Gross v. State

WOODWARD, J. A jury in the Circuit Court for Prince George’s County convicted Marcus Allen Gross, appellant, of the commission of a theft scheme of property valued over $100,000, theft of property valued between $10,000 and $100,000, and conspiracy to commit theft of property valued over $100,000. Appellant noted this appeal and presents two questions for our review: 1. Did the trial court err in admitting GPS [global positioning system] records and testimony based upon those records? 2. Did the trial court commit plain error in instructing the jury on the elements of the crime of theft scheme?

For the reasons that follow, we answer both questions in the negative and affirm the judgments of the circuit court. BACKGROUND Harry Eklof & Associates (“Eklof’) distributes heating and plumbing supplies on the East Coast. The company is located at 3401 Pennsy Drive in Landover, Maryland, which is near 75th Avenue, East West Highway, and Route 50. At this location, the company has a warehouse that contains on any given day millions of dollars worth of inventory, including over $5 million in copper materials.

Richard Jenkins, Eklof s operations manager, stated that the warehouse opens Monday through Friday at 6:00 a.m. for the company’s drivers, and the warehouse employees arrive for work at 7:00 a.m. Although ²⁷ the warehouse remains open until 5:00 p.m., most warehouse employees leave by 3:45 p.m. In 2012, the company had approximately sixty employees, including two drivers. The company hired appellant as a warehouse employee in February 2012.

In July 2012, Eklof conducted its annual inventory. Jenkins testified that the company was “[a] little short, but nothing to raise a major concern.” In early November 2012, however, the company encountered a problem: employees reported shortages of copper fittings that the company’s computer records indicated should have been in abundant supply. Jenkins conducted his own inventory and determined that 506 cartons of copper fittings, weighing a total of 19,065 pounds, were missing, meaning a loss to the company of $263,078.10. 1 Concerned, Jenkins had video surveillance installed in the warehouse to monitor the company’s copper. Shortly after installation of the surveillance, Jenkins reviewed the footage from November 19, 2012.

The footage showed Terrence Mason, one of the company’s drivers, take copper from the warehouse, place it in his personal vehicle, and drive away, 2 Jenkins decided to continue his observations to determine if Mason was acting alone. The Monday after Thanksgiving, November 26, 2012, Jenkins arrived at the warehouse early, hid his vehicle, and concealed himself in a position from which he could observe the employee parking lot. From his hiding spot, Jenkins witnessed Mason arrive at the warehouse and place several cartons of copper fittings in his personal vehicle. Jenkins summoned police, and Mason was arrested at the warehouse.

Shortly after 7:00 a.m. on the same day, appellant called ²⁸ Jenkins to say that he would be absent that day because he could not find a babysitter for his son. Appellant called with the same excuse the following day. On the next day, appellant gave the same excuse and told Jenkins he would re-apply for his job “after he got everything taken care of,” but he never contacted Jenkins again. Detective Jeffrey Higgins of the Prince George’s County Police Department was the lead investigator of the case.

He ran the names of Eklofs employees through the Regional Automated Property Information Database (“RAPID”), which tracks pawn shop sales and scrap metal transactions. Appellant “stood out” to Detective Higgins because appellant scrapped a large amount of copper number 1. Between May 1, 2012, and November 26, 2012, appellant completed ten scrap transactions — five at Joseph Smith & Sons, Inc. (“Smith”), and five at Ultra Recycling, Inc. (“Ultra”). 3 In total, appellant scrapped 408 pounds of copper number 1 for $1,118.80 at Smith and 3,980 pounds of copper number 1 for $11,433 at Ultra. Brian Benko, an information officer at Smith, testified that copper number 1 is rare in scrapping transactions because it is new and unused.

Benko also explained that, before a customer scraps metal, his company, as well as other scrap yards, document the scrapper’s driver’s license and license plate number. In examining the scrap records, Detective Higgins noticed that appellant usually drove his personal vehicle to the scrap yards, but, on two occasions, appellant drove a white box truck with Maryland tag number 71T531. Detective Higgins searched for this license plate in RAPID and discovered more scrap transactions completed by Jeff Ragland, appellant’s cousin. Ragland worked for the Schindler Elevator Company (“Schindler”) as a driver.

Ragland conducted eleven scrapping transactions with Ultra in which he sold a total of 6,846 pounds of copper number 1 for $16,689.50, and three sales ²⁹ with East Coast Metals, LLC (“East Coast”) 4 totaling 3,965 pounds of copper number 1 for $10,675. Tom Tritle, the supervisor for repairs and truck teams at Schindler, testified that the company’s drivers drove Ford F-550s or Isuzu box trucks. A driver’s duties would be to make deliveries to work sites. Tritle stated that drivers would sometimes scrap metal taken from a site, but Schindler had a contract with PG Scrap for this business.

Drivers are also required to keep a log of their work travels, indicating the time they were at particular locations. Unbeknownst to the drivers, Schindler installed GPS units on its vehicles in July 2012. Tritle monitored the GPS information and occasionally compared the GPS data with the drivers’ logs for accuracy. At trial, the State introduced through Tritle the records of GPS data for Ragland’s truck, a white Isuzu box truck with Maryland tag number 71T531.

