Thompson v. the State , 332 Ga. App. 204 ( 2015 )

WHOLE COURT
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
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http://www.gaappeals.us/rules/
March 30, 2015
In the Court of Appeals of Georgia
A14A2161. THOMPSON v. THE STATE.
BOGGS, Judge.
A jury convicted Harold Wesley Thompson of felony shoplifting, aggravated
assault, and possession of methamphetamine. Based on the drug possession
conviction and its determination that Thompson was a recidivist, the trial court
sentenced Thompson to 30 years, with the first 10 years in confinement without the
possibility of parole and the remainder on probation. Thompson filed a motion for
new trial, which the trial court denied. On appeal, Thompson contends that the trial
court erred in admitting a store shoplifting report under the business record exception
to hearsay; that there was insufficient evidence to convict him of felony shoplifting
and aggravated assault; that his sentence for possession of methamphetamine
constituted cruel and unusual punishment; and that the trial court erred in sentencing
him as a recidivist. For the following reasons, we affirm.
Following a criminal conviction, we view the evidence in the light most
favorable to the verdict. Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012).
So viewed, the evidence showed that on November 28, 2010, Thompson entered a
Costco store in Catoosa County. The store’s loss prevention officer, who was
responsible for monitoring customers for suspicious activity, saw Thompson pick up
a camera and a video game console and take them to a different area of the store.
Thompson then pulled out a “razor blade or box cutter type knife,” used it to remove
the camera from its packaging, and placed the camera in his pants pocket. Thompson
also removed the game console from its box, hid the box in a suitcase on a shelf in
the store, and shoved the game console down into the waistband of his pants. The
officer notified the assistant manager and called the police about the suspected
shoplifter.
The loss prevention officer followed Thompson to the exit of the store, where
the assistant manager was waiting and observed the encounter. When Thompson
approached the exit door, the officer confronted him and ordered him not to leave.
Thompson pushed through the officer, who fell to the ground with Thompson on top
2
of him; with both of them falling outside the store. Thompson then jumped up, took
a few steps forward into the parking lot, and pulled a knife out of his pocket when he
was “maybe 15 feet” from the officer. He waived the knife towards the officer “[i]n
a threatening manner.” When the officer saw the knife, he stepped back, “put his
hands back,” and stopped attempting to physically apprehend Thompson. Thompson
then took off running across the parking lot.
Police who had responded to the 911 call saw Thompson running through the
store parking lot. The loss prevention officer and assistant manager stepped outside
of the store, pointed at Thompson, who the police then ordered to the ground and
apprehended. After speaking with the store employees, a police lieutenant searched
Thompson and found the camera in his pants pocket and the game console in the
waistband of his pants, as well as a “razor knife,” a glass pipe containing
methamphetamine, a small digital scale, and a waterproof container with “plastic
baggy squares” inside it. The police lieutenant later testified that, based on his
training and experience, the type of container and “plastic baggy squares” he found
on Thompson were commonly used for storing and transporting illegal drugs.
Thompson was indicted on one count of felony shoplifting, two counts of
aggravated assault, and one count of possession of methamphetamine. The store’s
3
loss prevention officer did not testify at trial. Rather, the State called the store’s
assistant manager, who testified to what he had observed in the exit area of the store
between Thompson and the loss prevention officer.1 Through the assistant manager,
the State also introduced, over a defense hearsay objection, a report prepared by the
loss prevention officer on the day of the shoplifting incident that, among other things,
identified Thompson as the suspect, provided a physical description of him, and listed
the stolen items and their prices. The trial court allowed the admission of the loss
prevention report under the business records exception to hearsay. Additionally, the
State called as witnesses the police lieutenant involved in Thompson’s apprehension
and a forensic chemist from the State crime lab who confirmed that the pipe found on
Thompson contained methamphetamine. After the State rested, Thompson elected not
to testify and did not call any defense witnesses.
The trial court directed a verdict on one of the two aggravated assault counts,
and the jury convicted Thompson on the remaining counts. At the sentencing hearing,
the State introduced certified copies of Thompson’s prior convictions in aggravation
1
The assistant manager also testified to what the loss prevention officer said
he had observed while following Thompson around the store. Thompson waived any
hearsay objection to this testimony from the assistant manager by failing to object on
that ground at trial, and the testimony thus was “legal evidence and admissible.”
OCGA § 24-8-802.
4
of punishment. Because Thompson had a prior conviction for possession of a
Schedule II narcotic, the sentencing range for his possession of methamphetamine
conviction was imprisonment “for not less than five years nor more than 30 years”
based on the sentencing statute in effect at the time of his offense. OCGA § 16-13-30
(c) (2010). In light of its finding that Thompson was a recidivist under OCGA § 17-
10-7 (c), the trial court sentenced him to 30 years for possession of
methamphetamine, with the first 10 years served in confinement without the
possibility of parole and the remainder on probation.2 This appeal followed.
