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Ross v. State

Court of Special Appeals of Maryland

March 3, 2017


          Meredith, Nazarian, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.


          Moylan, J.

         A drone may release a bomb and incinerate a building in the outback of Afghanistan while the hand that guides the drone and releases the bomb sits quietly before a control panel in Colorado Springs. If called before a court of inquiry, that hand at the control panel will not enjoy the alibi of having been half a world away nor be able to invoke the disclaimer of never having touched the drone. The phenomenon of aiding and abetting, if not indeed that of first-degree principalship, has undergone a sea change.

         The Present Case

         The appellant, Teresa Ross, was convicted in the Circuit Court for Prince George's County by a jury, presided over by Judge James J. Lombardi, of three counts of theft of $100, 000 or more in United States currency. On this appeal, she contends

1. that the evidence was not legally sufficient to prove the mens rea of theft;
2. that the State's case was based solely on circumstantial evidence and that it failed to rule out every reasonable hypothesis of innocence;
3. that Judge Lombardi failed to instruct the jury about the burden on the State to disprove the Good Faith defense and the Claim of Right defense to theft; and
4. that Judge Lombardi erroneously failed to grant the appellant's Motion for New Trial based on newly discovered evidence.

         The Facts In This Case

         Between July 31, 2014 and October 13, 2014, over forty high-end Samsung televisions were stolen from the Sears Department Store in Annapolis with a total value in excess of $200, 000. The mode of theft can generally be described as credit card fraud, perpetrated through the coordinated efforts of numerous parties, known and unknown. The appellant was convicted of knowingly facilitating the fraudulent use of credit card information, in her capacity as a sales associate, thereby perpetuating and accelerating the flow of the televisions out the store and into the hands of the thieves, all the while earning an impressive commission. The following represents a brief summary of that version of the evidence most favorable to the State.

         On July 31, 2014, a young man entered the Sears store in Annapolis, and approached James Miller - the lead supervisor of the electronics department. He identified himself as "Geoffrey Atkins, Jr." and informed Miller that he wanted to purchase a 75-inch Samsung television to give to his mother for her birthday. When it came time to pay, however, his debit card was declined for insufficient funds. He promptly took out a cellphone and made a five-minute phone call. At the conclusion of the call, he offered Miller an eminently pragmatic solution: his father, Geoffrey Atkins, Sr., would call in later to pay for the television, and he would simply pay his father back over time.

         As promised, a Geoffrey Atkins, Sr. ("Mr. Atkins") did call the electronics department that evening to pay for the television. To that end, he provided Miller with the number for an American Express credit card. Bryan Jansen, the store manager, testified that although it was generally Sears policy not to conduct over-the-phone transactions using third-party credit cards (i.e., any non-Sears credit card) he gave Miller permission to go forward in that instance based on his understanding that the sale began as an in-person transaction. Miller entered the credit card information into the register, and the transaction was "immediately approved" without incident.

         In the weeks that followed, "Mr. Atkins" or his wife, "Mrs. Atkins, " would regularly call the Sears electronics department to purchase additional televisions, which they at one point indicated were being used to "upgrade" the family's chain of barbershops so as to "keep up with the times." Jansen testified that it is not uncommon for individuals to purchase large quantities of televisions from Sears for the purpose of outfitting a business location.

         Not all of the transactions, however, proceeded "without incident." On some occasions, the cash register would generate what was referred to at trial as a "register prompt." Jansen explained that register prompts are "generally fraud-detecting questions, " or instructions for the sales associate conducting the transaction to take additional steps in order to verify the identity of cardholder. A common instruction was for the sales associate to contact the credit card company to obtain an "authorization code."

"[MR. JANSEN]: There are occasions in which the register is going to ask for more information. And the[s]e are generally fraud-detecting questions. One of the most common questions is for you to call the credit agency involved.
"So if it is a Discover Card, there's a specific Discover number that you're to contact to get approval for that charge.
"[PROSECUTOR]: And there's a specific authorization given after that?
"[MR. JANSEN]: Yes. So at that time, the register will not proceed unless you enter an authorization code. That authorization code is provided by the person on the phone that you contact."

(Emphasis supplied).

         On August 7, 2014, Miller was handling an over-the-phone purchase by Mrs. Atkins when a register prompt was generated that requested an authorization code from American Express. When Miller informed Mrs. Atkins that he needed to provide American Express with additional information, she suggested that she could just call the company directly from her house phone and then relay the authorization code to Miller.

