K-Mart Corp. v. Coker

• Decision Date: 05 December 1991
• Docket Number: K-MART,No. S91G0377,S91G0377
• Citation: 410 S.E.2d 425,261 Ga. 745
• Parties: CORPORATION v. COKER.
• Court: Georgia Supreme Court

Page 425

410 S.E.2d 425

261 Ga. 745

K-MART CORPORATION v. COKER.

No. S91G0377.

Supreme Court of Georgia.

Dec. 5, 1991.

Reconsideration Denied Dec. 18, 1991.

John C. Stivarius, Jr., Chambers, Mabry, McClelland & Brooks, Atlanta, for K-Mart Corp.

D. William Garrett, Jr., Alpharetta, for Coker.

FLETCHER, Justice.

Ira Lynn Coker sued K-Mart Corporation for malicious prosecution after she was acquitted on a shoplifting charge. Following a jury verdict in her favor, the trial judge granted K-Mart a judgment notwithstanding the verdict. The Court of Appeals reversed on the ground that Coker did not have the necessary criminal intent to shoplift and therefore K-Mart lacked probable cause. Coker v. K-Mart Corp., 197 Ga.App. 701, 399 S.E.2d 249 (1990). We granted certiorari and reverse the Court of Appeals.

On December 14, 1984, while waiting to pick up lay-away merchandise, Coker removed a torn lipstick package from a display rack in the cosmetics department of a K-Mart store. She walked to the cologne department where she removed the tube of lipstick from the package. She laid the package, which had the price tag on it, on the counter and browsed through several departments in the store with the lipstick tube in her hand. When she saw her husband with the lay-away merchandise in the parking lot, she threw the lipstick in an open handbag hanging on a store rack and started to leave without the handbag or lipstick.

K-Mart's security officer stopped her as she was exiting and requested that she come back into the store. The assistant manager asked about the tube of lipstick and she pointed it out to the security officer. He removed the lipstick from the handbag. Store employees searched Coker's purse and body, but found no store property. Coker refused the employees' request to sign a statement that they called an incident report and she labeled a confession. At K-Mart's request, a police officer issued Coker a citation for shoplifting and took her into custody.

The magistrate found that K-Mart had probable cause to prosecute Coker for shoplifting and bound the case over to the State Court of Fulton County for trial. After the state court judge directed a verdict of acquittal, she filed this action in superior court. A jury returned a verdict for Coker, which the judge overturned, finding that K-Mart had probable cause to believe she had committed the offense of shoplifting.

1. The lack of probable cause is the gravamen of a malicious prosecution action. Day Realty Associates, Inc. v. McMillan, 247 Ga. 561, 562, 277 S.E.2d 663 (1981); Darnell v. Shirley, 31 Ga.App. 764, 765, 122 S.E. 252 (1924). Probable cause is absent when the circumstances would satisfy a reasonable person that the accuser had no ground for proceeding except a desire to injure the accused. OCGA § 51-7-43. Although a jury normally decides whether probable cause exists, the judge determines the issue when the material facts are undisputed. Id.; West v. Baumgartner, 228 Ga. 671, 676, 187 S.E.2d 665 (1972). A judge's denial of a motion for a directed verdict of acquittal in the criminal case is a binding determination that probable cause exists; a magistrate's determination of probable cause at a preliminary hearing is not conclusive. Monroe v. Sigler, 256 Ga. 759, 761-62, 353 S.E.2d 23 (1987). Because the parties in this case do not dispute the facts and the state court judge granted Coker a directed verdict of acquittal, the existence of probable cause is a question for the court.

2. A person commits the offense of shoplifting when he:

with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following:

(1) Conceals or takes possession of the goods or merchandise of any store or retail establishment;

....

(3) Transfers the goods or merchandise of any store or retail establishment from one container to another....

OCGA § 16-8-14. Thus, the statute provides three forms of mens rea, punishing persons who have the intent "(1) to appropriate the property to [one's] own use without paying for it; (2) to deprive the owner of the possession of it or (3) to deprive the owner of the value of it." P. Kurtz, Criminal Offenses and Defenses in Georgia 429 (2nd ed. 1987). By adding the second and third alternatives, the legislature indicated that the mens rea requirement is not stringent. See generally id. at 426, 429-30 (finding the mens rea in the shoplifting statute broader than the intent to steal required for a theft by taking).