1. Thompson contends that the trial court committed reversible error in
admitting the loss prevention report under the business records exception to hearsay,
OCGA § 24-8-803 (6).3 Because the jury trial in this case was conducted in April
2
On the aggravated assault count, the trial court sentenced Thompson to 20
years, to serve 10 years in confinement and the remainder on probation, and on the
felony shoplifting account, the court sentenced him to serve 10 years in confinement.
Both sentences ran concurrent to Thompson’s 30-year sentence for possession of
methamphetamine.
3
Thompson also argues that the admission of the loss prevention report
violated his Sixth Amendment right to confrontation under Crawford v. Washington,
541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004). However, Thompson waived any
objection under Crawford by failing to object on this ground at trial. See Melendez-
Diaz v. Massachusetts, 557 U. S. 305, 314, n. 3 (129 SCt 2527, 174 LE2d 314)
(2009); Lane v. State, 324 Ga. App. 303, 314 (6) (750 SE2d 381) (2013).
5
2013, Georgia’s new Evidence Code applies. See Ga. Laws 2011, p. 99, § 101. Under
the new Evidence Code, business records are admissible as an exception to hearsay
if certain criteria are satisfied:
Unless the source of information or the method or circumstances of
preparation indicate lack of trustworthiness and subject to the provisions
of Chapter 7 of this title,[4] a memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or
diagnoses [is admissible], if (A) made at or near the time of the
described acts, events, conditions, opinions, or diagnoses; (B) made by,
or from information transmitted by, a person with personal knowledge
and a business duty to report; (C) kept in the course of a regularly
conducted business activity; and (D) it was the regular practice of that
business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other
qualified witness or by certification that complies with paragraph (11)
or (12) of Code Section 24-9-902 or by any other statute permitting
certification. . . .
OCGA § 24-8-803 (6).
“This Court reviews a trial court’s ruling on the admission of evidence under
an abuse of discretion standard.” (Citation and punctuation omitted.) Gant v. State,
313 Ga. App. 329, 335 (2) (721 SE2d 913) (2011); see also Rock, supra, 922 F2d at
4
Chapter 7 addresses “Opinions and Expert Testimony.”
6
277 (II) (A). “A proper application of the abuse-of-discretion review recognizes ‘the
range of possible conclusions the trial judge may reach,’ and that there will often be
occasions in which we will affirm the evidentiary ruling of a trial court ‘even though
we would have gone the other way had it been our call.’” (Citation, punctuation and
footnote omitted.) Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261)
(2014).
In the present case, the police lieutenant testified that after Thompson was
apprehended, he returned the stolen camera and game console to the store’s loss
prevention officer so that he could complete his report and check the prices of the
items. The loss prevention officer at that point prepared the loss prevent report in
which he identified Thompson by his first and middle name as the shoplifter,
provided a physical description of Thompson, listed the assistant manager as a
witness, and identified the stolen items and their prices. Thompson argues that the
loss prevention report did not qualify under the business records exception because
it was prepared in anticipation of prosecution, and “did not have the degree of
trustworthiness associated with business records.” We disagree.
It is true that a record prepared in anticipation of prosecution is not made in the
regular course of business. Cf. Rackoff v. State, 281 Ga. 306, 309 (2) (637 SE2d 706)
7
(2006). But the type of report created by Costco cannot be used by Costco to
anticipate prosecution, because the parties to the prosecution are the State and the
shoplifting suspect. See, e.g., Brown v. State, 274 Ga. 31, 33-34 (1) (549 SE2d 107)
(2001) (police report prepared in State prosecution for possession of cocaine). While
Costco may have an interest in seeing that a shoplifting suspect is prosecuted and
incarcerated and thus no longer able to shoplift from its store, it simply is not a party
to any potential prosecution and cannot anticipate what action the State may take, as
not all shoplifters are apprehended and not all apprehended shoplifters are prosecuted.
Even without considering Costo’s non-party status, Costco did not make the
report at the request of the State. See United States v. Blackburn, 992 F2d 666, 670
(7th Cir. 1993) (report prepared at request of FBI in robbery case). Indeed, the officer
on the scene testified that he was not sure that Costco was “familiar with what we
needed for that criminal case.” Since Costco prepares a loss prevention report in
every instance of shoplifting, concerns about reliability and trustworthiness are
minimized. Therefore, under the facts of this case, Costco’s report was not made in
anticipation of prosecution and is therefore admissible.
The dissent cites Professor Milich for the proposition that “[i]ncident reports
prepared by a business after an accident or other event likely to lead to litigation are
8
normally inadmissible as business records, even if the business routinely prepares
such records in such circumstances.” (Emphasis supplied.) Paul S. Milich, Georgia
Rules of Evidence, § 19:11 pp. 760-761 (2014-2015). Milich relies upon Palmer v.
Hoffman, 318 U. S. 109 (63 SCt 477, 87 LE2d 645) (1943), for this conclusion. The
Palmer Court considered whether the report regularly recorded was for “the
systematic conduct of the enterprise.” Id. at 114 (I). Palmer was decided before the
formulation and adoption of the Federal Rules of Evidence. See BP Amoco Chemical
Co. v. Flint Hills Resources, LLC, 2009 U.S. Dist. LEXIS 131268 at 17 (III) (N.D.
