Younger v. State

ROSALYN B. BELL, Judge. Norma Lee Younger was convicted by a jury in the Circuit Court for Allegany County of two counts of misdemeanor theft and one count of felony theft greater than $300, pursuant to one scheme or continuing course of conduct. The charges against Younger arose out of two separate incidents of shoplifting that occurred on the same date and from stores in the same shopping mall. Since Younger raises a sufficiency of the evidence challenge to her convictions, we will discuss additional facts of the case in greater detail during our analysis of her argument. ⁶⁴⁶ The trial judge imposed two concurrent terms of imprisonment of 18 months for the misdemeanor theft counts, and a concurrent term of five years incarceration, with all but two years suspended, for the count charging felony theft pursuant to one scheme or a continuing course of conduct.

On appeal, Younger contends that her convictions and sentences on the three theft counts were error under either a sufficiency of the evidence theory or under the doctrine of merger. The State argues that the court did not err in submitting the three counts to the jury, but concedes it did err in failing to merge the misdemeanor theft convictions into the felony conviction. We hold that there was sufficient evidence from which the jury could find that Younger committed the acts of theft. We also hold, however, that for sentencing purposes the convictions for the two misdemeanor thefts should have been merged with the conviction for the felony theft.

Therefore, we will vacate the sentences for the two misdemeanor thefts. SUFFICIENCY OF THE EVIDENCE Younger was charged with one count of misdemean- or theft for shoplifting goods from a Bon-Ton store and another count of misdemeanor theft for stealing goods from a Sears store. A third count of felony theft pursuant to Md.Code Ann. Art. 27, § 340(Z)(5) (1957, 1992 Repl.Vol.), was also added. Article 27, § 340(Z )(5) provides: “When theft is committed in violation of this subheading pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the value of the property or services aggregated in determining whether the theft is a felony or a misdemeanor.” Younger argues that the evidence was insufficient to support her theft convictions.

Younger’s contention that the evidence was insufficient is, in all probability, unpre ⁶⁴⁷ served. Even if it were preserved, the claim is without merit. According to the testimony from State witnesses, on May 1, 1991, Younger asked Thomas Miller and Charlene Oates to go to the Country Club Mall in Cumberland. When they arrived at the mall, all three went into the Sears store where they took several items totalling $275.92 in value.

After putting these items in Oates’s car, they drove around the mall to the Bon-Ton store. At Bon-Ton, they placed several items worth a total value of $209.98 in bags. BonTon employees Phyllis Atkinson and Debra Loar observed this