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Gross v. State

Court of Special Appeals of Maryland

July 27, 2016

MARCUS ALLEN GROSS
v.
STATE OF MARYLAND

          Woodward, Friedman, Sharer, J. Frederick (Retired, Specially Assigned), JJ.

          OPINION

          Woodward, J.

         A jury in the Circuit Court for Prince George's County convicted Marcus Allen Gross, appellant, of the commission of a theft scheme of property valued over $100, 000, theft of property valued between $10, 000 and $100, 000, and conspiracy to commit theft of property valued over $100, 000. Appellant noted this appeal and presents two questions for our review:

         1. Did the trial court err in admitting GPS [global positioning system] records and testimony based upon those records?

         2. Did the trial court commit plain error in instructing the jury on the elements of the crime of theft scheme?

         For the reasons that follow, we answer both questions in the negative and affirm the judgments of the circuit court.

         BACKGROUND

         Harry Eklof & Associates ("Eklof") distributes heating and plumbing supplies on the East Coast. The company is located at 3401 Pennsy Drive in Landover, Maryland, which is near 75th Avenue, East West Highway, and Route 50. At this location, the company has a warehouse that contains on any given day millions of dollars worth of inventory, including over $5 million in copper materials. Richard Jenkins, Eklof's operations manager, stated that the warehouse opens Monday through Friday at 6:00 a.m. for the company's drivers, and the warehouse employees arrive for work at 7:00 a.m. Although the warehouse remains open until 5:00 p.m., most warehouse employees leave by 3:45 p.m. In 2012, the company had approximately sixty employees, including two drivers. The company hired appellant as a warehouse employee in February 2012.

         In July 2012, Eklof conducted its annual inventory. Jenkins testified that the company was "[a] little short, but nothing to raise a major concern." In early November 2012, however, the company encountered a problem: employees reported shortages of copper fittings that the company's computer records indicated should have been in abundant supply. Jenkins conducted his own inventory and determined that 506 cartons of copper fittings, weighing a total of 19, 065 pounds, were missing, meaning a loss to the company of $263, 078.10.[1] Concerned, Jenkins had video surveillance installed in the warehouse to monitor the company's copper.

         Shortly after installation of the surveillance, Jenkins reviewed the footage from November 19, 2012. The footage showed Terrence Mason, one of the company's drivers, take copper from the warehouse, place it in his personal vehicle, and drive away.[2] Jenkins decided to continue his observations to determine if Mason was acting alone.

         The Monday after Thanksgiving, November 26, 2012, Jenkins arrived at the warehouse early, hid his vehicle, and concealed himself in a position from which he could observe the employee parking lot. From his hiding spot, Jenkins witnessed Mason arrive at the warehouse and place several cartons of copper fittings in his personal vehicle. Jenkins summoned police, and Mason was arrested at the warehouse. Shortly after 7:00 a.m. on the same day, appellant called Jenkins to say that he would be absent that day because he could not find a babysitter for his son. Appellant called with the same excuse the following day. On the next day, appellant gave the same excuse and told Jenkins he would re-apply for his job "after he got everything taken care of, " but he never contacted Jenkins again.

         Detective Jeffrey Higgins of the Prince George's County Police Department was the lead investigator of the case. He ran the names of Eklof's employees through the Regional Automated Property Information Database ("RAPID"), which tracks pawn shop sales and scrap metal transactions. Appellant "stood out" to Detective Higgins because appellant scrapped a large amount of copper number 1. Between May 1, 2012, and November 26, 2012, appellant completed ten scrap transactions-five at Joseph Smith & Sons, Inc. ("Smith"), and five at Ultra Recycling, Inc. ("Ultra").[3] In total, appellant scrapped 408 pounds of copper number 1 for $1, 118.80 at Smith and 3, 980 pounds of copper number 1 for $11, 433 at Ultra. Brian Benko, an information officer at Smith, testified that copper number 1 is rare in scrapping transactions because it is new and unused.

         Benko also explained that, before a customer scraps metal, his company, as well as other scrap yards, document the scrapper's driver's license and license plate number. In examining the scrap records, Detective Higgins noticed that appellant usually drove his personal vehicle to the scrap yards, but, on two occasions, appellant drove a white box truck with Maryland tag number 71T531. Detective Higgins searched for this license plate in RAPID and discovered more scrap transactions completed by Jeff Ragland, appellant's cousin.

         Ragland worked for the Schindler Elevator Company ("Schindler") as a driver. Ragland conducted eleven scrapping transactions with Ultra in which he sold a total of 6, 846 pounds of copper number 1 for $16, 689.50, and three sales with East Coast Metals, LLC ("East ...


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