then walked out of the store together, with the cart containing the monitors. Neither Appellant nor Markeece attempted to pay for the monitors, further demonstrating their intent to steal them. Finally, when confronted by Mr. Santos outside the store, Appellant quickly walked away, and then subsequently assisted Markeece in fleeing from Officer Attewell by driving the get-away car.

Appellant's and Markeece's flight indicated their consciousness of guilt, and the court was free to consider it, along with the other evidence produced by the Commonwealth, in finding Appellant guilty. See Commonwealth v. Hargrave, 745 A.2d 20, 23 (Pa. Super. 2000) (citations omitted). Therefore, the evidence was more than sufficient to prove that Appellant committed retail theft and criminal conspiracy.

Judgment of sentence affirmed.

Commonwealth v. Chikonyera, supra.