"[MR. MILLER]: And she said she was going to call from her house phone. I read her off the phone number. She had a conversation with someone on the other line that sounded exactly like the conversation I would have had if I called.
"And she like, right on cue, asked me for certain information to give it to them. So everything sounded like it was legit."

(Emphasis supplied).

         Over the course of the next several weeks, whenever an authorization code was required during an Atkins purchase, a member of the Atkins family would provide it.[1] Between July 31, 2014, and August 25, 2014, the Atkins family purchased a total of fourteen (14) high-end televisions, and charged a total of $55, 524.42 to various American Express and Discover credit cards.

         Bryan Jansen testified that there came a point when, in the course of reviewing a monthly "Profit and Loss Statement, " he noticed an unusually large amount of "charge- backs, " which were defined as "a debit issued by a credit card company to a merchant based on noncompliance with the merchant agreement policy." In other words, Sears was being left on the hook for numerous credit card transactions which had not been properly verified with the credit card company. Concerned that the unusually large amount of charge-backs might be related to the recent boost in televisions sales, Jansen asked Miller into his office, and the two shared an epiphany:

"[MR. MILLER]: And he just wanted to sit me down and talk to me about the process I was taking in serving this member [i.e., Mr. and Mrs. Atkins]. And I basically ran through the whole thing with him in detail, step by step, how a transaction would go.
"And when I got to the point of, you know, the system prompted for an authorization code, that's when he stopped me. He was like, well, you didn't call? And that was when I had that ah-ha moment, like I should have been doing this the whole time."

(Emphasis supplied).

         As a result of that conversation, Jansen emphasized to Miller that for all future Atkins purchases it was critical that all register prompts be precisely followed, and specifically, where an authorization code was requested that it must be obtained by calling the credit card company directly and was never to be provided by the customer. Miller, in turn, stressed the importance of these protocols during individual conversations with each of the three of the sales associates then under his supervision: Sherry Harley, Bernardette Carter, and the appellant - Teresa Ross.

         Between September 10 and October 13, 2014, not only did the Atkins television purchases continue unabated, but the frequency and size of the transactions actually increased. Notably, with the exception of two transactions on October 9 which were handled by Bernardette Carter, the appellant was the exclusive conduit through which all Atkins purchases were made. In less than five weeks, the appellant sold the Atkins family twenty-nine (29) high-end Samsung televisions, with a total value of $125, 684.41. The appellant's approximate commission on those sales would have been between $2, 500 and $3, 770.

         Miller testified that whenever he learned of an Atkins purchase - typically in the course of the store's daily morning meeting - he would make a point of speaking to the appellant and confirming that all register prompts had been followed and that, if necessary, the credit card company had been contacted directly to obtain an authorization code. The appellant repeatedly assured Miller that she was following protocol. That, it would later turn out, was not true.

         At some point, the dubious circumstances surrounding the Atkins purchases was brought to the attention of the Sears Asset Protection division and eventually became the focus of a multi-agency investigation involving representatives from Sears, Discover Card, and the Prince George's County Police Department. Members of the investigation team observed live store-surveillance footage of the appellant completing transactions which were later determined to have been fraudulent.

         On October 13, 2014, the date of the appellant's last sale, she completed four separate Atkins transactions in a span of less than two hours, involving eight televisions, and charging a total of $33, 007.84 to both American Express and Discover cards. Those televisions were made the subject of at least two controlled deliveries, under the supervision of Prince George's County police, to 410 Warfield Drive, one of three addresses provided by the Atkins family. On October 17, 2014, the date of the second controlled delivery, police executed a search warrant on the home and recovered a number of the stolen televisions. Phillip Anderson, along with Lynwood Belcher - the appellant's eventual co-defendant - were in the home and were arrested at that time.

         The next day, on October 18, 2014, William Samuels, the asset protection manager at the Annapolis Sears, brought the appellant into his office. He described her demeanor as "extremely upset and nervous, " before he had even explained to her why she was there and that fifteen minutes passed before she was calm enough to talk. Samuels asked the appellant where she had gotten the authorization codes for the transactions. She responded, in direct contrast to her repeated assurances to Miller, that she obtained the authorization codes from the customer. Samuels asked the appellant why she had not followed proper procedure for obtaining the authorization codes. She replied, simply, that she "was too busy."

         On September 22, 2015, the jury convicted the appellant of three counts of theft scheme over $100, 000. On January 15, 2016, the appellant received a suspended two-year sentence for each count, was placed on two years' probation, and ordered to pay $3, 000 of restitution.

