State v. Duke, Court of Appeals No. WD-20-001

• Decision Date: 30 April 2021
• Docket Number: Court of Appeals No. WD-20-001
• Citation: 2021 Ohio 1552
• Court: Ohio Court of Appeals
• Parties: State of Ohio Appellee v. Mecca Duke Appellant

2021 Ohio 1552

State of Ohio Appellee v. Mecca Duke Appellant

Court of Appeals No. WD-20-001

COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

April 30, 2021

Trial Court No. 2019CR0123

DECISION AND JUDGMENT

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

W. Alex Smith, for appellant.

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Wood County Common Pleas Court which, following a bench trial, found appellant, Mecca Amelia Rasula Duke, guilty of complicity to burglary and petty theft. For the reasons set forth below, this court affirms the judgment of the trial court.

I. Background

{¶ 2} On April 4, 2019, a Wood County Grand Jury indicted appellant for the offenses of burglary, a violation of R.C. 2911.12(A)(1) and 2911.12(D), a second-degree felony (Count 1), and of petty theft, a violation of R.C. 2913.02(A)(1) and 2913.02(B)(2), a first-degree misdemeanor (Count 2). Appellee alleged appellant was complicit with codefendant Nikia Johnson in the afternoon of Saturday, March 9, 2019, and drove Ms. Johnson to the Kohl's retail store in Perrysburg, Wood County, Ohio, with the intent to trespass into the occupied store and remove merchandise without payment and without the consent of Kohl's.

{¶ 3} Appellant waived her right to a jury trial, and on November 12, 2019, following a bench trial, the trial court found appellant guilty of complicity to the burglary and petty theft offenses. The transcript of the bench trial is in the record.

{¶ 4} Officer Tyler Gearig of the Perrysburg Township Police Department testified at trial that he responded to a dispatch call around 3:50 p.m. reporting a theft from the Perrysburg Kohl's. He was given descriptions from Kohl's of: the woman who entered the store and stole merchandise using a Kohl's mesh shopping bag, the red Chevy Cobalt getaway car with the front license plate in the front windshield and missing a hubcap, and the red hijab-wearing woman who drove the getaway car. A be-on-the-look-out ("BOLO") bulletin was issued, and the red car was spotted by Rossford police on the nearby highway and was stopped. Officer Gearig arrived at the location of the stopped car and was able to match the description of Ms. Johnson as the woman who enteredKohl's and stole merchandise, the description of appellant as the woman who drove the getaway car, and the description of the getaway car, which was registered to appellant. Ms. Johnson admitted to Officer Gearig of stealing merchandise from Kohl's and said the stolen retail items were in the backseat of the getaway car. Officer Gearig observed in plain view through the car window the stolen items in the Kohl's mesh shopping bag, and then confirmed the items had Kohl's price tags on them. Both women were then arrested.

{¶ 5} Sergeant Jason Gladney of the Perrysburg Township Police Department testified at trial that the Kohl's loss prevention associate, Jennifer Hassal, is personally known to him as a source of information regarding theft incidents at the Perrysburg store. After Officer Gearig proceeded to where Rossford police stopped the getaway car, Sergeant Gladney entered the Perrysburg Kohl's and watched the security videos. He described the videos as showing Ms. Johnson enter Kohl's at 3:48 p.m. on March 9, 2019, pick up a mesh shopping bag, and proceed to stuff into the bag women's clothing, athletic wear, and other items. "[S]he was basically set on something, she had a mission; she wasn't just really just looking at stuff. * * * [And she] just leaves without paying for the items." The time of her exit was 3:56 p.m. Sergeant Gladney also viewed the parking lot videos and confirmed appellant was waiting in the getaway car and quickly drove off as soon as the running Ms. Johnson entered the passenger side.

{¶ 6} Kelly Griffin, a Perrysburg Kohl's store manager, testified at trial that she finished her shift at 3:45 p.m. on March 9, 2019, and was in the Kohl's parking lot in her vehicle preparing to leave when she observed a red car arrive and have difficulty backinginto a parking space near the store entrance and near Ms. Griffin's vehicle. She noticed two women in the car, "But being trained the way I am, what I noticed is that one person got out of the car and one person stayed in the car. So that would also have caught my attention." After a woman exited the passenger side of the car and entered the store, Ms. Griffin continued to observe the situation. "At that point I would be concerned because of proximity to the door, driver still in the car, because we've had a lot of run outs." At 3:56 p.m., "I saw the person that got out of the car come running back to the car with Jennifer, my loss prevention associate, trying to follow her to get her to stop. * * * [The person is carrying] a Kohl's shopping bag full of merchandise." The red car started running in the parking space. Ms. Griffin saw the person run to the passenger side of the red car, and the red car took off "pretty quickly." Ms. Griffin started following the red car and called Perrysburg Township police to provide information on the red car's movements. Ms. Griffin explained why she watched and observed this particular situation:

