In re Interest of E. B.

• Decision Date: 23 October 2017
• Docket Number: A17A0784,A17A0785,A17A0786
• Citation: 343 Ga.App. 823,806 S.E.2d 272
• Parties: IN the INTEREST OF E. B., a child (three cases).
• Court: Georgia Court of Appeals

343 Ga.App. 823

806 S.E.2d 272

IN the INTEREST OF E. B., a child (three cases).

A17A0784

A17A0785

A17A0786

Court of Appeals of Georgia.

October 23, 2017

Reconsideration Denied November 14, 2017

Jared Luther Roberts, for Appellant.

George E. Barnhill, Waycross, Ian Louis Sansot, for Appellee.

McFadden, Presiding Judge.

In these related cases, E. B. appeals from the juvenile court's orders adjudicating him delinquent for actions he allegedly committed in 2014, when he was 13 years old. In Cases No. A17A0784 and A17A0785, we reverse E. B.'s adjudications of delinquency for burglary and shoplifting because the evidence was insufficient to support those adjudications; consequently, we do not address his other claims of error in those cases. In Case No. A17A0786, we affirm E. B.'s adjudication of delinquency for tampering with the operation of an electronic monitoring device because the evidence authorized the adjudication and any issues regarding the juvenile court's error in her disposition of that adjudication are moot.

1. Facts and procedural history.

"In reviewing a delinquency adjudication, we construe the record in the light most favorable to the juvenile court's ruling." In the Interest of J. M. A., 340 Ga. App. 155, 796 S.E.2d 773 (2017) (citation omitted).

(a) Shoplifting (Case No. A17A0785).

So construed, the record shows that on April 30, 2014, E. B. and some other children, including his younger brother, El. B., were "playing" in the sporting goods area of a Walmart store. E. B. picked up a packaged Airsoft BB gun and held onto it for several minutes. After he saw that another child in the group had concealed an unpackaged Airsoft gun in his clothing, E. B. said, "he has his and I want one, too." Shortly afterward, E. B. dropped an unpackaged Airsoft gun on the floor, breaking it.

When the Airsoft gun broke the children scattered. E. B., his brother El. B., and another child remained in the store for a few more minutes; they walked around and returned to look at the Airsoft guns before leaving. Outside the store, a loss prevention officer who had witnessed E. B. drop and break the Airsoft gun stopped the three boys and, when the boys refused to talk with him, called 911. Police dispatched to the scene brought the three boys back into the store where they were interviewed. The third child "told the Wal[m]art people what had happened" and was released; he was not charged because he had "walked off" when the other child showed the concealed Airsoft gun and E. B. dropped the unpackaged Airsoft gun. E. B. and El. B. did not make any statements about what had happened and they were charged with shoplifting and taken into custody. At that time neither boy possessed any Walmart merchandise.

The state filed a delinquency petition against E. B., alleging that he was delinquent for taking the Airsoft gun with the intent to appropriate the property to his own use without paying Walmart for it.

(b) Burglary (Case No. A17A0784).

On June 3, 2014, E. B.'s next-door neighbors returned from several days out of town to find the door to their house broken, a window open, and several items taken, including a wallet, clothing, and food. Information from other people in the neighborhood led an investigating police officer to speak with E. B.'s mother, who allowed the officer to search their house. The officer found food belonging to the victims in the washing machine and the wallet under the mattress in a bedroom. (The evidence does not indicate to whom that bedroom belonged.) The officer showed the wallet to E. B. and his family. He asked them how the wallet got under the mattress, where the rest of the victims' stolen items were, and whether they "had anything to do with it." In response, E. B.'s 12-year-old brother, Et. B., showed the officer a suitcase belonging to E. B.'s family and located under the mother's bed that contained more of the victims' belongings.

Two police officers then sat in the living room with E. B. and his family, and one of the officers and E. B.'s mother questioned E. B. and his brothers. That officer testified that Et. B. said that all three boys had been in the neighbors' house and that "they went in after they went to sleep, the parents went to bed.... [T]hey put the younger child through a window, [El. B.], I believe, and he opened the door and they went in and took the goods[.]"

The state filed a delinquency petition against E. B., alleging that he was delinquent for unlawfully entering the neighbors' house with the intent to commit a theft.

(c) Tampering with the operation of an electronic monitoring device (Case No. A17A0786).

E. B. was released into his father's custody and ordered to wear a leg monitor pending the hearing on the burglary petition. On the night of June 25, 2014, without notifying the Department of Juvenile Justice, E. B.'s mother left town with him and his siblings. His father found E. B.'s leg monitor in the boy's bedroom. It had a missing piece. E. B.'s father informed the Department of Juvenile Justice that the boy had left the county and was no longer wearing the leg monitor. E. B. was apprehended in another county with his mother.