Illinois 2009). The Palmer Court analyzed the business record standard found in 28
U.S.C. § 695, which contained language similar to the language of OCGA § 24-8-803
(6), but required only that the record was “made in the regular course of any
business.” Palmer, supra, 318 U. S. at 111 (I) n.1. OCGA § 24-8-803 (6) (C) provides
that the record may be admissible if “kept in the course of a regularly conducted
business activity.” The statute incorporated language equivalent to the “systematic
conduct of the enterprise” language in Palmer.
The Palmer Court held that the basis for the requirement that records are made
for the “systematic conduct of the enterprise” is the “probability of trustworthiness
of records because they were routine reflections of the day to day operations of a
9
business.” Id. at 113-114 (I). It explained that to be admissible, and as now required
by OCGA § 24-8-803 (6) (C), the regularly produced reports must have something
to do with the management or operation of the business. Id. at 113 (I). The court
concluded that a statement made by a train engineer during an interview by an
assistant superintendent and a representative of the state public utilities commission
about a grade crossing accident was calculated for use in court, and not for the
business of railroading. Id. at 112-114 (I). Thus, it lacked the reliability inherent in
a record made for the systematic conduct of an enterprise and was therefore
inadmissible.
As noted by Professor Milich, the rule generally prohibiting the admission of
an incident report is not absolute. Certainly the day-to-day operations of a retail
business include preventing the loss of the merchandise it sells and keeping a record
of that merchandise, as the title of the report suggests.5 The inclusion of other
5
The dissent argues that the State failed to come forward with evidence that the
reports were “made for the systematic conduct of the business as a business” or as
required under the new Evidence Code, “kept in the course of a regularly conducted
business activity.” But the report itself and the testimony of the records custodian
satisfy this requirement. Costco is in the business of selling merchandise, and the loss
prevention report is a record of merchandise lost by shoplifting that is entered into the
business filing system. Indeed, Costco employs a loss prevention agent. The report
was therefore “kept in the course of a regularly conducted business activity,”
satisfying the third foundational requirement of OCGA § 24-8-803 (6) (C).
10
information, such as the identity of any witnesses to a shoplifting incident and
whether police were called to the scene, does not alter the analysis here. As Professor
Milich explains further, “[t]he more routine the type of record involved, the more
likely the business has developed, though repetition and experience, a reliable system
for creating the records.” Milich, supra at § 19:11 p. 760. Moreover, “if the report is
routinely prepared in a response to an event that normally would not lead to litigation,
but in this instance subsequently does, the report may be admissible under the
business record exception.” Milich, supra at § 19:11 pp. 760-761. See, e. g., Hill
Aircraft & Leasing Corp. v. Cintas Corp. 169 Ga. App. 747, 749-750 (2) (315 SE2d
263) (1984) (physical precedent only) (memorandum made by employer concerning
facts of employees’ termination admissible as routine business entry).6 The routinely
prepared report here meets these criteria.
Finally, we conclude that because the foundational elements of OCGA § 24-8-
803 (6) were satisfied here, “a rebuttable presumption of trustworthiness of the
evidence is created.” Ronald L. Carlson & Michael Scott Carlson, Carlson on
6
While technically physical precedent only, Hill Aircraft & Leasing Corp.,
supra, has been cited repeatedly with approval and without notation of its precedential
status. See, e. g., Jerkins v. Jerkins, 300 Ga. App. 703, 707 (3) (686 SE2d 324)
(2009).
11
Evidence, p.546 (3d ed. 2015).7 And, as the opponent to the admission of the
evidence, Thompson was required to rebut this presumption, which he failed to do.
The trial court therefore did not err in allowing the admission of the loss prevention
report under the business record exception to the hearsay rule.
Because we conclude that the loss prevention report was properly admitted, we
need not address Thompson’s claim that insufficient evidence supports this count
because the report was the sole source of value for the felony shoplifting conviction.
See OCGA § 16-8-14 (b) (2).
2. Thompson further contends that the evidence was insufficient to support his
conviction for aggravated assault. We disagree.
A person may be found guilty of aggravated assault if the State
proves (1) an assault and (2) aggravation by use of any object, device,
or instrument which, when used offensively against a person, is likely
to or actually does result in serious bodily injury. The State may prove
an assault by showing that the defendant committed an act that placed
the victim in reasonable apprehension of immediately receiving a violent
injury.
7
As noted by Carlson, OCGA § 24-8-803 (6) closely tracks Federal Rule 803
(6). Carlson & Carlson, supra at 543.
12
(Citations and punctuation omitted.) Myrick v. State, 325 Ga. App. 607, 608 (1) (754
SE2d 395) (2014). See OCGA §§ 16-5-20 (a) (2) (2010);16-5-21 (a) (2) (2010). The
aggravated assault count of the indictment averred in relevant part that Thompson
made an assault upon the store’s loss prevention officer “with a Sheffield razor knife,
an object which when used offensively against a person is likely to or actually does
result in serious bodily injury.”
