FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
September 12, 2013
In the Court of Appeals of Georgia A13A1054. LATIMORE v. STATE.
BOGGS, Judge.
A jury found Maynard Latimore guilty of theft by shoplifting. Following the
denial of his motion for new trial, Latimore appeals, asserting the general grounds.
He also contends that the trial court erred in allowing prior difficulty and similar
transaction evidence. For the following reasons, we affirm.
Construed in favor of the verdict, the evidence showed that on October 12,
2011, a woman entered a Gwinnett County Home Depot store, and purchased three
five-gallon buckets of waterproofing and stain at around 2:14 p.m. Minutes later, at
around 2:22 p.m., Latimore entered the store, put three five-gallon buckets of
weatherproofing and stain in his shopping cart, walked past several checkout
registers, showed a cashier a receipt, and walked out of the store via the tool rental department without paying for the items. He then re-entered the store at around 2:28
p.m., put the same items in his shopping cart and again passed several checkout
registers before exiting the store through the garden department without paying for
the items. When Latimore was stopped after exiting the store the second time, he had
in his possession a receipt for three buckets of waterproofing and stain totaling $463
that showed the time of purchase as 2:13 p.m.
A store manager explained that Latimore participated in what is termed a
“double shop,” where one person purchases items from the store and then passes the
receipt along to a second person who then enters the store and selects the same items
listed on the receipt. The second person walks out of the store without paying for the
items, but if confronted produces the receipt of the earlier purchase as evidence of the
current purchase. He explained: “And the transactions are so close that it looks - -
with time it looks like that it was the original transaction.”
The State introduced similar transaction evidence of Latimore’s prior act of
shoplifting in Clayton County in May 2005, and subsequent act in Henry County in
November 2011. An asset protection specialist at a Clayton County Home Depot
testified that on May, 26, 2005, he began observing Latimore after Latimore entered
the store and began “[l]ooking up at the cameras, looking side to side, acting a little
2 nervous.” He explained further that he observed Latimore put a sprinkler pump and
three cases of tile into a shopping cart, pass several checkout registers, and exit the
store without paying for the merchandise, which was valued at $480.10. Latimore was
arrested and subsequently pled guilty to shoplifting.
The manager who observed Latimore at the Gwinnett County Home Depot
store in October 2011, was assigned to a Henry County Home Depot location on
November 9, 2011, when he received a call from another employee stating that
Latimore had selected “a couple of Dremel kits from our hardware department and
a couple of buckets of nails.” The employee had observed the woman from the
Gwinnett County store purchase the same items before she spotted Latimore.
Latimore passed several other checkout registers and exited through the tool rental
department after he “flashed” a receipt at a cashier. When an employee attempted to
stop Latimore, he pushed the shopping cart at the employee and fled, but was soon
apprehended.
The store videotape revealed that minutes before Latimore entered the store and
selected the items, the woman from the Gwinnett County incident had entered the
store and purchased the exact same items. When Latimore was apprehended, he had
3 in his possession a receipt for a different purchase from another Home Depot
location.
The trial court also allowed the admission of Latimore’s acts at a DeKalb
County Home Depot as prior difficulties between Latimore and Home Depot “as
those difficulties relate to [Latimore’s] course of conduct and bent of mind.” Latimore
was observed at a DeKalb County Home Depot on March 23, 2011, “pushing
merchandise under the garden fence, and then he came around to pick it up,” before
being stopped by police. He was given a criminal trespass warning that prohibited
him from returning to any Home Depot store for one year. On February 22, 2012,
Latimore and another man attempted to return a “high dollar” faucet at the same
DeKalb County location. Latimore was arrested for criminal trespass.
Latimore testified that he pled guilty to shoplifting at the Clayton County
Home Depot in 2005, that he was arrested on March 23, 2011 for shoplifting at the
DeKalb County Home Depot and was arrested again at that location in February 2012
for criminal trespass. He stated that he did not remember receiving the criminal
trespass warning in March 2011, but explained: “[t]hey might have told me, but I
never heard, I didn’t hear it.” Latimore identified himself in the videotape of the
November 9, 2011 incident at the Henry County Home Depot.
4 1. Latimore contends that the prior and subsequent acts admitted were not
sufficiently similar to the current crime. The trial court ruled that the acts were
sufficiently similar and allowed the admission of the acts to “show a course of
conduct or bent of mind.”
Evidence of a similar transaction may be admitted if the State demonstrates that (1) evidence of the independent offense or act is being offered not to raise an improper inference as to the accused’s character but for an appropriate purpose; (2) the evidence is sufficient to establish that the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged such that proof of the former tends to prove the latter.
(Citation and punctuation omitted.) Harvey v. State, 292 Ga. 792, 793-794 (2) (741
SE2d 625) (2013). Moreover, “[w]e will uphold the trial court’s decision to admit a
similar transaction unless it is an abuse of discretion.” (Citation and punctuation
omitted.) Muhammad v. State, 290 Ga. 880, 882-883 (2) (725 SE2d 302) (2012).
