STATE OF NEW JERSEY VS. SHAMECCA N. WHITFIELD (18-020, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5361-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAMECCA N. WHITFIELD,

Defendant-Appellant.

__________________________

Submitted March 23, 2021 – Decided April 22, 2021

Before Judges Yannotti and Mawla.

On appeal from the Superior Court of New Jersey, Law

Division, Monmouth County, Municipal Appeal No.

18-020.

Bruno & Ferraro, attorneys for appellant (John W.

Ferraro, of counsel and on the brief).

Christopher J. Gramiccioni, Monmouth County

Prosecutor, attorney for respondent (Monica do

Outeiro, Assistant Prosecutor, of counsel and on the

brief; Brendan Ruckert, Legal Assistant, on the brief).

PER CURIAM

Defendant Shamecca Whitfield appeals from a June 28, 2019 judgment

entered following a de novo trial finding her guilty of shoplifting, N.J.S.A.

2C:20-11(b)(2), and imposing fines, community service, and ninety days in the

Monmouth County Jail. We affirm.

We take the following facts from the record. The underlying incident

occurred in February 2018 while defendant shopped at a supermarket in

Freehold Township. Supermarket security cameras show defendant steered her

shopping cart to the self-checkout area and began scanning her items. A cashier

monitored a computer divided into four sections displaying the items each self -

checkout customer scanned. The cashier occasionally left his position and

floated between the customers, cleaning stations, and aiding them with finding

price codes on their monitors in order to complete their checkout. At all times,

defendant was no more than ten feet from the cashier.

Defendant pulled her cart up to a checkout monitor and began scanning

her items, including household cleaning supplies and groceries. The cashier

helped defendant begin the process. Defendant scanned ten items, which she

placed into three bags. At that point, she retrieved a large detergent bottle from

the cart and placed it on the counter, but did not scan it and instead returned to

the cart to retrieve smaller items to place into the bags she already filled.

Defendant scanned two items and started to fill a fourth and fifth shopping bag.

She asked the cashier for help, who came to her machine and entered data on

her screen. Defendant then placed the detergent back into her cart. Defendant

pulled the rest of the items, including the detergent, from her cart and placed

them onto the counter. She then placed all five bags of scanned items into her

cart and continued to scan the items on the counter.

Defendant scanned seven more items, which she placed into three more

bags. She retrieved an item which appeared to be a head of a produce item and

began searching at length for its code on her monitor. Once she located the

code, she placed the item in a bag. Defendant retrieved another produce item

from her cart, but could not locate its code for some time and opted instead to

place the item back onto the counter, and scanned a package of eggs and placed

it into a ninth bag. Defendant retrieved a mop from her cart, appeared to scan

it, stared at the screen, entered some data, then placed the mop back into her

cart. She then returned to the produce item she could not find the code for,

located the code, placed it into a tenth bag, and put the bag in her cart. Defendant

next retrieved the detergent from the counter, handled it the vicinity of the

scanner, but placed it back onto the counter.

Defendant produced a card from her pocket, picked up the detergent, and

paid for her items while simultaneously holding onto the detergent bottle with

her other hand. She placed the bottle into an eleventh bag, placed it into her

cart, took her receipt, and began to exit the store. Defendant's checkout process

lasted nine minutes, during which the traffic in the aisle ebbed and flowed and

was either filled with customers or just defendant and the cashier. Defendant

began to exit the aisle holding a long paper receipt in her hand.

As defendant was leaving, the cashier glanced at his monitor and

immediately approached defendant, blocked her path, and an argument ensued.

As defendant pushed the cart past the cashier, he grabbed the mop out of her cart

and she grabbed it back, placed it in the cart, and left the store as the two

exchanged words. The cashier called for assistance. Defendant made her way

out to the parking lot, left her cart outside, and returned to the store with her

receipt continuing the argument.

Defendant then returned to the cart and proceeded to walk across the

parking lot where four store employees stopped her, wrested the cart away from

her, and she and the employees returned toward the store. Approximately seven

minutes later, two police vehicles arrived, and defendant can be seen on the

outside security video speaking with each officer through the passenger side

window of their respective police cruisers.

Inside the store, the security camera showed another employee appearing

to check the items in the cart using a computer generated version of defendant's

receipt. Both officers then appear in the video and took turns handling

defendant's receipt, comparing it to the store's printout. A supermarket

employee then removed the mop and the detergent. The officers did not file

charges and left the scene.