At trial, the store’s assistant manager testified regarding the encounter between
Thompson and the loss prevention officer that he witnessed in the exit area of the
store. The assistant manager testified that, after pushing down the loss prevention
officer and falling on top of him, Thompson jumped up, took a few steps forward, and
pulled a knife out of his pocket. According to the assistant manager, Thompson held
the knife out in front of him and waived it towards the officer “[i]n a threatening
manner,” and when the officer saw the knife, he stepped back, “put his hands back,”
and stopped trying to physically apprehend Thompson. Thompson then took off
running through the parking lot. The police lieutenant who subsequently apprehended
Thompson described the knife found on his person as a “razor knife,” and the State
introduced the knife into evidence. This combined testimony was sufficient to sustain
Thompson’s conviction for aggravated battery. See, e. g., Hartley v. State, 299 Ga.
13App. 534, 534-535, 537 (1) (683 SE2d 109) (2009). In reaching this conclusion, we
note that the victim of the aggravated assault, the loss prevention officer, was not
required to testify to sustain Thompson’s conviction, given the eyewitness testimony
of the assistant manager. See, e. g., Bostic v. State, 294 Ga. 845, 847 (1) (757 SE2d
59) (2014) (noting that “the failure of a victim of an assault to testify at trial does not
necessarily result in the evidence against the defendant being insufficient”); Petro,
327 Ga. App. at 257-258 (1) (a) (although victim did not testify, testimony of
eyewitness who saw the encounter was sufficient to sustain aggravated assault
conviction).
Thompson emphasizes that the assistant manager testified that Thompson was
“maybe 15 feet” from the loss prevention officer when he waived the knife towards
him in a threatening manner, and argues that, as a result, the officer was not in
reasonable apprehension of immediately receiving a violent injury as a matter of law.
We disagree. To prove that a victim had a reasonable apprehension of immediately
receiving a violent injury,
there need not be an actual present ability to commit a violent injury
upon the person assailed, but if there be such a demonstration of
violence, coupled with the apparent ability to inflict the injury, so as to
cause the person against whom it is directed reasonably to fear the injury
14
unless he retreat to secure his safety, and under such circumstances he
is compelled to retreat to avoid an impending danger, the assault is
complete, though the assailant may never have been within actual
striking distance of the person assailed.
(Citation and punctuation omitted.) King v. State, 213 Ga. App. 268, 269 (444 SE2d
381) (1994). Moreover, “[t]he focus of a reasonable apprehension of harm is on the
apprehension of the victim, and it is for the factfinder to determine whether the
victim’s apprehension was reasonable.” (Citations and punctuation omitted.) Bearden
v. State, 291 Ga. App. 805, 807 (662 SE2d 736) (2008).
As noted above, the assistant manager testified that in response to Thompson
brandishing the razor knife, the loss prevention officer stepped back, put his hands
back, and stopped trying to physically apprehend Thompson. Hence, the evidence,
construed in favor of the prosecution, showed that even assuming Thompson was not
in actual striking distance of the loss prevention officer, the only reason for that
distance was that he brandished the knife in a manner that caused the officer to stop
moving towards Thompson out of fear for his safety. Under these circumstances, a
rational jury could find that the loss prevention officer was placed in reasonable
apprehension of immediately receiving a violent injury, even if Thompson was not
within actual striking distance with the knife. See King, 213 Ga. App. at 269.
15
3. Thompson also contends that the trial court’s decision to sentence him to 30
years for possession of methamphetamine, with the first 10 years served in
confinement without the possibility of parole and the remaining 20 years on
probation, constitutes cruel and unusual punishment under the Eighth Amendment to
the United States Constitution. We do not agree.
The Eighth Amendment to the United States Constitution, applied to the states
through the Fourteenth Amendment, provides: “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.” A
punishment is cruel and unusual “in the rare circumstance where the defendant’s
sentence is ‘grossly disproportionate’ to the underlying crime.” Middleton v. State,
313 Ga. App. 193, 194 (721 SE2d 111) (2011). See Graham v. Florida, 560 U.S. 48,
60 (II) (130 SCt. 2011, 176 LE2d 825) (2010).
With respect to whether a sentence is grossly disproportionate, courts
must begin by comparing the gravity of the offense and the severity of
the sentence. If this threshold comparison does not create an inference
of gross disproportionality, the Eighth Amendment analysis extends no
further. It is the rare case in which a threshold comparison of the crime
committed and the sentence imposed leads to an inference of gross
disproportionality.
16
(Citations and punctuation omitted.) Jones v. State, 325 Ga. App. 845 (1) (755 SE2d
238) (2014). If the defendant’s sentence falls within the statutory range of punishment
for the crime set by the legislature, a presumption arises that the sentence does not
violate the Eighth Amendment, and the “presumption remains until a defendant sets
forth a factual predicate showing that such legislatively authorized punishment was
so overly severe or excessive in proportion to the offense as to shock the conscience.”
(Citation omitted.) Cuvas v. State, 306 Ga. App. 679, 683 (2) (703 SE2d 116) (2010).
