Kim v. State

IN SUNG KIM v. STATE OF MARYLAND

No. 1535

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

August 31, 2020

Circuit Court for Prince George's County

Case No. CT180531A

UNREPORTED

Kehoe, Gould, Moylan, Charles E. (Senior Judge, Specially Assigned), JJ.

Opinion by Gould, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant In Sung Kim was convicted by a jury sitting in the Circuit Court for Prince George's County of conspiracy to commit theft over $100,000 and theft between $10,000 and $100,000. The court imposed concurrent suspended sentences of 364 days of imprisonment and five years of probation for each conviction. Appellant was also ordered to pay $197,668.68 in restitution. Appellant raises two questions on appeal, which we have slightly rephrased for clarity:

I. Did the trial court err in denying appellant's motion for judgment of acquittal on the conspiracy charge because there was insufficient evidence of an agreement with his alleged co-conspirator?

II. Did the trial court err in ordering $197,668.68 in restitution because the amount does not represent damages for which appellant was directly responsible?

For the following reasons, we answer both questions in the negative and affirm the judgments.

FACTS AND BACKGROUND PROCEEDINGS

The State's theory of prosecution was that between September 2013 and November 2014, appellant stole money, separately and in collaboration with Jang Wook Kim,¹ from a restaurant where they both worked as managers. The State's testimonial evidence came primarily from Chan Hee Bae, the owner of the restaurant. The State also introduced receipts of the restaurant's sales and data from its point of service ("POS") computer system. The defense denied any wrongdoing by appellant and suggested that Ms. Bae stole from her own restaurant to reduce her tax liability. Appellant presented no witnesses.

The evidence, viewed in the light most favorable to the State, established that Ms. Bae was the owner and president of Kobe Japanese Steak House, a hibachi-style, 18-table restaurant, located in the Capital Centre in Largo, Maryland. Appellant worked at the restaurant as a server and was promoted to manager in 2009. Ms. Bae described the duties and responsibilities of a manager to include opening and closing the restaurant, ordering supplies, managing employees, and closing out the days' sales receipts at the end of the night on a written worksheet. She testified that appellant and Jang worked individually, alternating Monday through Thursday, but they worked together on Friday, Saturday, and Sunday. She testified that she only stopped by the restaurant a few times a week.

Ms. Bae testified that the restaurant managed its operation through a POS computer system. She explained that a server would take a customer's order and enter the order into the POS system. Once the customer paid the bill, the server would take the bill and signed credit card receipt or cash to the manager, who would then close out the order in the POS system. She testified that only a manager could close out an order. At the end of the night, the manager would total the day's sales from the cash and credit card payments to match against the day's sales in the POS system.

In November 2014, Ms. Bae received a tip that money was being stolen from the restaurant. Although what was sold and paid for in the POS system matched, she looked further and found discrepancies between customers' receipts and the POS data. According to Ms. Bae, if a customer came in and ordered a drink, an appetizer, and an entrée, the items would be entered in the POS system. When the customer finished her meal, the customer would pay, whether by credit card or cash, for all three items. The managerwould close out the drink and appetizer in the POS system, but the entrée would be "transferred" to a virtual table in the computer system. As subsequent customers purchased the same entrée, the customers would pay for the entrée, but each time, it would be transferred back to the virtual table and not closed out on the POS system until the end of the night. Although the restaurant would have sold several of the same type of entrées throughout the evening, the POS data would show only one entrée sold. According to the State, the managers pocketed (from the restaurant's cash sales) the difference between what the customers paid and what was reflected in the POS system when they closed the receipts for the night.

Ms. Bae testified that on the days between September 2013 and November 2014, when appellant was the sole manager, the difference between what customers paid and what was entered into the POS system was $31,276.04. When appellant and Jang worked together, the difference was $166,392.64. She testified that she once questioned appellant about the restaurant's lack of profits, and he explained that it was due to a rise in inventory costs and a downturn in the number of customers. She trusted him and did not inquire further. Once she discovered the theft, she confronted appellant, who denied any wrongdoing, but did not show up for work the next day or ever since.

DISCUSSION

I.

Appellant argues that we must reverse his conviction for conspiracy to commit theft because the State failed to prove that he and Jang entered into an agreement. Appellantargues that, at most, the State's evidence demonstrated "a one-person operation[.]" The State disagrees, as do we.

The standard for appellate review of evidentiary sufficiency is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Thomas, 464 Md. 133, 152 (2019) (citation omitted). "That standard applies to all criminal cases, regardless of whether the conviction rests upon direct evidence, a mixture of direct and circumstantial, or circumstantial evidence alone." Smith v. State, 415 Md. 174, 185 (2010). "Where it is reasonable for a trier of fact to make an inference, we must let them do so, as the question is not whether the [trier of fact] could have made other inferences from the evidence or even refused to draw any inference, but whether the inference [it] did make was supported by the evidence." State v. Suddith, 379 Md. 425, 447 (2004) (cleaned up). This is because weighing "the credibility of witnesses and resolving conflicts in the evidence are matters entrusted to the sound discretion of the trier of fact." In re Heather B., 369 Md. 257, 270 (2002) (quotation omitted). Thus, "the limited question before an appellate court is not whether the evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder." Allen v. State, 158 Md. App. 194, 249 (2004) (cleaned up), aff'd, 387 Md. 389 (2005).

Appellant was charged and convicted of conspiracy to commit theft over $100,000. Conspiracy, a common law crime, is defined as the "combination of two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawfulmeans. The essence of a criminal conspiracy is an unlawful agreement." Mitchell v. State, 363 Md. 130, 145 (2001) (quotation omitted). "The agreement need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose and design." Khalifa v. State, 382 Md. 400, 436 (2004) (quotation omitted). We have stated:

In conspiracy trials, there is frequently no direct testimony, from either a co-conspirator or other witness, as to an express oral contract or an express agreement to carry out a crime. It is a commonplace that we may infer the existence of a conspiracy from circumstantial evidence. If two or more persons act in what appears to be a concerted way to perpetrate a crime, we may, but need not, infer a prior agreement by them to act in such a way. From the concerted nature of the action itself, we may reasonably infer that such a concert of action was jointly intended. Coordinated action is seldom a random occurrence.

Jones v. State, 132 Md. App. 657, 660 (2000).

Having reviewed the evidence presented by the State, we are persuaded that there was sufficient evidence from which a rational juror could find beyond a reasonable doubt that appellant was guilty of conspiracy. Appellant focuses on the mechanism by which money was stolen and characterizes it as "a single individual [] understat[ing] the amount realized from a customer and pocket[ing] the difference." The lens though which appellant views his actions is too narrow. Because both appellant and Jang used the exact same scheme, at the same time, to steal from their common employer, a rational juror could infer a conspiratorial agreement between them.

The restaurant was small—not a large-scale operation by any stretch. As managers, only they had the ability to create virtual tables and alter the POS data so it did not accurately reflect a day's...