Latimore argues that the acts here were not similar because different items were
taken and because the prior act in Clayton County in 2005 did not involve a “double
shop.” But “[w]hen considering the admissibility of similar transaction evidence, the
proper focus is on the similarities, not the differences, between the separate crime and
5 the crime in question.” (Citation and punctuation omitted.) Id. Here, the acts both
involved the theft of items from a Home Depot store in which Latimore put items in
a shopping cart, passed several checkout counters, and exited through either the
garden area or tool rental area of the store without paying for the items. Under these
circumstances, the trial court was within its discretion to admit the acts as similar
transaction evidence to show Latimore’s course of conduct or bent of mind. See
Smarr v. State, 317 Ga. App. 584, 588 (1) (732 SE2d 110) (2012); see also Willett v.
State, 240 Ga. App. 108, 109-110 (522 SE2d 698) (1999) (shoplifting in large retail
establishments; defendant selected small items, concealed them in purse, and exited
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FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
September 12, 2013
In the Court of Appeals of Georgia A13A1054. LATIMORE v. STATE.
BOGGS, Judge.
A jury found Maynard Latimore guilty of theft by shoplifting. Following the
denial of his motion for new trial, Latimore appeals, asserting the general grounds.
He also contends that the trial court erred in allowing prior difficulty and similar
transaction evidence. For the following reasons, we affirm.
Construed in favor of the verdict, the evidence showed that on October 12,
2011, a woman entered a Gwinnett County Home Depot store, and purchased three
five-gallon buckets of waterproofing and stain at around 2:14 p.m. Minutes later, at
around 2:22 p.m., Latimore entered the store, put three five-gallon buckets of
weatherproofing and stain in his shopping cart, walked past several checkout
registers, showed a cashier a receipt, and walked out of the store via the tool rental department without paying for the items. He then re-entered the store at around 2:28
p.m., put the same items in his shopping cart and again passed several checkout
registers before exiting the store through the garden department without paying for
the items. When Latimore was stopped after exiting the store the second time, he had
in his possession a receipt for three buckets of waterproofing and stain totaling $463
that showed the time of purchase as 2:13 p.m.
A store manager explained that Latimore participated in what is termed a
“double shop,” where one person purchases items from the store and then passes the
receipt along to a second person who then enters the store and selects the same items
listed on the receipt. The second person walks out of the store without paying for the
items, but if confronted produces the receipt of the earlier purchase as evidence of the
current purchase. He explained: “And the transactions are so close that it looks - -
with time it looks like that it was the original transaction.”
The State introduced similar transaction evidence of Latimore’s prior act of
shoplifting in Clayton County in May 2005, and subsequent act in Henry County in
November 2011. An asset protection specialist at a Clayton County Home Depot
testified that on May, 26, 2005, he began observing Latimore after Latimore entered
the store and began “[l]ooking up at the cameras, looking side to side, acting a little
2 nervous.” He explained further that he observed Latimore put a sprinkler pump and
three cases of tile into a shopping cart, pass several checkout registers, and exit the
store without paying for the merchandise, which was valued at $480.10. Latimore was
arrested and subsequently pled guilty to shoplifting.
The manager who observed Latimore at the Gwinnett County Home Depot
store in October 2011, was assigned to a Henry County Home Depot location on
November 9, 2011, when he received a call from another employee stating that
Latimore had selected “a couple of Dremel kits from our hardware department and
a couple of buckets of nails.” The employee had observed the woman from the
Gwinnett County store purchase the same items before she spotted Latimore.
Latimore passed several other checkout registers and exited through the tool rental
department after he “flashed” a receipt at a cashier. When an employee attempted to
stop Latimore, he pushed the shopping cart at the employee and fled, but was soon
apprehended.
The store videotape revealed that minutes before Latimore entered the store and
selected the items, the woman from the Gwinnett County incident had entered the
store and purchased the exact same items. When Latimore was apprehended, he had
3 in his possession a receipt for a different purchase from another Home Depot
location.
The trial court also allowed the admission of Latimore’s acts at a DeKalb
County Home Depot as prior difficulties between Latimore and Home Depot “as
those difficulties relate to [Latimore’s] course of conduct and bent of mind.” Latimore
was observed at a DeKalb County Home Depot on March 23, 2011, “pushing
merchandise under the garden fence, and then he came around to pick it up,” before
being stopped by police. He was given a criminal trespass warning that prohibited
him from returning to any Home Depot store for one year. On February 22, 2012,
Latimore and another man attempted to return a “high dollar” faucet at the same
DeKalb County location. Latimore was arrested for criminal trespass.