Thompson concedes that his sentence fell within the statutory range for
possession of methamphetamine under the sentencing provision applicable to a
second drug possession conviction that was in effect at the time he committed the
current offense. See OCGA § 16-13-30 (c) (2010) (authorizing “imprisonment for not
less than five years nor more than 30 years” for second or subsequent convictions of
certain drug offenses). But Thompson argues that his sentence nevertheless was
grossly disproportionate to the offense, given that the General Assembly subsequently
amended OCGA § 16-13-30 to reduce the sentence to one-to-three years for the
amount of methamphetamine he possessed in this case. See OCGA § 16-13-30 (c) (1)
(2014). Quoting from Humphrey v. Wilson, 282 Ga. 520, 528 (3) (c) (652 SE2d 501)
(2007), Thompson argues that “no one has a better sense of the evolving standards
17
of decency in this State than our elected representatives,” and that the statutory
amendments to OCGA § 16-13-30 thus “reflect a decision by the people of this State
that the severe felony punishment imposed on [defendants under the prior law] makes
no measurable contribution to acceptable goals of punishment.” While we are
sympathetic to Thompson’s argument here, we are constrained to uphold the sentence
existing at the time of his offense.
In Humphrey, 282 Ga. at 520-521 (1), the defendant received an 11-year
sentence, with 10 years to serve in confinement and 1 year on probation, for
aggravated child molestation for engaging in consensual oral sex when he was 17
years old and the victim was 15 years old. Relying in part on the General Assembly’s
2006 amendment to the aggravated child molestation statute, which would have
afforded the defendant misdemeanor punishment if it had been enacted before he
committed his crime, our Supreme Court held that the defendant’s sentence was
grossly disproportionate to the offense and thus constituted cruel and unusual
punishment. Id. at 527-530 (3) (c).8
8
We applied Humphrey in another aggravated child molestation case involving
nonviolent sexual contact between teenagers. See Morris v. State, 300 Ga. App. 355,
358-359 (685 SE2d 348) (2009).
18
Subsequently, however, in Bradshaw v. State, 284 Ga. 675, 678 (2) (a) (671
SE2d 485) (2008), our Supreme Court rejected an expansive reading of Humphrey
and “decline[d] to engraft onto every statutory change enacted by the General
Assembly an interpretation that the legislature is thus making a pronouncement of
constitutional magnitude.” (Citation and punctuation omitted.) The Supreme Court
concluded that the most recent legislative pronouncement on a punishment “does not
preclude or in any manner limit [a court’s] evaluation of [a defendant’s] sentence to
determine whether it comports with the constitutional prohibition against cruel and
unusual punishment.” (Citation and punctuation omitted.) Id. The Court then went on
to examine the gravity of the offense and the severity of the sentence to determine
whether the case raised a threshold inference of gross disproportionality. Id. at 679-
680 (2) (b), (c). Thus, when read together, Humphrey and Bradshaw make clear that
a statutory amendment by the legislature is one factor to consider as part of a court’s
analysis into gross disproportionality, but it is not dispositive; courts still must
examine the gravity of the offense and the severity of the sentence to determine
whether a threshold inference of gross disproportionality has been raised.
Applying these principles to the present case, we conclude that Thompson has
failed to show that this is one of those rare cases that raises a threshold inference of
19
gross disproportionality, even though the General Assembly has amended OCGA §
16-13-30 to reduce the range of punishment for possession of methamphetamine.
Notably, while the statute has been amended to reduce the range of punishment, the
General Assembly included a savings clause making clear its intention to maintain
the sentencing structure for crimes committed prior to the effective date of any
amendment. See Ga. L. 2012, p. 899, § 9-1(b)/HB 1176. Therefore, the General
Assembly itself has made clear that it did not intend for the changes to OCGA § 16-
13-30 reducing the range of punishment to serve as “a pronouncement of
constitutional magnitude” or “to preclude or in any manner limit” our evaluation of
a defendant’s sentence under the old version of the statute “to determine whether it
comports with the constitutional prohibition against cruel and unusual punishment.”
(Citation and punctuation omitted.) Bradshaw, 284 Ga. at 678 (2) (a).
Here, given the fact that Thompson faced a potential sentence of 30 years in
confinement, his sentence of 10 years in confinement followed by 20 years on
probation does not raise a threshold inference of gross disproportionality.
Accordingly, Thompson has failed to demonstrate that his sentence constitutes cruel
and unusual punishment under the Eighth Amendment. See Bragg v. State, 296 Ga.
App. 422, 425-426 (674 SE2d 650) (2009) (defendant’s sentence to 20 years, with 10
20
years in confinement and the remainder on probation, for child molestation, did not
raise threshold inference of gross disproportionality, despite certain legislative
amendments to the statute in question).
4. Lastly, Thompson contends that the trial court erred in sentencing him as a
recidivist under OCGA § 17-10-7 (c). According to Thompson, five of his prior
felony cases should have been considered “consolidated for trial” under OCGA § 17-
10-7 (d), thereby rendering his recidivist designation improper. We discern no
reversible error by the trial court.
