People v. Tharpe-Williams

No. 2--96--0010
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
__________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
) No. 95--CM--3429
v. )
)
FELICIA THARPE-WILLIAMS, ) Honorable
) Donald J. Hennessy,
Defendant-Appellant. ) Judge, Presiding.
___________________________________________________________________

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 erred in finding her guilty on a theory of
accountability.
Defendant's first contention on appeal is that the trial court
erred in failing to exclude the testimony of Berg and Pinneke.
Defendant posits essentially two arguments in support of this
contention: (1) Berg's and Pinneke's testimony was inadmissible
hearsay; and (2) Berg's and Pinneke's testimony violated the best
evidence rule.
We first address defendant's argument that Berg's and
Pinneke's testimony constituted inadmissible hearsay testimony.
Berg and Pinneke witnessed the incident at the courtesy desk by
watching a contemporaneous telecast of it on the video monitor in
the security office. According to defendant, Berg and Pinneke did
not have any personal knowledge of what occurred at the courtesy
desk; rather, they repeated what the video camera, a third party,
had to say. As such, defendant reasons, their testimony
constitutes inadmissible hearsay.
Initially, we note that defendant has waived this issue for
purposes of appellate review. Although the issue was raised in her
post-trial motion, defendant failed to lodge a specific
contemporaneous objection to either Berg's or Pinneke's testimony.
Accordingly, the issue is waived. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (an issue is waived if it is not raised both in a
trial objection and in a written post-trial motion).
Waiver aside, we find defendant's argument to be meritless,
albeit novel. Hearsay evidence is in-court testimony of an out-of-
court statement, which is offered to establish the truth of the
matter contained in the statement, and the value of which rests on
the credibility of someone other than the witness. In re E.M., 262
Ill. App. 3d 302, 309 (1994). Here, defendant assumes that the
video camera which telecast the incident was the source of an out-
of-court statement. We disagree.
Defendant does not cite, and we have not located, any Illinois
case law which addresses this issue. Nevertheless, it is axiomatic
that an out-of-court statement must be made by a person or writing,
not by an object such as a video camera. Hearsay evidence is
inadmissible because it relies upon the credibility of someone
other than the witness. In other words, hearsay evidence is
considered untrustworthy because the declarant is not subject to
cross-examination. See People v. Holman, 103 Ill. 2d 133, 148
(1984) ("The fundamental purpose of the hearsay rule is to test the
value of assertions by exposing the source of the assertion to
cross-examination by the party against whom it is offered"); see
also M. Graham, Cleary & Graham's Handbook of Illinois Evidence
801.1, at 636-37 (6th ed. 1994). In the context of hearsay
evidence, however, credibility and trustworthiness are
characteristics peculiar to people or documents written or
generated by people. Objects such as a video camera neither have
nor lack credibility or trustworthiness. If properly operated,
there is no reason to suspect that images received from a video
camera and displayed on a video monitor are unreliable. As such,
the underlying basis for excluding hearsay evidence does not apply
to "out-of-court statements" made by a video camera. Cf. People v.
Holowko, 109 Ill. 2d 187, 193 (1985) (records produced by
computerized telephone-call tracing equipment without manual or
human intervention are not hearsay evidence). Hence, Berg's and
Pinneke's testimony was not inadmissible hearsay.
Of course, a witness' testimony regarding what he observed
while viewing a contemporaneous, live telecast of an incident
requires foundational proof that the video system was functioning
properly. Defendant, however, does not, and did not before the
trial court, maintain that the video system in this case was
functioning improperly on the day of the incident. Accordingly, we
need not consider whether a proper foundation was laid for Berg's
and Pinneke's testimony regarding what they observed on the video
monitor.
We next address defendant's argument that Berg's and Pinneke's
testimony violated the best evidence rule because the videotape of
the incident was not submitted into evidence. As before, defendant
has waived this argument by failing to lodge a contemporaneous
objection to the testimony and by failing to raise it in her post-
trial motion. See Enoch, 122 Ill. 2d at 186.
Even if the issue were not waived, we are convinced that the
best evidence rule has no application to the circumstances involved
here. The best evidence rule states a preference for the
production of the original of documentary evidence when the
contents of the documentary evidence are sought to be proved.
Jones v. Consolidation Coal Co., 174 Ill. App. 3d 38, 42 (1988).
There is no general rule that a party must produce the best
evidence that the nature of the case permits. Jones, 174 Ill. App.