The State asked Tritle to (1) read the date, time and address from the GPS records for certain dates, and then (2) highlight the entries that he read. The complete GPS records, with the highlighted entries, were introduced as an exhibit under the business records exception to the hearsay rule. See Md. Rule 5-803(b)(6). The GPS data indicated that on the days where the truck was used in scrap transactions, it would generally be at or near Eklofs warehouse at some point shortly before being at or near one of the scrap yards. 5 Indeed, Detective ³⁰ Higgins testified that the GPS data revealed that “[t]here seems to be a pattern” of the truck going to Eklof and then to one of the scrap yards.

Tritle testified that appellant was not an employee of Schindler and thus was not authorized to drive the box truck. Tritle also stated that Schindler had no business dealings with Eklof; Jenkins said the same. Mason testified as part of a plea deal. He stated that, sometime in September 2012, appellant approached Mason and said he had a way to make some extra money.

Appellant offered Mason $200 if he would be a lookout while appellant took copper. Appellant identified Ragland and Ragland’s truck as the vehicle that took the copper from Eklof s warehouse. As to the November 19th and 26th incidents, Mason testified that he worked alone and sold the copper to a friend for drug money. The jury convicted appellant of a theft scheme of property valued over $100,000, theft of property valued between $10,000 and $100,000, and conspiracy to commit theft of property valued over $100,000, but acquitted him of theft of property ³¹ valued over $100,000, theft of property valued between $1,000 and $10,000 as to the November 26, 2012 incident, and theft of property valued between $1,000 and $10,000 as to the November 19, 2012 incident.

The circuit. court merged appellant’s conviction for theft into the conviction for theft scheme and sentenced appellant to a prison term of 26 years and a consecutive sentence of 26 years, suspending all but 20 years, for the conspiracy conviction, with five years of probation. Appellant was also ordered to pay $188,000 in restitution. We will discuss more facts as necessary below. DISCUSSION I. The GPS Data Appellant contends that the trial court erred in admitting the records of GPS data and testimony based on those records related to the box truck.

The GPS records were admitted over objection during the direct examination of Tritle. Appellant argues that, in order for the circuit court to admit the GPS records, the State needed to offer expert testimony, because the GPS records are similar to cell phone geolocation data. According to appellant, although people are more familiar now with GPS technology because of smart phones and car navigation systems, the court still needed someone with specialized training and experience to testify as to the GPS data contained in the records. In particular, appellant argues that an expert was needed to testify as to, among other things, how GPS satellites work, how the system was installed in the truck, how frequently the system transmits data, and how often the GPS data is inaccurate.

The State counters that no expert testimony was necessary for the admission of the records of GPS data. 6 The ³² State argues that the GPS data is different from cell phone geolocation data. According to the State, whereas the testifying witnesses in the cell phone cases use specialized training and experience to interpret the records, Tritle was not using any sort of expert knowledge to read the GPS records. Furthermore, the State asserts that jurors could readily understand the GPS data in this case, and no expert was, therefore, necessary. The Court of Appeals has noted: “ ‘It is frequently stated that the issue of whether a particular item of evidence should be admitted or excluded is committed to the considerable and sound discretion of the trial court....’” State v. Simms, 420 Md. 705, 724 , 25 A.3d 144 (2011)(quoting Ruffin Hotel Corp. of Md., Inc. v. Gasper, 418 Md. 594, 619 , 17 A.3d 676 (2011)).

Furthermore, “ ‘[b]road discretion is vested in the trial court with regard to expert testimony, and that discretion will not be disturbed on appeal absent an error of law or fact, a serious mistake, or clear abuse of discretion.’ ” Johnson & Higgins of Penn., Inc. v. Hale Shipping Corp., 121 Md.App. 426, 444 , 710 A.2d 318 (quoting Braxton v. Faber, 91 Md.App. 391, 396 , 604 A.2d 543 (1992)), cert. denied, 351 Md. 162 , 717 A.2d 385 (1998). A court abuses its discretion where “ ‘a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law.’ ” Kelly v. State, 392 Md. 511, 531 , 898 A.2d 419 (2006) (quoting Cooley v. State, 385 Md. 165, 175 , 867 A.2d 1065 (2005)). Expert testimony is governed by Maryland Rule 5-702, which permits a trial court to admit the testimony of an expert “if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.” Expert testimony is “ ‘based upon specialized knowl ³³ edge, skill, experience, training or education.’ ” State v. Payne, 440 Md. 680, 699 , 104 A.3d 142 (2014) (quoting Ragland v. State, 385 Md. 706, 725 , 870 A.2d 609 (2005)). Stated another way, “[testimony elicited from an expert provides useful, relevant information when the trier of fact would not otherwise be able to reach a rational conclusion; such information Is not likely to be part of the background knowledge of the judge or jurors themselves.’ ” Payne, 440 Md. at 699 , 104 A.3d 142 (quoting David H. Kaye, et al., The New Wigmore: a Treatise on Evidence: Expert Evidence § 1.1 (2d ed. 2010)).

Appellant contends that the GPS data in this case is similar to cell phone geolocation data. In Wilder v. State, 191 Md.App. 319 , 991 A.2d 172 , cert. denied, 415 Md. 43 , 997 A.2d 792 (2010), Coleman-Fuller v. State, 192 Md.App. 577 , 995 A.2d 985 (2010), and Payne , this Court and the Court of Appeals concluded that expert testimony was necessary for the admission of cell phone geolocation data. In Payne , for example, a police officer testified as