OCGA § 17-10-7 (c) states that any person convicted of three prior felonies,
upon conviction of a fourth felony, must “serve the maximum time provided in the
sentence of the judge . . . and shall not be eligible for parole until the maximum
sentence has been served.” But if two or more of the prior felony convictions were
“consolidated for trial,” they must be treated as one prior conviction for purposes of
recidivist sentencing. OCGA § 17-10-7 (d). “In determining whether separate
offenses should be considered ‘consolidated for trial’ for purposes of recidivist
sentencing, we look to the totality of the circumstances.” (Citations and footnote
omitted.) Stone v. State, 245 Ga. App. 728, 728 (538 SE2d 791) (2000).
21
“If separate offenses are charged under separate charging instruments and a
defendant is sentenced under separate orders, the offenses are generally not
consolidated for trial within the meaning of OCGA § 17-10-7 (d).” (Citation and
punctuation omitted.) Baker v. State, 306 Ga. App. 99, 103 (2) (701 SE2d 572)
(2010). If the prior offenses “were the result of separate indictments and a separate
order of sentence was entered on each indictment,” there is no consolidation even if
the sentences for the offenses were entered on the same day and were run concurrent
to one another. Philmore v. State, 263 Ga. 67, 70 (6) (428 SE2d 329) (1993).
At the sentencing hearing, the State introduced certified copies of the
indictment, guilty pleas, and sentences received by Thompson for multiple prior
felony offenses that were charged in six different cases, hereinafter referred to as the
Drug Possession Case and the Five Theft Cases. In the Drug Possession Case,
Thompson pled guilty to possession of methadone and was sentenced in May 2011.
In the Five Theft Cases, Thompson pled guilty on the same day in May 1998 to
multiple theft-related offenses. Each of the Five Theft Cases involved different
incidents involving different victims and different property and had its own
accusation or indictment. The sentences entered in the Five Theft Cases were
documented on separate sentencing orders.
22
Thompson argues that his convictions in the Five Theft Cases should have been
treated as consolidated for trial and thus treated as one prior felony offense.
Thompson emphasizes that, although the trial court entered separate sentencing
orders for the Five Theft Cases, the sentencing order entered in the Fifth Theft Case
includes a provision under “other conditions of probation” that addresses restitution
that must be paid by Thompson for property that was the subject of the Third and
Fourth Theft Cases. Additionally, the sentencing order entered in the Second Theft
Case incorporates by reference all of the conditions of probation imposed in the Fifth
Theft Case.
The First Theft Case had a separate indictment and sentencing order from the
other Theft Cases and was not referenced in the sentencing orders entered in the other
Theft Cases. Consequently, the First Theft Case could be treated as a separate prior
felony offense from the other four Theft Cases for purposes of recidivist sentencing.
See Philmore, 263 Ga. at 69 (6). Therefore, even if we were to assume without
deciding, that the trial court erred in not treating the Second, Third, Fourth, and Fifth
Theft Cases as consolidated for trial, the Theft Cases still could provide two of the
three prior felony offenses necessary for the imposition of a recidivist sentence under
OCGA § 17-10-7 (c).
23
Thompson’s conviction in the Drug Possession Case provided the third prior
felony offense. Accordingly, any error by the trial court in failing to treat four of the
Theft Cases as consolidated for trial under OCGA § 17-10-7 (d) was harmless, given
that, even with the error, there still were three prior felony offenses authorizing
recidivist sentencing under OCGA § 17-10-7 (c). See Williams v. State, 326 Ga. App.
418, 423 (8) (756 SE2d 650) (2014) (even if trial court erred in determining number
of prior felonies, error was harmless because there still were a sufficient number of
prior felonies to authorize defendant’s recidivist sentence). It follows that Thompson
was properly sentenced as a recidivist.
Judgment affirmed. Ellington, P. J., Dillard and Branch, JJ., concur. Doyle,
P. J., concurs in Divisions 2, 3 and 4 and in the judgment . Barnes, P. J., and Miller,
J., concur in Divisions 2-5 and dissents in Division 1.
24
A14A2161. THOMPSON v. THE STATE.
BARNES, Presiding Judge, concurring in part and dissenting in part.
Because the store shoplifting report relied upon by the prosecution was
prepared in anticipation of litigation, the trial court erred in admitting it under the
business record exception to hearsay. And admission of the shoplifting report harmed
Thompson because it provided the only evidence of the value of the items stolen from
the store to support his felony shoplifting conviction. We therefore should reverse
Thompson’s conviction for felony shoplifting. Because the majority concludes
otherwise, I respectfully dissent to Division 1 of the majority opinion.1
Under Georgia’s new evidence code, a document is admissible under the
business record exception to hearsay if, among other things, the document is of the
type routinely made in the regular course of business. OCGA § 24-8-803 (6). But
it is well-established that a record prepared in anticipation of litigation is not made
in the “regular course” of business and lacks the requisite degree of reliability and
trustworthiness for admission under the business record exception. See Stewart v.
