White v. State

1977 OK CR 332, 572 P.2d 569, 1977 Okla. Crim. App. LEXIS 669
Court of Criminal Appeals of Oklahoma·Decided December 2, 1977·No. No. F-77-17·Published·Cited by 2 cases

Opinion

OPINION

BRETT, Judge:

Appellant, Connie Elizabeth White, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, of the offense of Larceny of Merchandise from a Retailer, in violation of 21 O.S.1971, § 1731(D). After a nonjury trial before the Honorable Carmon C. Harris, the defendant was sentenced to three (3) years’ imprisonment. Defendant then announced her intention to appeal, and she was released on appellate bond. The time period for filing the appeal expired on January 9, 1977, and the following day a warrant for the defendant’s arrest was issued, because no appeal had been filed. On January 11, 1977, the defendant was granted leave to file an appeal out of time by order of the Presiding Judge of this Court.

The State’s first witness was Paul Adams, who on November 25, 1975, was employed as a store detective at the John A. Brown Department Store located in Penn Square Mall in Oklahoma City. While on duty that day, he received a security page directing him to report to the Men’s Sportswear Department. When he arrived there, he had a conversation with one of the salesmen. The witness then téstified that as a result of this conversation he observed and then followed the defendant around the store. After walking through the store, the defendant went out to the parking lot and got into her car. Mr. Adams testified that he watched the defendant from inside the glass doors of the entrance to the mall. He saw her reach into the back seat of the vehicle, bring out a white pillow case, place it on the front seat, and then return it to the floorboard. The defendant then exited the car and returned to the mall through a different entrance. Mr. Adams noticed that defendant’s purse appeared flat. After the defendant returned to the mall, Mr. Adams went to the defendant’s vehicle, reached inside and removed the white pillow case. Upon looking inside, he discover[571]*571ed a man’s blue leisure suit with a John A. Brown label, perforated in the middle and both sides intact. The witness testified that when merchandise is sold half of the tag is torn off and kept by the store. The price tag on the garment showed a price of $110.00. At this point Mr. Adams returned to the store entrance and told what he had seen to John Lundell, the store’s security director. Mr. Lundell suggested that they wait until the defendant return to her car. Both men got into Mr. Lundell’s car, which was parked on a raised part of the parking lot, from which they could observe defendant’s car. After a 20 minute wait, the defendant returned to her vehicle, and the witness noticed that her purse was “bulging.”

Mr. Lundell and the witness then drove up behind the defendant’s car and asked her to step out. The defendant complied. She was asked to show the contents of her purse to Mr. Lundell, and the defendant handed him her purse. Inside the purse were a ladies’ beige pant suit and black dress with John A. Brown labels still attached, indicating that the pant suit and dress had not been paid for. The combined price of these items was $320.00. The white pillow case was then removed from the car, opened, and the blue leisure suit removed. The defendant was escorted to the security office inside the store where she was advised of her rights. The witness then stated that the defendant was held at the security office until the police arrived. Later, the defendant was taken to the city jail.

On cross-examination, the witness admitted that he did not see the defendant actually remove the items in question from the store.

John Lundell was the second witness for the State. On November 25, 1975, he was employed as the security director for the John A. Brown Company. On that day he was working at the Penn Square Mall store when at 12:15 p. m. he had a conversation with Paul Adams. As a result of that conversation, he and Adams went to Lundell’s car, which was parked near the defendant’s car, and waited until she emerged from the store. They then followed her to her car. The balance of the witness’ testimony essentially corroborated that of Paul Adams as to the confrontation and arrest of the defendant. Mr. Lundell further stated that only he was authorized to allow merchandise to be taken from the store by a customer without payment, and that he had never given the defendant such permission. At the conclusion of his testimony on direct examination, the leisure suit, ladies’ pant suit, and the dress were all admitted into evidence.

The State called as its third witness Vernon DeMoss, who on November 26, 1975, was a detective with the Oklahoma City Police Department, as he had been for over six years. On that date, the witness interviewed the defendant while she was incarcerated in the Oklahoma City jail. After advising the defendant of her rights, Detective DeMoss asked her if she had in fact taken the items from the store, and according to Detective DeMoss, the defendant admitted having taken the merchandise.

Merlen Thomas, the last witness called by the State, testified that on December 9, 1975, while he was employed as a probation officer with the Department of Corrections, he had occasion to speak with the defendant. After being informed of her rights, she admitted having taken all of the previously described articles.

At the conclusion of Mr. Thomas’ testimony the State rested.

Defense counsel’s demurrer to the evidence was overruled by the court, and the defense rested without presenting any evidence.

After closing arguments, the court found the defendant guilty, basing its findings on the consent given to Mr. Lundell to search the defendant’s purse as well as the statements made to the two last witnesses. The court disregarded the first search of the car conducted by Paul Adams, because the court thought Adams had lacked probable cause to look inside the defendant’s vehicle.

For her first assignment of error, the defendant alleges that the search of her [572]*572automobile was unlawful and that, therefore, evidence resulting from it should not have been admitted. The defendant briefs the proposition that the lower court should be affirmed in its decision not to consider evidence from the original search. However, as the lower court determined that the evidence gained by the search of defendant’s car was inadmissible, and should not be considered, defendant cannot have been prejudiced by the decision, and this Court need not discuss the issue.

Defendant’s second assignment of error is that her arrest was illegal and improper and that, therefore, the evidence found on defendant’s person should have been suppressed. Title 22 O.S.1971, § 1343, provides that:

“Any merchant, his agent or employee, who has reasonable grounds or probable cause to believe that a person has committed or is committing a wrongful taking of merchandise or money from a mercantile establishment, may detain such person in a reasonable manner for a reasonable length of time for all or any of the following purposes:
“(a) Conducting an investigation, including reasonable interrogation of the detained person, as to whether there has been a wrongful taking of such merchandise or money;
“(b) Informing the police or other law enforcement officials of the facts relevant to such detention;

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White v. State, 1977 OK CR 332, 572 P.2d 569, 1977 Okla. Crim. App. LEXIS 669 (Okla. Ct. App. 1977).

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