Woodward, Friedman, Sharer, J. Frederick (Retired, Specially
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:
the trial court err in admitting GPS [global positioning
system] records and testimony based upon those records?
the trial court commit plain error in instructing the jury on
the elements of the crime of theft scheme?
reasons that follow, we answer both questions in the negative
and affirm the judgments of the circuit court.
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.
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. Concerned, Jenkins had video surveillance
installed in the warehouse to monitor the company's
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. Jenkins decided to continue his
observations to determine if Mason was acting alone.
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.
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"). 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
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
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