The supermarket filed a complaint alleging defendant shoplifted the

detergent and mop having a total value of $30.98. The matter was tried in the

municipal court and the only witness was the cashier who described the incident.

He explained defendant "started ringing everything, placing it in the bagging

area and doing it as normal people would . . . [and] she . . . rang everything

completely up except for . . . [t]he mop and the detergent." He explained he

checked his monitor and then "stopped [defendant] and asked her if [he] could

have her receipt[ t]o check to make sure she paid for the items." He testified

defendant "refused to give me her receipt. I said [']you didn't pay for the mop.[']

I took the mop out of her cart. She pushed her cart towards me, hit me with her

cart, and snatched the mop out of my hand[ and] . . . left out of the store."

On cross-examination, the cashier conceded he saw defendant remove the

mop and the detergent from her cart, but did not see her scan the items. When

defense counsel asked the cashier how may items defendant checked out, his

response was "I have no idea," but then stated it was "at least [twenty] items."

He could not recall how much defendant paid in total for her items. He testified

defendant "said no" when he asked her for the receipt and said she had paid for

her items. The municipal court judge found the State proved beyond a

reasonable doubt defendant shoplifted the detergent and imposed the fines,

penalties, and jail time.

Defendant appealed and a de novo trial was held before the trial judge in

the Law Division. Defense counsel argued the State had not met its burden

because the mop and detergent were taken from defendant, but there was no

proof she had not paid for them. Defense counsel also argued the State failed to

prove defendant intentionally secreted the items. Counsel pointed to the video,

which showed defendant "put [both items] near the scanner" contrary to the

cashier's testimony. He noted the cashier never testified he "checked his monitor

and saw that those items were not scanned."

Counsel also noted the totality of the circumstances did not support the

guilty finding because defendant did not flee and "is seen waving down . . . the

police officer because a minute later the . . . officer comes walking in the store

with her receipt." Counsel noted the State failed to produce defendant's receipt

and

it would have been nice to know what the proportion

cost-wise of the $5 mop and a $17 bottle of detergent

was in relation to the entire purchase because if the

entire purchase of those other twenty items was $30,

then . . . you may be able to at least say, okay, a $5 item

and a $17 item, . . . those are things that she intended to

take. However, if those twenty items were $100, maybe

the other conclusion is reasonable.

The trial judge reserved his decision in order to watch the video again.

When the matter returned, the judge placed his oral findings on the record

and concluded "[t]he video evidence appears to clearly show that the defendant

concealed and deprived [the supermarket] of the . . . detergent without paying

for the item." The judge found the cashier's testimony that defendant did not

scan the mop was "inaccurate" and after reviewing the video concluded the State

had "not shown beyond a reasonable doubt that the defendant stole the mop

[because the cashier's] monitor immediately registered a new entry on the top

right square [corresponding to defendant's scanner]."

The judge reached a different conclusion regarding the detergent, stating:

However, the same cannot be said for the . . .

detergent. Once the . . . detergent remained to be

scanned the defendant placed the item near the scanning

zone. At that point [the checkout cashier] was in front

of his personal monitor and carefully observed the

defendant's behavior. She moved the detergent towards

the scanner, but the video clearly showed that unlike

the mop, the detergent never touched the square with

the bar code reader.

Additionally, as the defendant moved the

detergent near the scanning area no new entry was

registered on the top right screen of [the checkout

cashier's] monitor. Consequently, [the cashier] scrolled

through defendant's purchases to find the detergent

which was ultimately unsuccessful.

On the basis of the video evidence and [the

cashier's] personal observations of . . . defendant's

behavior the [c]ourt finds that the defendant concealed

the detergent without paying for the item beyond a

reasonable doubt.

Defendant contends that the State has failed to

prove that she purposely concealed the detergent and

intentionally deprived [the supermarket] of the

detergent without paying for the item. In particular she

notes that even if the detergent were not successfully

scanned the error was accidental for, one, the total price

of the scanned items could have significantly

outweighed the individual price of the detergent, thus,

showing that the financially healthy defendant would

have nevertheless been able to afford the detergent.