         Legal Sufficiency of the Evidence

         The appellant's primary contention is that the evidence was not legally sufficient to permit Judge Lombardi to submit the case against her to the jury. Such a contention, of course, focuses exclusively on the burden of production. The appellant's gratuitous jury argument to us, therefore, needs no response. On the burden of production, we can narrow the focus even more tightly. The challenge is not to proof of the actus reus of theft, although, to be sure, it was a highly unusual actus reus. The sole challenge is to the proof of the appellant's mens rea.

         Although the application of the standard of review to the unusual facts of this case may stray far from the well-trodden factual path, the standard itself is clear. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct 2781, 61 L.Ed.2d 560 (1979), is the universally followed pole star, as it tells us, 443 U.S. at 319, that the standard for review of the sufficiency of the evidence is "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bible v. State, 411 Md. 138, 156, 982 A.2d 348 (2009); State v. Smith, 374 Md. 527, 533, 823 A.2d 664 (2003); White v. State, 363 Md. 150, 162, 767 A.2d 855 (2001).

         When the appellant, and her co-defendant Lynwood Belcher, each moved for a judgment of acquittal at the end of the entire case, the discussion was singularly unilluminating. Much of it concerned the co-defendant, against whom the State's case was totally different. Another large part of it concerned the conspiracy count, of which the jury acquitted the appellant. The heart of the appellant's very brief argument was that if she were guilty, then so was her supervisor, James Miller. That however is hardly proof of innocence. As to the appellant, the Judge denied the Motion for Acquittal.

"THE COURT: The jury is going to listen to your arguments, and you may be able to persuade them because you have a different standard that you're meeting with the jury than you're meeting with me.
"All the State has to do is provide legally sufficient evidence to get to the jury. Once they get to the jury, it's up to you to make your pitch that you're making to me. That's a pitch that you should make to the jury and not to me."

(Emphasis supplied). That does not help us much.

         The actus reus of this particular theft, as we have said, was highly unusual. Between July 2014, and October 2014, a group of thieves of unknown number devised a sophisticated scheme whereby they were able to steal approximately forty-eight (48) highly priced flat-screen/curve-screen television sets from the theft victim, the Sears Holding Corporation ("Sears"), amounting to a potential loss to Sears of $204, 000. Throughout the entire course of this operation, however, no culprit was ever required to lay a heavy hand on a single item of stolen property. Except in a constructive sense, there was neither a common law asportation nor a common law caption. It would have bewildered Blackstone. It was all done by telephone.

         The telephone was the critical gateway and the appellant was one of the few persons who served as a gatekeeper. The most routine of credit card transactions are face-to-face between the vendor and the vendee. The credit card is "swiped" through a register. Unless a special "alert" is triggered, the verification of the card is virtually immediate and the sale is consummated. The sale gets more complicated, however, when the order comes in by telephone. The vendee orders a product and proffers payment by credit card, furnishing the credit card number and possibly other verifying data. Ordinarily, even the telephone purchase is routine. There are, however, circumstances that sometimes take the use of the credit card out of the routine and call for enhanced scrutiny. Even at the initial "swiping" of the card but more frequently with respect to a telephone purchase, there may pop up what the trade refers to as a "register prompt." That is something that at least raises the eyebrow of suspicion. The card may have expired or be otherwise invalid. The card may have been stolen. The card owner may be dead. The owner may live in Nome, Alaska, and the card itself has never been used in "the lower 48." The purchase may involve a large sum of money on a card that seldom, if ever, reaches such heights. There may be an unusually large number of purchases for similar items under circumstances that are, at the very least, out of the ordinary. The "prompts" simply alert the thus prompted gatekeeper that something may be "fishy, " and that heightened scrutiny is the order of the day.

         The "prompts" are designed to trigger precautionary procedures. A gatekeeper such as the appellant is, upon receiving a prompt, supposed to notify the credit card company so that it, in turn, may undertake some further examination. Only when the credit card company has checked out the situation and issued an "authorization code" to the vendor may the credit card sale then properly proceed. The flaw in the system is that, using American Express as an example, any six digit number will appear to be a valid authorization code even though it is not. If a salesperson such as the appellant logs in any six digit number as an ostensible authorization code, the sale will go forward even if it was not properly authorized. If the sale appears to have been authorized, the gate will open.