3d at 42. The best evidence rule does not apply where a party
seeks to prove a fact which has an existence independent of the
documentary evidence, even though the fact might have been reduced
to, or is evidenced by, the documentary evidence. Jones, 174 Ill.
App. 3d at 42. For instance, an individual who hears a defendant's
confession may testify to it even though the confession may have
been simultaneously transcribed by a court reporter. People v.
Spencer, 264 Ill. 124, 137-38 (1914).
In this case, Berg's and Pinneke's testimony sought to prove
a fact which was independent of the videotape of the incident--
i.e., that they observed defendant place unpaid items in her bag as
well as accept a bag with unpaid items. In other words, they
sought to testify not to the contents of the videotape, but to an
incident they observed on the video monitor. Just as the
individual who hears a confession may testify that the defendant
confessed, even though the confession was simultaneously
transcribed by a court reporter, so too could Berg and Pinneke
testify to what they saw defendant do, even though that incident
was simultaneously recorded on videotape. Although the videotape
of the incident " 'might be more reliable and satisfactory evidence
under ordinary circumstances than testimony from memory, the latter
is not rendered incompetent by the fact of the existence of the
former.' " Anderson v. Oklahoma, 704 P.2d 499, 502 (Okla. Crim.
App. 1985), quoting People v. Kulwin, 102 Cal. App. 2d 104, ___,
226 P.2d 672, 674 (1951); see Jones, 174 Ill. App. 3d at 42.
Moreover, the fact that Berg and Pinneke only observed the
incident because it was telecast by a video camera is irrelevant.
Berg and Pinneke observed the incident on the video monitor at the
same time it was occurring. As such, they testified to facts based
on their personal observations. The situation is no different than
if Berg and Pinneke had been 100 yards away from defendant at the
time of the incident but they needed a telescope to observe what
was happening. As long as the telescope was functioning properly,
we see no reason why they would not be able to testify as to what
they observed. Similarly, as long as the video system was
functioning properly, Berg and Pinneke could testify as to what
they observed on the video monitor. Because defendant never
contested below that the video system was functioning improperly,
Berg's and Pinneke's testimony was properly admitted.
Of course, if Berg and Pinneke had attempted to testify as to
the contents of the videotape, then the best evidence rule would
have required that the videotape be authenticated and admitted into
evidence. See M. Graham, Cleary & Graham's Handbook of Illinois
Evidence 1002.1, at 836-37 (6th ed. 1994). However, they did not
attempt to testify as to the contents of the videotape. Thus, the
best evidence rule does not apply. See Pennsylvania v. Lewis, 424
Pa. Super. 531, 537, 623 A.2d 355, 358-59 (1993) (best evidence
rule barred police officer from testifying about the contents of a
videotape; police officer did not witness the alleged act of retail
theft which was supposedly recorded on the videotape).
Defendant's second contention is that she was not proved
guilty of the offense of retail theft beyond a reasonable doubt.
In support of this contention, defendant emphasizes that she was
not present during part of the incident, that Berg and Pinneke did
not see her talking with Knight, and that Berg's testimony was not
substantially corroborated by Pinneke's.
When faced with a challenge to the sufficiency of the
evidence, the reviewing court applies the standard set forth in
People v. Collins, 106 Ill. 2d 237, 261 (1985). Under Collins, the
relevant inquiry is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Collins, 106 Ill. 2d at 261. A reviewing court
will not substitute its judgment for that of the trier of fact on
questions involving the weight of the evidence or the credibility
of the witnesses. People v. Campbell, 146 Ill. 2d 363, 375 (1992).
It is the province of the trier of fact to draw reasonable
inferences from the evidence, and we may not overturn a finding of
guilt unless the evidence is so unreasonable, improbable, or
unsatisfactory that there remains a reasonable doubt of the
defendant's guilt. People v. Cunningham, 265 Ill. App. 3d 3, 5
(1994).