Two, the video footage clearly establishes that

[defendant] had sufficient funds through her

credit/debit card. And, three, the defendant allegedly

volunteered to give her receipt to the police officers to

clear up any misunderstanding. . . .

Since conviction under the shoplifting [s]tatute is

not dependent on a defendant's financial status and the

video evidence does not clearly establish the

defendant's financial capabilities the [c]ourt will

summarily disregard the defendant's first two

arguments. The video evidence shows beyond a

reasonable doubt that the defendant purposely

concealed the detergent. The defendant's failure to scan

the detergent was no accident. Whenever she would

scan an item, she would look at her monitor to see if the

bar code scanner successfully registered the item. Once

the defendant placed the detergent close to the scanning

zone she looked at her screen and clicked the credit

card/debit card button even though the detergent was

not scanned as such. The defendant knew the . . . bar

code scanner did not detect the detergent.

Furthermore, when [the cashier] approached the

defendant and asked for her receipt, she belligerently

attempted to shove him out of the way with her

shopping cart. Considering that she knew [the cashier]

was a [supermarket] employee, the [c]ourt agrees with

[the municipal court judge's] observation and finds that

her behavior was strangely evasive. The fact that she

provided the police officers with her receipt

approximately a half an hour after the incident does not

alter the [c]ourt's concern that at the time of the

scanning she intentionally concealed the detergent and

refused to allow [the cashier] to confirm her purchases.

....

Lastly, the defendant relied on cases such as State

[v.] Richardson, 452 N.J. Super. 124[ (App. Div.

2017)], [and] argues that due to the State's failure to

introduce exculpatory evidence such as the defendant's

receipt[,] the defendant is entitled to an adverse

inference that the unproduced cash register receipt

would not have supported the State's position that

[defendant] did not scan nor pay for the detergent. . . .

Although the [c]ourt agrees with [the municipal

court judge] that a receipt would have been very helpful

in determining whether the defendant paid for the mop

and detergent, the video evidence clearly corroborates

the State's allegations beyond a reasonable doubt.

Thus, this [c]ourt will deny the defendant's

request for an adverse inference. See . . . Richardson,

452 N.J. Super. at 136 holding that:

"For a [c]ourt to exercise its discretion in

drawing an adverse inference the [c]ourt

must consider the nature of the discovery

obligation, the explanation given by the

State for the violation, and any other

relevant factors."

Consistent with the laws of the State of New

Jersey and the above-described circumstances the

[c]ourt hereby affirms the decision of the Freehold

Municipal Court dated June 20[], 2018.

Following the judge's findings, defense counsel noted the cashier "never

testified that he went and verified on the machine certain things. We can clearly

see on the [video] that he was looking at his monitor, but the thing about

breaking it down into four sections, none of that was testified to." Defense

counsel also noted nothing could be read on the cashier's screen due to the lack

of the video clarity. The judge disagreed and noted he based his findings on his

independent review of the video.

The judge entered the judgment and the same sentence as the municipal

court. He stayed his decision pending appeal.

Defendant raises the following points on appeal:

POINT I

THE EVIDENCE FAILS TO ESTABLISH BEYOND

A REASONABLE DOUBT THAT DEFENDANT

WAS GUILTY OF THE OFFENSE OF

SHOPLIFTING.

POINT II

THE STATE'S FAILURE TO PROVIDE A COPY OF

THE CASH REGISTER RECEIPT ENTITLED

APPELLANT TO AN ADVERSE INFERENCE.

Following a de novo appeal to the Law Division, conducted on the record

developed in the municipal court, our standard of review is limited. State v.

Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005); see also R. 3:23-

8(a)(2). We "consider only the action of the Law Division and not that of the

municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001).

The Law Division judge must make independent findings of fact and conclusions

of law based on the evidentiary record of the municipal court with deference to

the municipal court judge's ability to assess the witnesses' credibility. State v.

Johnson, 42 N.J. 146, 157 (1964).

In turn, we focus our review on "whether there is 'sufficient credible

evidence . . . in the record' to support the trial court's findings." State v.