Latimore testified that he pled guilty to shoplifting at the Clayton County
Home Depot in 2005, that he was arrested on March 23, 2011 for shoplifting at the
DeKalb County Home Depot and was arrested again at that location in February 2012
for criminal trespass. He stated that he did not remember receiving the criminal
trespass warning in March 2011, but explained: “[t]hey might have told me, but I
never heard, I didn’t hear it.” Latimore identified himself in the videotape of the
November 9, 2011 incident at the Henry County Home Depot.
4 1. Latimore contends that the prior and subsequent acts admitted were not
sufficiently similar to the current crime. The trial court ruled that the acts were
sufficiently similar and allowed the admission of the acts to “show a course of
conduct or bent of mind.”
Evidence of a similar transaction may be admitted if the State demonstrates that (1) evidence of the independent offense or act is being offered not to raise an improper inference as to the accused’s character but for an appropriate purpose; (2) the evidence is sufficient to establish that the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged such that proof of the former tends to prove the latter.
(Citation and punctuation omitted.) Harvey v. State, 292 Ga. 792, 793-794 (2) (741
SE2d 625) (2013). Moreover, “[w]e will uphold the trial court’s decision to admit a
similar transaction unless it is an abuse of discretion.” (Citation and punctuation
omitted.) Muhammad v. State, 290 Ga. 880, 882-883 (2) (725 SE2d 302) (2012).
Latimore argues that the acts here were not similar because different items were
taken and because the prior act in Clayton County in 2005 did not involve a “double
shop.” But “[w]hen considering the admissibility of similar transaction evidence, the
proper focus is on the similarities, not the differences, between the separate crime and
5 the crime in question.” (Citation and punctuation omitted.) Id. Here, the acts both
involved the theft of items from a Home Depot store in which Latimore put items in
a shopping cart, passed several checkout counters, and exited through either the
garden area or tool rental area of the store without paying for the items. Under these
circumstances, the trial court was within its discretion to admit the acts as similar
transaction evidence to show Latimore’s course of conduct or bent of mind. See
Smarr v. State, 317 Ga. App. 584, 588 (1) (732 SE2d 110) (2012); see also Willett v.
State, 240 Ga. App. 108, 109-110 (522 SE2d 698) (1999) (shoplifting in large retail
establishments; defendant selected small items, concealed them in purse, and exited
store without paying).1
2. Latimore complains that the evidence of prior difficulty did not show bent
of mind as the trial court concluded. “Prior difficulty evidence is admissible to
demonstrate the relationship between the victim and the defendant and such evidence
may show the defendant’s motive, intent, and bent of mind in committing the act
1 “We note that for trials conducted after January 1, 2013, the new evidence code permits the admission of similar-transaction evidence for the purpose of proving ‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,’ but no longer for the purpose of proving ‘course of conduct’ or ‘bent of mind.’ OCGA § 24-4-404 (b).” (Punctuation omitted.) Betancourt v. State, ___ Ga. App. ___ (3) n.15 (744 SE2d 419) (2013), citing generally Harvey, supra. This case was tried in 2012.
6 against the victim which results in the current charges.” (Citation, punctuation and
footnote omitted.) Westbrooks v. State, 263 Ga. App. 566, 568-569 (2) (588 SE2d
335) (2003). And while “prior difficulties” has been described as evidence of the
“defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat,”
(Citation, punctuation and footnote omitted.) Id. at 568 (2), we have held that nothing
in our case law limits prior difficulty evidence to only those circumstances, and that
“evidence of prior difficulties between a defendant and a corporation may be admitted
under proper circumstances.” (Citation and punctuation omitted.) Stallworth v. State,
303 Ga. App. 767, 769 (695 SE2d 276) (2010) (presenting inauthentic money orders
to same check cashing business on several prior occasions).
The evidence showed Latimore shoplifted at a Home Depot in DeKalb County,
was given a criminal trespass warning not to return to any Home Depot location for
one year following this act, and yet still returned to the DeKalb County location
within one year and attempted to return “a high dollar faucet” with another person.
This evidence was admissible as evidence of a prior difficulty and was relevant to
prove Latimore’s bent of mind to victimize Home Depot. See Westbrooks, supra, 263
Ga. App. at 569.
7 3. Latimore argues that the evidence was insufficient to sustain his conviction
because he “had a receipt on his person that was for the items taken. The State did not
show that the receipt was fake or altered.” But the evidence showed that Latimore
presented a receipt showing a time of purchase that was several minutes before he
even entered the store. The evidence presented, that Latimore walked out of the
Gwinnett County Home Depot with items he did not pay for, was sufficient to sustain
his conviction for shoplifting. See Parham v. State, 320 Ga. App. 676-677 (1) and (2)
(739 SE2d 135) (2013) (evidence sufficient to support shoplifting conviction where
defendant selected items from store shelves that were on receipt defendant admitted
he found outside store); see also former OCGA § 16-8-14 (a) and (b) (2) (offense of
theft by shoplifting is designated felony when subject of theft exceeds $300).
Judgment affirmed. Doyle, P. J. and McFadden, J., concur.