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02/19/97 PEOPLE STATE ILLINOIS v. FELICIA

February 19, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FELICIA THARPE-WILLIAMS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 95--CM--3429. Honorable Donald J. Hennessy, Judge, Presiding.

Released for Publication March 20, 1997.

The Honorable Justice Bowman delivered the opinion of the court. Doyle, J., concurs. Justice Rathje, concurring in part and dissenting in part.

The opinion of the court was delivered by: Bowman

The Honorable Justice BOWMAN delivered the opinion of the court:

Defendant, Felicia Tharpe-Williams, was convicted following a bench trial of retail theft (720 ILCS 5/16A--3(a) (West 1994)). The trial court sentenced her to one year of court supervision and fined her $100 plus court costs. Defendant now appeals her conviction. We affirm.

The following is a summary of the trial evidence relevant to the issues on appeal. Wal-Mart maintains a security office in its store in Darien, Illinois. The office contains numerous video monitors which are connected to video cameras located throughout the store. At the same time that the images are relayed from the video cameras and sent (and displayed) on the video monitors, the images are also recorded on a videotape.

Eric Berg, a loss prevention agent for Wal-Mart, testified that on June 16, 1995, he was observing the video monitors in the security office. For the previous two weeks, he had been investigating Sandra Knight, who worked behind the courtesy desk. At approximately 3 p.m. on June 16, Berg saw defendant on the video monitor approach Knight and place a large number of items on the courtesy desk. Defendant was also employed by Wal-Mart. Knight began to scan some of the items. Defendant then walked out of the picture, and Knight began to place some items which she had not scanned in a Wal-Mart bag.

Berg further testified that defendant then reentered the picture with a McDonald's bag (McDonald's operated a stand inside the Wal-Mart) and placed the McDonald's bag in the seat of her cart. Defendant then took two unscanned items, a bottle of cologne and a can of deodorant, which were on the courtesy desk, and placed them in the McDonald's bag. The bottle of cologne was a sample bottle for the customers' use; it contained a label from the vendor stating that the bottle was a tester and not for resale. No sales receipt for either item was found in the McDonald's bag. Berg then saw Knight placing additional unscanned items into Wal-Mart bags. Defendant was present and facing Knight when Knight failed to scan some of the items and place them in the Wal-Mart bags. Although not entirely clear from the record, defendant apparently did write a check (in the approximate amount of $60) for some of the merchandise.

At this point, Berg notified his supervisor, Mick Pinneke, about what was occurring. Pinneke directed Berg to do a receipt check to make sure that all the items were paid for. Defendant was then detained, and the receipt check revealed that there were items in the bags that were not accounted for on the receipt. Berg then prepared a receipt of the items defendant had not paid for; the total amount of the unpaid items was $18.67.

According to Berg, Wal-Mart has an unwritten policy, which is disclosed to employees during their orientation, that employees should make purchases at the registers and not at the courtesy desk. There are no registers between the courtesy desk and the exit doors. Also, Wal-Mart did not have a policy of giving its employees tester items. Berg did not know if defendant and Knight talked to each other during this incident because he could only see the back of defendant's head.

Mick Pinneke, a district loss supervisor for Wal-Mart, testified that, while watching the video monitor, he saw Knight place unscanned merchandise into a Wal-Mart bag. Defendant was facing Knight when this occurred. According to Pinneke, defendant was violent after she was detained by store security; she threw merchandise, pushed a shopping cart at Pinneke, and repeatedly called Knight's name.

Officer Joseph Brady of the Darien police department testified that he arrived at the store after defendant had been detained by store security. Officer Brady asked defendant how the unscanned items got into the McDonald's bag and the Wal-Mart bag. Defendant replied that she did not know. Officer Brady also testified that Knight told him that she did not scan certain items for defendant.

Defendant did not present any evidence in her case in chief. The trial court subsequently found her guilty of the offense of retail theft and sentenced her to one year of court supervision and fined her $100 plus court costs.

Defendant has three contentions on appeal: (1) the trial court erred in failing to exclude the testimony of Berg and Pinneke; (2) she was not proved guilty beyond a reasonable doubt; and (3) the trial court ...


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