State, 246 Ga. 70, 74 (3) (268 SE2d 906) (1980) (forms containing payroll
1
I concur fully in Divisions 2-5.
information inadmissible as business records because prepared in anticipation they
would be used as part of government investigation and litigation); Goss v. Mathis,
188 Ga. App. 702 (373 SE2d 807) (1988) (documents providing estimation of
expenses and value of labor inadmissible as business records because prepared in
anticipation of litigation); Reach Out v. Capital Assoc., 176 Ga. App. 585, 585-586
(1) (336 SE2d 847) (1985) (report listing outstanding rental payments and amounts
owed on lease inadmissible as business record because prepared in anticipation of
litigation).2 Thus, “[i]ncident reports prepared by a business after an accident or other
event likely to lead to litigation are normally inadmissible as business records.” Paul
S. Milich, Ga. Rules of Evidence, § 19:11, p. 758 (2013–2014 ed.). See Palmer v.
Hoffman, 318 U.S. 109, 113-115 (63 SCt 477, 87 LE 645) (1943) (accident report
prepared by railroad after train accident was inadmissible as business record because
“those reports are not for the systematic conduct of the enterprise as a railroad
business” but rather “are calculated for use essentially in the court”); Scheerer v.
2
See also United States v. Arias-Izquierdo, 449 F.3d 1168, 1183-1184 (11th
Cir. 2006) (report documenting airline passenger information was inadmissible as
business record because prepared in anticipation of trial); Noble v. Alabama Dept. of
Environmental Mgmt., 872 F.2d 361, 366-367 (11th Cir. 1989) (letter with
attachments inadmissible as business record because prepared in anticipation of
litigation).
2
Hardee’s Food Sys., 92 F.3d 702, 706-707 (8th Cir. 1996) (incident report prepared
by restaurant after slip-and-fall accident was inadmissible as business record); Rock
v. Huffco Gas & Oil Co., 922 F.2d 272, 279 (5th Cir. 1991) (accident reports and logs
documenting plaintiff’s injuries were inadmissible as business records). Incident
reports are excluded from the business record exception under the rationale that they
are prepared by a business “with the knowledge that the incident could result in
litigation” and therefore are susceptible to manipulation, Scheerer, 92 F.3d at 706-
707, and are not “made for the systematic conduct of the business as a business” but
rather have their “primary utility . . . in litigating.” Palmer, 318 U.S. at 112, 114.
While we review a trial court’s decision to admit or exclude evidence under an
abuse-of-discretion standard, Owens v. State, 329 Ga. App. 455, 458 (1) (b) (765
SE2d 653) (2014), a trial court’s discretion is not without limits. See Williams v.
State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014) (noting that abuse-of-
discretion standard “does not permit a ‘clear error of judgment’ or the application of
‘the wrong legal standard’”) (footnote omitted). We have not hesitated to reverse a
trial court that erroneously admits a document under the business record exception
to the hearsay rule, where the document was prepared in anticipation of litigation
rather than in the regular course of business. See, e.g., Reach Out, 176 Ga. App. at
3
585-586 (1). This is because the presumption of reliability and trustworthiness
normally afforded business records “collapses when any person in the process is not
acting in the regular course of business.” (Citation and punctuation omitted). Rock v.
Huffco Gas & Oil Co., 922 F.2d 272, 279 (5th Cir. 1991).
In the present case, the evidence introduced at trial reflects that after the police
lieutenant apprehended Thompson in the store parking lot, the lieutenant returned the
stolen camera and game console to the store’s loss prevention officer so that the
officer could “complete his report and check the prices on the items, the things that
are necessary for that case file.” The loss prevention officer at that point prepared a
report about the shoplifting incident (the “Shoplifting Report”). He checked the box
at the top of the form for “shoplifting,” listed the time and date of the incident,
identified Thompson by name as the shoplifter, provided a physical description of
Thompson, listed the assistant manager as a witness, and identified the stolen items
and their prices. The Shoplifting Report also included a section entitled “Disposition
Information” in which the loss prevention officer listed the time the police were
called, the time they arrived on the scene, the time Thompson was detained by the
police, the name of the responding police officer, the police officer’s identification
number and telephone number, and the police department case number. The loss
4
prevention officer checked a box on the Shoplifting Report indicating that the
returned merchandise would be “retained as evidence at warehouse,” and the bottom
of the report included an instruction for the person completing it to provide a “copy
to police department.”
Given this record, the evidence shows that the loss prevention officer prepared
the Shoplifting Report to memorialize the facts surrounding the shoplifting incident
with the anticipation that Thompson would be criminally prosecuted, and, therefore,
that the report was prepared “in anticipation of litigation” such that it could not
qualify as a business record. See Scheerer, 92 F.3d at 707 (concluding that the
“incident report shows on its face that it was prepared in anticipation of litigation” in
light of the information sought in the report and the directions on the report to the
employee completing it). And although the store’s assistant manager testified that
reports were routinely prepared by loss prevention agents whenever there was a
shoplifting incident, his testimony did not transform the Shoplifting Report into an
admissible business record. See Milich, supra, § 19:11, p. 758 (incident reports
excluded “even if the business routinely prepares such records in such
circumstances”). See also Palmer, 318 U.S. at 113 (noting that “the fact that a
company makes a business out of recording its employees’ versions of their accidents
5
does not put those statements in the class of records made ‘in the regular course’ of
the business”); Reach Out, 176 Ga. App. at 585-586 (1) (“Although the appellee’s
collection manager uses the appropriate legal incantation in his description of the
referral status report, the report fails to qualify as a business record[.] Rather, the
report was an ‘in-house’ information summary prepared in anticipation of
litigation.”). Accordingly, the trial court erred in admitting the Shoplifting Report as
a business record.