In construing the criminal intent required for shoplifting, the Court of Appeals stated that a merchant must examine a shopper's intent before seeking an arrest for shoplifting. See Coker, 197 Ga.App. at 704, 399 S.E.2d at 252. Although we agree that criminal intent is a material element of shoplifting, we disagree that a store employee must determine the shopper's subjective intent before seeking an arrest and prosecution under the shoplifting statute.

The Court of Appeals' decision overlooks that criminal intent may be inferred from the "words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted." OCGA § 16-2-6; see Lee v. State, 102 Ga. 221, 223, 29 S.E. 264 (1897) (intent "may be inferred from the circumstances [or] ascertained by acts and conduct"). For example, the Court of Appeals in another shoplifting case inferred the defendant's intent to appropriate merchandise for his own use and to deprive the owner of possession of those goods from the defendant's admission that he removed the items from the store where he worked. Secrist v. State, 145 Ga.App. 391, 394, 243 S.E.2d 599 (1978); see also Commonwealth v. Balboni, 26 Mass.App. 750, 532 N.E.2d 706 (1989) (finding criminal intent from defendant's action and demeanor in surveying store, taking cigarettes, and lacking the money for pay for them).

3. Coker's intent is inferred from her conduct. She removed the lipstick from its package, abandoned the empty package with the price tag, walked through the store for at least twenty minutes with the lipstick in her hand, failed to return the lipstick to a nearby service desk as she left, and instead discarded the tube in a handbag on a rack where no employee would be likely to discover the lipstick and return it to its original package. From these acts, K-Mart employees could infer that Coker intended to deprive the store of both the possession and value of the lipstick tube. Her failure to remove the lipstick from the store does not negate the criminal intent that the statute requires. See Watts v. State, 224 Ga. 596, 163 S.E.2d 695 (1968); Mathis v. State, 194 Ga.App. 498, 391 S.E.2d 130 (1990).

4. Under the circumstances, we find that Coker's acts would cause reasonably prudent persons to believe they had probable cause to prosecute her for the offense of shoplifting. Therefore, Coker may not recover for malicious prosecution. ¹ This holding comports with the policy of the courts and this state to disfavor malicious prosecution actions and to encourage citizens to bring to justice persons who are apparently guilty. See Day Realty, 247 Ga. at 562, 277 S.E.2d 663.

Judgment reversed.

All the Justices concur, except SMITH, P.J., and BELL and BENHAM, JJ., who dissent.

SMITH, Presiding Justice, dissenting.

We granted a writ of certiorari to the Court of Appeals in Coker v. K-Mart, 197 Ga.App. 701, 399 S.E.2d 249 (1990), and asked the parties to address "whether the damages were excessive under the facts and the applicable law." The appellee, Mrs. Coker, was the plaintiff below in a civil action for malicious prosecution. OCGA § 51-7-40 et seq. The jury returned a verdict in her favor and against K-Mart, but the trial court granted K-Mart a judgment notwithstanding the verdict. The Court of Appeals reversed, and this Court reversed again.

This is not a criminal case. This is a civil case. In a criminal trial, the State must prove the defendant's (the plaintiff in the tort action) intent. That is not what is required in a tort case for malicious prosecution. In a civil trial for the tort of malicious prosecution, the plaintiff (the defendant in the criminal trial) must prove that the defendant (the party who caused the criminal prosecution to go forward) lacked probable cause to go forward with the criminal prosecution of the plaintiff.

The plaintiff, in her first enumeration of error before the Court of Appeals, argued that she had proven the defendant's lack of probable cause as defined by the tort law, and that the trial court erred by granting K-Mart a judgment notwithstanding the verdict. The majority of this Court followed the trial court's error by examining the plaintiff's conduct under the criminal law of shoplifting to the exclusion of examining the defendant's conduct under the tort law of malicious prosecution. The majority compounded the error by asserting that the rationale for depriving the plaintiff of her recovery under the tort law was that

criminal intent may be inferred from the "words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted." OCGA § 16-2-6; see Lee v. State, 102 Ga. 221, 223, 29 S.E. 264 (1897).

The criminal code section cited above, Lee, supra, (the almost one hundred year old "hog" case), and the other criminal cases cited by the majority are being improperly used to deprive the plaintiff of her rightful recovery under the tort law. The majority cites several malicious prosecution cases in division one; however, these are cited only for their procedural value. Divisions two through four all concentrate on proving Mrs. Coker's criminal intent. Mrs. Coker's alleged criminal intent is not the focus of a malicious prosecution action, and the majority's insistence upon attempting to prove her guilt is an especially...