155 A.3d 943 (Md.App. 2017), 2894-2015, Ross v. State

Docket Nº:2894-2015
Citation:155 A.3d 943, 232 Md.App. 72
Opinion Judge:Moylan, J.
Attorney:Argued by: Thomas Ruffin, Jr., (Ruffin Legal Services on the brief) all of Washington, D.C. for Appellant. Argued by: Todd W. Hesel (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD for Appellee.
Judge Panel:Meredith, Nazarian, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.
Case Date:March 03, 2017
Court:Court of Special Appeals of Maryland

Page 943

155 A.3d 943 (Md.App. 2017)




No. 2894-2015

Court of Special Appeals of Maryland

March 3, 2017

Appeal from the Circuit Court for Prince George's County. James J. Lombardi, Judge.


Argued by: Thomas Ruffin, Jr., (Ruffin Legal Services on the brief) all of Washington, D.C. for Appellant.

Argued by: Todd W. Hesel (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD for Appellee.

Meredith, Nazarian, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.


Moylan, J.

A drone may release a bomb and incinerate a building in the outback of Afghanistan while the hand that guides the drone and releases the bomb sits quietly before a control panel in Colorado Springs. If called before a court of inquiry, that hand at the control panel will not enjoy the alibi of having been half a world away nor be able to invoke the disclaimer of never having touched the drone. The phenomenon of aiding and abetting, if not indeed that of first-degree principalship, has undergone a sea change.

The Present Case

The appellant, Teresa Ross, was convicted in the Circuit Court for Prince George's County by a jury, presided over by Judge James J. Lombardi, of three counts of theft of $100,000 or more in United States currency. On this appeal, she contends 1. that the evidence was not legally sufficient to prove the mens rea of theft;

2. that the State's case was based solely on circumstantial evidence and that it failed to rule out every reasonable hypothesis of innocence;

3. that Judge Lombardi failed to instruct the jury about the burden on the State to disprove the Good Faith defense and the Claim of Right defense to theft; and

4. that Judge Lombardi erroneously failed to grant the appellant's Motion for New Trial based on newly discovered evidence.

The Facts In This Case

Between July 31, 2014 and October 13, 2014, over forty high-end Samsung televisions were stolen from the Sears Department Store in Annapolis with a total value in excess of $200,000. The mode of theft can generally be described as credit card fraud, perpetrated through the coordinated efforts of numerous parties, known and unknown. The appellant was convicted of knowingly facilitating the fraudulent use of credit card information, in her capacity as a sales associate, thereby perpetuating and accelerating the flow of the televisions out the store and into the hands of the thieves, all the while earning an impressive commission. The following represents a brief summary of that version of the evidence most favorable to the State.

On July 31, 2014, a young man entered the Sears store in Annapolis, and approached James Miller -- the lead supervisor of the electronics department. He identified himself as " Geoffrey Atkins, Jr." and informed Miller that he wanted to purchase a 75-inch Samsung television to give to his mother for her birthday. When it came time to pay, however, his debit card was declined for insufficient funds. He promptly took out a cellphone and made a five-minute phone call. At the conclusion of the call, he offered Miller an eminently pragmatic solution: his father, Geoffrey Atkins, Sr., would call in later to pay for the television, and he would simply pay his father back over time.

As promised, a Geoffrey Atkins, Sr. (" Mr. Atkins" ) did call the electronics department that evening to pay for the television. To that end, he provided Miller with the number for an American Express credit card. Bryan Jansen, the store manager, testified that although it was generally Sears policy not to conduct over-the-phone transactions using third-party credit cards (i.e., any non-Sears credit card) he gave Miller permission to go forward in that instance based on his understanding that the sale began as an in-person transaction. Miller entered the credit card information into the register, and the transaction was " immediately approved" without incident.

In the weeks that followed, " Mr. Atkins" or his wife, " Mrs. Atkins," would regularly call the Sears electronics department to purchase additional televisions, which they at one point indicated were being used to " upgrade" the family's chain of barbershops so as to " keep up with the times." Jansen testified that it is not uncommon for individuals to purchase large quantities of televisions from Sears for the purpose of outfitting a business location.

Not all of the transactions, however, proceeded " without incident." On some occasions, the cash register would generate what was referred to at trial as a " register prompt." Jansen explained that register prompts are " generally fraud-detecting questions," or instructions for the sales associate conducting the transaction to take additional steps in order to verify the identity of cardholder. A common instruction was for the sales associate to contact the credit card company to obtain an " authorization code." " [MR. JANSEN]: There are occasions in which the register is going to ask for more information. And the[s]e are generally fraud-detecting questions. One of the most common questions is for you to call the credit agency involved.

" So if it is a Discover Card, there's a specific Discover number that you're to contact to get approval for that charge .

" [PROSECUTOR]: And there's a specific authorization given after that?

" [MR. JANSEN]: Yes. So at that time, the register will not proceed unless you enter an authorization code. That authorization code is provided by the person on the phone that you contact."

(Emphasis supplied).

On August 7, 2014, Miller was handling an over-the-phone purchase by Mrs. Atkins when a register prompt was generated that requested an authorization code from American Express. When Miller informed Mrs. Atkins that he needed to provide American Express with additional information, she suggested that she could just call the company directly from her house phone and then relay the authorization code to Miller. " [MR. MILLER]: And she said she was going to call from her house phone. I read her off the phone number. She had a conversation with someone on the other line that sounded exactly like the conversation I would have had if I called.

" And she like, right on cue, asked me for certain information to give it to them. So everything sounded like it was legit."

(Emphasis supplied).

Over the course of the next several weeks, whenever an authorization code was required during an Atkins purchase, a member of the Atkins family would provide it.[1] Between July 31, 2014, and August 25, 2014, the Atkins family purchased a total of fourteen (14) high-end televisions, and charged a total of $55,524.42 to various American Express and Discover credit cards.

Bryan Jansen testified that there came a point when, in the course of reviewing a monthly " Profit and Loss Statement," he noticed an unusually large amount of " charge-backs," which were defined as " a debit issued by a credit card company to a merchant based on noncompliance with the merchant agreement policy." In other words, Sears was being left on the hook for numerous credit card transactions which had not been properly verified with the credit card company. Concerned that the unusually large amount of charge-backs might be related to the recent boost in televisions sales, Jansen asked Miller into his office, and the two shared an epiphany: " [MR. MILLER]: And he just wanted to sit me down and talk to me about the process I was taking in serving this member [i.e., Mr. and Mrs. Atkins]. And I basically ran through the whole thing with him in detail, step by step, how a transaction would go.

" And when I got to the point of, you know, the system prompted for an authorization code, that's when he stopped me. He was like, well, you didn't call? And that was when I had that ah-ha moment, like I should have been doing this the whole time."

(Emphasis supplied).

As a result of that conversation, Jansen emphasized to Miller that for all future Atkins purchases it was critical that all register prompts be precisely followed, and specifically, where an authorization code was requested that it must be obtained by calling the credit card company directly and was never to be provided by the customer. Miller, in turn, stressed the importance of these protocols during individual conversations with each of the three of the sales associates then under his supervision: Sherry Harley, Bernardette Carter, and the appellant -- Teresa Ross.

Between September 10 and October 13, 2014, not only did the Atkins television purchases continue unabated, but the frequency and size of the transactions actually increased. Notably, with the...

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