In reaching the opposite conclusion, the majority maintains that Thompson
failed to rebut “the presumption of trustworthiness” afforded the Shoplifting Report.
However, because the Shoplifting Report was prepared in anticipation of litigation,
it was not made in the “regular course” of business. See Echo Acceptance Corp. v.
Household Retail Servs., 267 F3d 1068, 1091 (10th Cir. 2001) (noting that “one who
prepares a document in anticipation of litigation is not acting in the regular course of
business.”). One of the foundational elements of OCGA § 24-8-803 (6) thus was not
satisfied, and no presumption was created. See Ronald & Michael Scott Carlson,
Carlson on Evidence, p.546 (3d ed. 2015) (presumption of trustworthiness applies
“[w]hen a party offers documentary evidence under Rule 803 (6) and establishes the
requisite foundation for its admission”) (emphasis supplied). See also Rock, 922 F.2d
6
at 279 (presumption of trustworthiness “collapses” when document not prepared in
the regular course of business) (citation and punctuation omitted); AAMCO
Transmissions v. Baker, 591 F. Supp. 2d 788, 798 (E.D. Pa. 2008) (holding that “the
assumption of reliability, accuracy, and trustworthiness underlying Rule 803 (6) [did]
not apply” where the party seeking admission of the memorandum at issue “failed to
show [that it was created] in the course of regularly conducted business activity, and
not in anticipation of litigation”).
The majority also places undue emphasis on the fact that the store was not a
party to the criminal prosecution. While not a party to the criminal prosecution, a
business, as the majority concedes, still has “an interest in seeing that a shoplifting
suspect is prosecuted and incarcerated and thus no longer able to shoplift from its
store.” Given the business’s interest in the success of the prosecution, the same
trustworthiness and reliability concerns arise, irrespective of whether the litigation
is civil or criminal. See, e.g., United States v. Blackburn, 992 F.2d 666, 670 (7th Cir.
1993) (treating documents prepared by business in anticipation of criminal
prosecution of robbery suspect as raising the same concerns over trustworthiness and
reliability as other documents “made in anticipation of litigation”). This is
particularly true where, as in this case, the business initiates contact with the police
7
and has the shoplifting suspect arrested. Because the business could face civil
liability for malicious prosecution if the criminal prosecution is later dismissed, the
business has a vested interest in ensuring that the State succeeds in its prosecution of
the suspect.
Finally, the majority glosses over the incomplete record developed by the State
with respect to the Shoplifting Report, which fails to show that the Report was
prepared by the store for some underlying business purpose other than anticipated
litigation. The State failed to elicit any testimony whatsoever from the store’s
assistant manager or any other witness explaining whether or to what extent
shoplifting reports were used in the store’s underlying business operations, such as
for inventory control or insurance purposes, rather than simply to memorialize
shoplifting incidents for purposes of anticipated criminal or civil litigation. Given the
entire absence of any testimony on this issue, there is simply no evidence that
shoplifting reports were “made for the systematic conduct of the business as a
business,” Palmer, 318 U.S. at 113, and thus in the regular course of the store’s
business under OCGA § 24-8-803 (6).
For these reasons, I would conclude that the trial court erred in admitting the
Shoplifting Report as a business record. Furthermore, nonconstitutional error is
8
harmless in a criminal case only if it is “highly probable that the error did not
contribute to the judgment,” Leverette v. State, 303 Ga. App. 849, 852 (2) (696 SE2d
62) (2010) (footnote omitted), and when that test is applied in this case, it is clear that
the erroneous admission of the Shoplifting Report was harmful with respect to
Thompson’s conviction for felony shoplifting.
To prove felony shoplifting under the law as it existed at the time of the
offense, the State was required to show that the value of the property stolen by
Thompson was over $300. OCGA § 16-8-14 (b) (1) (2010).3 “Value,” according to
the statute, “means the actual retail price of the property at the time and place of the
offense,” and “[t]he unaltered price tag or other marking on property, or duly
identified photographs thereof, shall be prima-facie evidence of value and ownership
of the property.” OCGA § 16-8-14 (c) (2010).
The State did not introduce the price tags for the stolen camera and game
console, photographs of the tags, or testimony regarding the prices from an employee
at the store with personal knowledge regarding pricing. Instead, the sole evidence of
the value of the stolen items introduced by the State was the Shoplifting Report.
3
The current version of the statute requires the State to show that the value of
the stolen property was over $500 to sustain a conviction for felony shoplifting. See
OCGA § 16-8-14 (b) (1) (2014).
9
Consequently, the improper admission of the Shoplifting Report contributed to
Thompson’s felony shoplifting conviction, and we should reverse his conviction and
sentence on that count of the indictment.
I am authorized to state that Judge Miller joins in this dissent.
10