         During many of the ill-fated transfers in this case, particularly those between September 10, 2014 and October 13, 2014, it was the appellant who controlled the movement of the ultimately stolen property. While, on the motion for acquittal, the appellant meekly protested her lack of physical control over the property, the reality was quite otherwise. If a salesperson such as the appellant, who receives a telephoned credit card order, authorizes that order to go forward, Sears employees at a warehouse in Columbia, Maryland forthwith remove a television set from a shelf and place it on a truck. Other Sears employees then drive the truck to the destination given by the buyer. If, on the other hand, the telephone operator puts the sale on hold and remands the order to the credit card company for a further protective inquiry, the television set will not leave its shelf and the truck will not leave the warehouse.

         Although this may not have been a style of hands-on entrepreneurial activity familiar to Currier and Ives or even to Norman Rockwell, it is today indisputably a paradigm of latter-day control. As thousands of dollars pass back and forth over telephone lines, an operator such as the appellant exerts control over that passage of funds as surely as the driver of a Brinks truck controls the passage of cash from place to place. As Sears authorized the appellant to obtain and exert control over the movement of its high-priced television sets, it looked to her vigilance not to release them to a credit card thief, even as it would look to the vigilance of its night watchman not to hand over its inventory to a midnight burglar. The technology of theft has irrevocably changed, as the number of a stolen credit card has taken the place of a jimmy at the window.

         As we assess the legal sufficiency of the evidence, our focus, of course, is not on what the jury should have believed. It is on what the jury could have believed.

         A. There Was Something "Fishy" About the TV Orders

         It could have believed that the appellant had good reason to suspect that there was something "fishy" about the TV purchases. The appellant was no mere telephone receptionist, handling calls in an essentially automatic or robotic fashion. She was authorized to make at least medium-level executive decisions involving significant sums of money. Based on information given to her on the phone, she could allow sales charged to credit cards to go forward immediately or she could put those sales on what could turn out to be temporary or even permanent hold. It was most definitely her call to make. In this case, the circumstances surrounding the sales of numerous highly priced sets to the family of Mr. and Mrs. Geoffrey Atkins was such that the appellant could be found to have had reason to suspect that something "fishy" might be afoot. Not necessarily criminal, simply "fishy." Unusual, strange, out of the ordinary.

         With the small staff of the electronics department holding essentially daily morning meetings at which was discussed the significant sales of the day before, it was common knowledge that the Atkins family was buying numerous high priced televisions units that cost approximately $3, 000 to $6, 000 each. As the weeks rolled by, the number of those sales were mounting until they ultimately totaled 46 such sales. The proffered explanation that the Atkinses were opening and furnishing a chain of barbershops with entertaining amenities could, of course, been completely accepted at face value. As a jury ponders possibilities, on the other hand, the barbershop explanation might have been taken with a grain of Attic salt. From the surrounding circumstances alone, the jury might have concluded that the appellant had reason to suspect that something strange was going on. When the appellant, therefore, was called upon to perform her gatekeeping responsibilities, there was good reason for her to approach those responsibilities with a sense of heightened scrutiny.

          The obligation on the appellant to exercise heightened scrutiny became even more direct and explicit, moreover, when first her immediate supervisor, James Miller, and then the officer manager, Bryan Jansen, gave her express orders to follow all of the precautionary protocols when dealing with telephoned orders for the high priced television units from Geoffrey Atkins or his wife. The testimony of Bryan Jansen, the store manager, was very specific about his conversations with the appellant about obtaining the proper authorization from the credit card company.

"[MR. JANSEN]: James [Miller] would instruct me why we had a big day the day before. If it was a situation where I was told that Mr. Atkins purchased more TVs, the next time that I would see [the appellant], I would follow up with [her] and confirm the process in which, if they are prompts that come up in the register, the prompts must be followed. The credit card company must be contacted. And we must personally obtain the authorization number from the credit card company.
"[PROSECUTOR]: Did you say that to her?
"[MR. JANSEN]: Yes.
"[PROSECUTOR]: Teresa Ross? Did you say obtain that authorization?
"[MR. JANSEN]: Specifically, obtain that authorization from the phone number provided. There was a question, who was able to provide the authorization codes.
"I specifically discussed, the customer is never allowed to provide authorization codes. They must be obtained by calling the number that comes up on the prompts, and that is the authorization number that must be entered.
"[PROSECUTOR]: And did Ms. Ross indicate that she understood that was the process?
"[MR. JANSEN]: Yes."

(Emphasis supplied).

         James Miller, the appellant's immediate supervisor, independently confirmed that, between September 10, 2015 and October 15, 2015, he questioned the appellant on a number of occasions about her following of the precautionary protocols and was regularly assured by her that she had, indeed, been following them.

"[PROSECUTOR]: Okay. So in those, between the 10th of September and the 13th of October, were you having - I think you said - various conversations with Teresa to make ...

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