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People v. Hart

May 12, 2003


Appeal from the Circuit Court of Du Page County. No. 01--CF--302 Honorable George J. Bakalis, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley


Defendant, James C. Hart, was convicted of retail theft in the circuit court of Du Page county (720 ILCS 5/16A--3(a) (West 2000)). On appeal, defendant contends that the trial court committed reversible error both when it denied his motion to dismiss the indictment based on alleged perjured testimony presented to the grand jury and when it allowed testimony at trial regarding a previous theft that defendant was alleged to have committed at the same store. Defendant also contends that the evidence was insufficient to sustain the trial court's judgment. We affirm.

The following is a brief summary of the evidence heard at trial. On January 26, 2001, sometime after 11 a.m., defendant entered the luggage department of a Neiman Marcus department store located at Oakbrook Shopping Center in Oakbrook, Illinois. Marianne Etzkorn, a sales associate, observed defendant leaving the luggage department carrying a green Marshall Field's bag and a black leather "Tumi" briefcase that retailed for $395. Both were in defendant's right hand, and they were arranged so that the Marshall Field's bag was on the outside, partially obscuring the briefcase. Etzkorn had observed defendant enter the luggage department without the briefcase. Evidence from a videotape taken by security cameras later corroborated that defendant took the briefcase from the luggage department. Etzkorn notified the loss prevention department that defendant had left the luggage department with the unpurchased briefcase.

Jeff Weiland, a loss prevention investigator, and Maximilleo Toledo, Jr., a loss prevention officer, were on duty at the time defendant was in the store. Prior to receiving Etzkorn's call, Weiland and Toledo had been observing defendant through a live feed from a series of surveillance cameras. Weiland testified that, because he recognized defendant as a suspect from a previous shoplifting incident, he and Toledo paid special attention to him. Through the video feed, Weiland observed defendant take the briefcase from the luggage department, pass the register at the luggage department, take the escalator to the second level, and continue to walk around the store. After defendant got on the escalator, Toledo went outside the store to wait for him. Weiland observed defendant pass several cash registers before ending up at a store exit near the accessories department.

The evidence showed that the accessories department had a circular "jewelry counter" adjacent to the door with two cash registers and items for sale encased in glass. There was an area with a door mat between the jewelry counter and the exit and a small vestibule between the inside doors and the outside doors. The jewelry counter was the last point where customers could pay for merchandise before exiting the store. The videotape showed defendant circle the jewelry counter looking at the items for sale in the display case and then move toward the doors. Defendant paused at the inside doors for several seconds. At this time, Weiland informed Toledo via radio that defendant was about to leave the store. Toledo moved toward the doors from a hiding place outside the store and opened the outside set of doors. Toledo made eye contact with defendant, and defendant backed off from the inside doors. Toledo walked past defendant into the store. Defendant then moved back toward the jewelry counter.

Weiland, who had left the video surveillance room sometime during this period, identified himself to defendant as a Neiman Marcus loss prevention investigator. According to Weiland, upon being accosted, defendant "blurted out" several times that he had never left the store. Following his detention at the Neiman Marcus store, defendant was read his Miranda rights and placed under arrest by police.

The court also heard testimony regarding a previous incident that also involved defendant and had occurred at the same store 12 days earlier. On January 14, 2002, Ron Harvey, a sales associate at the Neiman Marcus store, observed defendant remove a coat from a rack in the men's department. Defendant also was carrying a second coat. Defendant put the Neiman Marcus coat over his arm and put the second coat on top of that. Jeffrey Bergandine, another sales associate, observed defendant with a "Neiman Marcus storm system trench coat" and a second coat, which he believed belonged to defendant, both draped over his arm. Bergandine approached defendant and asked him whether he needed assistance. Defendant replied that he was "just looking." Bergandine believed defendant had not bought the Neiman Marcus coat because it was not in either a zipper bag or a Neiman Marcus opaque plastic bag. Bergandine also observed a "sleeve label" on the coat. Bergandine testified that such labels normally are removed when a coat is sold.

Bergandine phoned Weiland in the security office and informed him that a man with a Neiman Marcus trench coat draped over his arm had refused his assistance. Weiland then began video surveillance of defendant. Weiland observed defendant leave the store with the coat. At no time did Weiland or anyone else who testified at trial observe defendant paying for the coat. Weiland testified that he did not call the police or stop defendant from leaving the store because it was Neiman Marcus policy not to stop a suspected shoplifter unless a loss prevention officer actually observes the suspect removing the item in question from the rack and continuous surveillance is maintained. Weiland notified the Neiman Marcus stores in Northbrook, Illinois, and on Michigan Avenue in Chicago to be on the lookout for a man attempting to return a trench coat. Jovan Radjevic, a loss prevention officer at the Michigan Avenue store, received Weiland's call regarding the trench coat. In response to the call, he alerted his sales associates that someone might be attempting to return a stolen trench coat. Late that afternoon Radjevic received a phone call from a sales associate who informed him that a man was attempting to return a coat that fit the description given by Weiland. When Radjevic began video surveillance he observed defendant talking to sales associates with a trench coat in his hand. There was also a second man standing next to defendant. Radjevic took a photograph of the two men that was introduced at trial.

Evidence was heard that customers who return merchandise without proof of purchase are given the option of leaving the merchandise at the store while the sale of the merchandise is investigated. If the investigation determines that the merchandise was validly sold, the customer subsequently receives a check in the mail. Alternatively, customers may retain the merchandise and forego a refund. Defendant chose to leave the trench coat at the store in order to receive a refund. The coat he returned matched the description of the coat that was seen in his possession earlier that day at the Oak Brook store.

Jamie Weber, loss prevention manager at the Oak Brook Neiman Marcus store, investigated defendant's claim that he had bought the coat. Weber determined that the coat was a Neiman Marcus product by looking at the make of the coat and the price tag. The coat retailed for $1,195. According to Weber, the coat had a "SKU" number that was unique to its style, size, and color. Neiman Marcus uses a computer system to manage its inventory. The system keeps track of how many items of a particular type are on hand in a store. Specifically, when an item is sold, the system recognizes the SKU number for that item and subtracts it from the store's inventory. Among other things, this allows Neiman Marcus to audit its physical inventory to make sure that it is not missing items from the store. Weber twice conducted such an audit with respect to the particular type of trench coat that defendant returned to the Michigan Avenue store and each time determined that the physical inventory was one short of what it should have been based on sales records.

Following a bench trial, defendant was found guilty of retail theft for the theft of the briefcase. On appeal defendant contends that his conviction must be reversed because (1) the trial court erred in failing to grant his motion to dismiss the indictment based on alleged perjured testimony presented to the grand jury; (2) the trial court erred in denying his motion to exclude evidence of the alleged theft of the trench coat; and (3) no rational trier of fact could have found him guilty beyond a reasonable doubt based on the evidence. We examine each argument in turn.

Defendant first argues that he was denied due process because certain false testimony was presented to the grand jury. Before the grand jury, Officer Jeff Arendt testified as follows:

"Q. Good afternoon, officer. Would you please introduce yourself and spell your last name?

A. Officer Jeff Arendt. A-r-e-n-d-t.

Q. And are you currently employed with the Oak Brook Police Department?

A. Yes.

Q. Directing your attention to January 26, 2001, were you so employed and on duty on that date?

A. Yes.

Q. And were you called to a report of a retail theft that had taken place at Neiman Marcus in Oak Brook Shopping Center in Oak Brook, DuPage County, Illinois?

A. Yes, I was.

Q. And when you arrived at that location, did you have an opportunity to speak to a loss prevention officer at the Neiman Marcus by the name of loss prevention ...

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