So there are things that you watch out for as a store manager for what we call bag and grabs. And it's cars that are running close to the doors. And that's why we also don't like for cars to park right at the fire exit because those cars sometimes are people in the store grabbing lots of merchandise and running out with it unpaid to the car. So someone backing into a parking spot that close with a driver still in the car makes you take a second look.

{¶ 7} Jennifer Hassal, the loss prevention supervisor for the Perrysburg Kohl's, testified at trial she was in her office and observed through the close-captioned multi-camera system that at 3:48 p.m. on March 9, 2019, Ms. Johnson used the west entrance of the store, "and she quickly grabbed a mesh bag and proceeded directly to our misses active department and began filling it with merchandise." In her experience, the "mesh bags a lot of time stand out a little bit more than a regular shopping cart. Not a lot of people use them. And they are one of the tools that a lot of our ORC, organized crime rings, choose to use for run-out thefts." Another factor that caused Miss Hassal to pay attention to the woman was, "she kind of cut through departments. * * * [A]fter twenty years of watching people you kind of learn mannerisms of shoppers and the things that they do and don't do. To me it seemed that she was avoiding associates and things like that. * * * I'm noticing that she is not looking at sizes, she's not really looking at prices, just kind of filling a mesh bag full of merchandise." Another thing that caught her attention, "she appeared to be on the phone with somebody." By 3:55 p.m., Miss Hassal saw the woman move toward the exit doors with a very full mesh bag, "And she didn't take a long time to select any of it or really shop for it." Miss Hassal came to the shopping floor and saw Ms. Johnson "looking around to see if anybody is watching her. And then she passes all points of purchase, failing to offer any sort of payment for merchandise, and [held onto] the mesh bag that she carried out with her." Miss Hassal ran out the door after Ms. Johnson to attempt to stop her. "She was moving very quickly. And I identified myself as loss prevention. And she just kept running to the vehicle."Miss Hassal saw Ms. Johnson enter the passenger side of the red car, which the driver had running, and leave within seconds "taking [Ms. Johnson] and the merchandise with it." Miss Hassal was within six to eight feet of the red car and saw the right front wheel was missing the hubcap. Miss Hassal was in walkie-talkie communication with the store supervisor and provided the getaway car description and license plate information, and the store supervisor, in turn, was on the phone with the Perrysburg Township police dispatcher relaying real-time information. When Miss Hassal learned Ms. Johnson's name from the police, she entered it into Kohl's loss prevention management system and learned that Ms. Johnson had been recently apprehended at the Toledo Kohl's on February 2, 2019, and entered into a no trespass agreement with Kohl's. Then on March 25, 2019, Ms. Hassel received a BOLO from the Lima Kohl's store about an incident there the day before the incident in Perrysburg. On March 8, 2019, the same red getaway car was involved in theft at the Lima Kohl's store. After the Perrysburg Township police recovered the stolen Kohl's merchandise from the getaway car, the merchandise was valued at nearly $800.

{¶ 8} Appellee then rested its case. Appellant immediately moved for a judgment of acquittal pursuant to Crim.R. 29(A). Specifically, appellant focused on Count 1 and argued there was no testimony "with regard to the burglary being committed with either force, stealth, or deception," an essential element. Appellant argued Ms. Johnson's crossing the threshold into Kohl's did not constitute force, stealth or deception to enter the store itself because "the doors were open." Appellant further argued there was noevidence appellant "was the lookout at all, just that she's in the vehicle, the vehicle is parked in the parking lot. There's no video that shows that she is, you know, staring outside. There's (sic) no phone records to show she is communicating with Miss Johnson. * * * [T]here's no evidence that she has any knowledge at all of what is happening inside the store." Appellant concluded, "my argument would be that those elements could be imputed with regard to potentially the misdemeanor [petty theft] charge but not the felony [burglary] charge unless, again, there is some basis for some knowledge of what is going to occur there."

{¶ 9} Appellee responded how each of the elements of complicity to burglary and petty theft were...