The state filed a delinquency petition against E. B., alleging that he was delinquent for forcibly interfering with his leg monitor by breaking the device from his leg.

2. Shoplifting (Case No. A17A0785).

E. B. challenges the sufficiency of the evidence authorizing his adjudication of delinquency for shoplifting. We agree that the evidence was insufficient.

Pertinent to this appeal, the offense of shoplifting is committed when a person, "with the intent of appropriating merchandise to his or her own use without paying for the same ... [c]onceals or takes possession of the goods or merchandise of any store or retail establishment[.]" OCGA § 16-8-14 (a) (1). This case presents a fact pattern that we have not found in any other Georgia cases—E. B. was in a "self-service store in which customers pay for their purchases at check-out counters located at the front," Gibson's Products v. Edwards, 146 Ga. App. 678, 247 S.E.2d 183 (1978), he held the merchandise only within an area proximate to its display, and he did not take any overt action that could evince an intent to appropriate the item, such as concealing the item, attempting to conceal it, carrying it around the store, representing that he had already paid for it, or attempting to leave the store with it. Compare K-Mart Corp. v. Coker, 261 Ga. 745, 747 (3), 410 S.E.2d 425 (1991) (person walked through store with unpackaged lipstick for approximately 20 minutes before discarding it in place where it was unlikely to be found); Tyner v. State, 313 Ga. App. 557, 559 (1), 722 S.E.2d 177 (2012) (defedant took items from display and concealed them under clothing rack); Gilliam v. State, 237 Ga. App. 476, 477 (1), 517 S.E.2d 348 (1999) (defendant carried jacket around store, represented by his behavior that he owned it, and then attempted to obtain refund for it); Parham v. State, 218 Ga. App. 42, 43 (1), 460 S.E.2d 78 (1995) (defendant concealed two shirts in his pants); In the Interest of H. D. H., 208 Ga. App. 526, 526-527 (1), 431 S.E.2d 155 (1993) (juvenile, while paying for another item, picked up pack of cigarettes and began to put it in his pocket without offering to pay); Mathis v. State, 194 Ga. App. 498, 498-499 (1), 391 S.E.2d 130 (1990) (defendant placed several items on counter and told cashier he had already paid for them).

Courts in other jurisdictions have explored the issue of what constitutes shoplifting within a self-service store such as the store in this case. Those courts have noted that, "[i]n self-service stores, customers have permission to pick up, handle, move, try, replace, and carry about merchandise within the store." Holguin v. Sally Beauty Supply, 150 N.M. 636, 264 P.3d 732, 736 (N. M. Ct. App. 2011) (citing Durphy v. United States, 235 A.2d 326 (D. C. Ct. App. 1967) ; Lee v. State, 59 Md.App. 28, 474 A.2d 537 (1984) ); Carter v. Commonwealth, 280 Va. 100, 694 S.E.2d 590 (2010). Consequently, other courts "have held that the burden of proof in establishing the intent to steal by a defendant is more onerous upon the prosecution where the offense alleged occurred inside a self-service store." Haslem v. Florida, 391 So.2d 389, 391 (Fla. App. 1980) (citing Jones v. State, 55 Ala.App. 274, 314 So.2d 876 (1975) ; Groomes v. United States, 155 A.2d 73 (D. C. Ct. App. 1959) ). Those courts have held that the conduct from which intent could be inferred must be clearly adverse to the store's possession of the goods, such as concealing or attempting to remove the goods from the store. See Haslem, supra. See also Carter, supra at 106, 694 S.E.2d 590 ("If the defendant does not leave the premises, the evidence must establish that the defendant in some way, within the store, exercised trespassory possession of the goods inconsistent with the owner's rights.") (citations omitted).

This persuasive authority is consistent with the rule in Georgia that the act of removing merchandise from its immediate place of display is not shoplifting. Martin v. State, 168 Ga. App. 623, 623-624 (1), 309 S.E.2d 899 (1983). Moreover, "we have a duty to construe a statute in a manner which upholds it as constitutional, if that is possible," Freeman v. State, ––– Ga. ––––, –––– (1), ––– S.E.2d ––––, 2017 WL 4341388 (Case No. S17A1040, decided Oct. 2, 2017) (citation and punctuation omitted), and it is not apparent that construing the shoplifting statute to criminalize the act of holding and then dropping an item in the aisle in which it is displayed would pass constitutional muster. To be constitutional, a statute must be "so designed that persons of ordinary intelligence who would be law abiding can tell what conduct must be to conform to its requirements[.]"

Watts v. State, 224 Ga. 596, 598 (1), 163 S.E.2d 695 (1968) (citations and punctuation omitted). In Watts, our Supreme Court held that a provision of an earlier...