Defendant was charged with committing the offense of retail
theft in violation of section 16A--3(a) of the Criminal Code of
1961 (720 ILCS 5/16A--3(a) (West 1994)). To establish a violation
of section 16A--3(a), the State must prove: (1) that the defendant
knowingly took possession of, carried away, transferred, or caused
to be carried away or transferred, any merchandise; (2) that the
merchandise was displayed, held, stored, or offered for sale in a
retail mercantile establishment; and (3) that the defendant
intended to retain such merchandise, or intended to deprive the
merchant permanently of the possession, use, or benefit of such
merchandise, without paying the full retail value of such
merchandise. 720 ILCS 5/16A--3(a) (West 1994); People v. Liner,
221 Ill. App. 3d 578, 580 (1991).
Viewing the evidence in the light most favorable to the State,
we conclude that a rational trier of fact could have found
defendant guilty of retail theft. Berg testified that, although it
is company policy that employees purchase store items at the
regular cash registers, defendant brought her items to the courtesy
desk, the station nearest the exit. Defendant then placed two
unrung items into a McDonald's bag. At least one of these items,
the sample bottle of cologne, was store merchandise. Moreover,
Berg and Pinneke both testified that defendant was facing Knight
when Knight failed both to scan some merchandise and then place
that merchandise in a Wal-Mart bag. Defendant then took the Wal-
Mart bag and the McDonald's bag, but was detained before she could
exit the store. A search of the bags revealed that defendant did
not pay for several items in the Wal-Mart bag and that she did not
have a receipt for the cologne and deodorant in the McDonald's bag.
Based on this evidence, a rational trier of fact could infer that
defendant knowingly took possession of Wal-Mart's merchandise and
that she intended to retain the merchandise without paying the full
value of it. Furthermore, and contrary to defendant's assertions,
the presence of the stolen merchandise in court, either in person
or through photographs, was not required to prove the retail theft.
See People v. Mikolajewski, 272 Ill. App. 3d 311, 317 (1995). We
therefore refuse to disturb defendant's conviction.
Defendant's final contention is that the trial court erred in
finding her guilty on a theory of accountability. We need not
address this contention, however, in light of our foregoing
analysis. Assuming, arguendo, that the trial court found defendant
guilty on a theory of accountability for Knight's acts, the record
is clear that the trial court also found defendant directly
responsible for the offense of retail theft. As the preceding
paragraph explains, the evidence was sufficient to sustain this
finding of direct guilt. Because we may affirm defendant's
conviction on the trial court's finding of direct guilt, we need
not consider whether defendant was also guilty under a theory of
accountability.
For the foregoing reasons, the judgment of the circuit court
of Du Page County is affirmed.
Affirmed.
DOYLE, J., concurs.
JUSTICE RATHJE, concurring in part and dissenting in part:
I agree with the majority view that the testimony of the
videotape evidence was not inadmissible hearsay. However, I
disagree with the conclusion that the defendant was found guilty of
theft as a principal beyond a reasonable doubt.
I observe, first, that there is no evidence of a confession by
the defendant in this cause, nor is there any testimony by Sandra
Knight, the other employee involved in this cause, implicating the
defendant in any theft of merchandise from Wal-Mart. The evidence
of the commission of the offense in this cause consists of the
testimony of two other store employees as to what they saw on the
videotape of the incident.
According to the testimony of employees Berg and Pinneke, the
defendant placed items to be purchased on the counter and then left
the viewing area of the camera. While the defendant was gone,
Knight placed unscanned items in a Wal-Mart bag. There was no
evidence that the defendant was aware that these items were not
scanned prior to them being placed in the bags. When the defendant
returned to the viewing area, she had a McDonald's bag with her,
and she placed items from the counter in the McDonald's bag.
Again, there was no evidence that the defendant was aware that
these items had not been scanned prior to placing them in the
McDonald's bag. While the defendant was facing Knight, Knight
placed more unscanned items into Wal-Mart bags, which the defendant
took with her.
Central to the State's proof in this cause is the fact that
the defendant was facing Knight with her back to the camera while
Knight was placing unscanned merchandise into Wal-Mart bags.
However, because there is no audio portion to the videotape, it is
only speculation and conjecture as to what went on between the
defendant and Knight while the unscanned items were placed into the
Wal-Mart bags. The State's version requires us to assume that, at
all times, the defendant's attention was fixed on what Knight was
doing without actually proving that critical fact.
While it is undisputed that unscanned items were found in the
defendant's possession, there is no proof beyond a reasonable doubt
that the defendant knowingly took possession of the items without
paying the full retail value of them. 720 ILCS 5/16A--3(a) (West
1994). As the State's proof that the defendant was aware that the
items in her possession were not scanned amounts to conjecture and
speculation, I would conclude that the defendant was not found
guilty of retail theft beyond a reasonable doubt.