Robertson, 228 N.J. 138, 148 (2017) (alteration in original) (quoting Johnson,

42 N.J. at 162). We are required to defer to the trial court's factual findings.

State v. Locurto, 157 N.J. 463, 470-71 (1999). Indeed, we must uphold the

court's factual findings as long as they are supported by sufficient competent

evidence in the record. State v. Reece, 222 N.J. 154, 166 (2015). Apropos of

the issues raised on this appeal, our Supreme Court stated:

A policy of deferring to findings of fact of a trial

court based on its review of video and documentary

evidence has certain tangible benefits. When more than

one reasonable inference can be drawn from the review

of a video recording, . . . then the one accepted by a trial

court cannot be unreasonable and the alternative

inference accepted by an appellate court cannot be

superior. In such a scenario, a trial court's factual

conclusions reached by drawing permissible inferences

cannot be clearly mistaken, and the mere substitution of

an appellate court's judgment for that of the trial court's

advances no greater good. . . .

....

Acknowledging that a trial court's factual

findings are entitled to deference does not mean that

appellate courts must give blind deference to those

findings. Appellate courts have an important role to

play in taking corrective action when factual findings

are so clearly mistaken -- so wide of the mark -- that the

interests of justice demand intervention. . . . Deference

ends when a trial court's factual findings are not

supported by sufficient credible evidence in the record.

[State v. S.S., 229 N.J. 360, 380-81 (2017) (citations

omitted).]

Our review of the trial court's legal conclusions is plenary. See State v.

Kuropchak, 221 N.J. 368, 383 (2015).

Pursuant to N.J.S.A. 2C:20-11(b)(2), the State was obligated to prove

beyond a reasonable doubt that defendant

purposely . . . conceal[ed] upon [her] person or

otherwise any merchandise offered for sale by any store

or other retail mercantile establishment with the

intention of depriving the merchant of the processes,

use or benefit of such merchandise or converting the

same to the use of such person without paying to the

merchant the value thereof.

Having thoroughly reviewed the record, we are satisfied the State met the

burden of proof and decline to substitute our judgment for the reasonable

inferences drawn from the trial judge's detailed review of the video, namely, that

defendant failed to scan the detergent. Moreover, the video does not

unequivocally refute his finding defendant knew the bar code scanner did not

detect the detergent. Defendant's "belligeren[ce]" when confronted by the

cashier in a public fashion further supported the judge's finding her intent was

to exit the store without paying for the detergent.

We also do not second guess the judge's finding that the cashier's monitor

showed when defendant had scanned an item. This finding is further supported

by the portion of the cashier's testimony the judge did not reject in which the

cashier stated he had checked the monitor and did not see that the detergent had

been scanned.

Finally, the judge cited our decision in Richardson. There, the defendant

was convicted of drug charges based solely on an officer's testimony he

discovered drugs on him in the police station booking room and the State

destroyed the video tape evidence from the booking room allegedly depicting

the event. 452 N.J. Super. at 128. The trial judge denied defense counsel's

request for an adverse inference jury charge as a result of the destroyed

evidence. Ibid.

We concluded defendant was entitled to the video tape as part of the

discovery process and reversed. Id. at 132, 142. We stated:

The disclosure obligation pertains to "relevant

material," R. 3:13-3(b)(1)[1], and includes

videorecordings in the State's possession, R. 3:13-

3(b)(1)(B). To qualify as "relevant material," the

evidence must have "'a tendency in reason to prove or

disprove [a] fact of consequence to the determination

of the action.'" State v. Gilchrist, 381 N.J. Super. 138,

146 (App. Div. 2005) (quoting N.J.R.E. 401). A court

must "focus upon 'the logical connection between the

. . . evidence and a fact in issue.'" Ibid. (quoting State

v. Darby, 174 N.J. 509, 519 (2002)). The videotape

certainly met that standard. It recorded the alleged

offense and would have tended to prove or disprove the

officer's testimony that defendant possessed heroin in

his sock.

[Richardson, 452 N.J. Super. at 132 (second and third

alterations in original).]

See also State v. Carter, 91 N.J. 86, 112 (1982) (holding "when no request is

made by the defendant or only a general request is made, information not

revealed by the prosecutor will be considered material only if 'the omitted

evidence creates a reasonable doubt that did not otherwise exist . . . .'").

Because the State met its burden of proof on the evidence presented, the

receipt was not a part of its case. The judge did not abuse his discretion in

declining to draw an adverse inference for the State's failure to produce the

receipt.

Affirmed.

1

Rule 7:7-7(c) is the applicable corollary Rule here and utilizes the same relevancy

standard as Rule 3:13-3(b)(1).