Vannison v. State

DONNELL M. VANNISON, SR. v. STATE OF MARYLAND

No. 242

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

March 20, 2019

Circuit Court for Queen Anne's County

Case No.: C-17-CR-17-000598

UNREPORTED

Leahy, Shaw Geter, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

Opinion by Shaw Geter, 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, Donnell M. Vannison, Sr., was convicted by a jury in the Circuit Court for Queen Anne's County, of one count of theft under $1,000. After he was sentenced to five years' incarceration, he timely appealed, presenting the following questions for our review:

1. Did the trial court err in allowing Sandy Lindenberger to testify as a lay witness where expert testimony was required?

2. Did the trial court err in admitting irrelevant evidence?

3. Did the trial court err in allowing the prosecutor to argue facts not in evidence?

For the following reasons, we shall affirm.

BACKGROUND

At approximately 2:45 p.m. on October 14, 2016, Diane Rosa, the store manager for the Famous Footwear outlet at the Queenstown Premium Outlets, noticed a man standing in the women's athletic shoe department, holding a "big, like, birthday gift bag." Rosa testified that the man, identified in court by her as appellant, "abruptly left" the store without stopping at the registers after they made eye contact.

Rosa then went to the women's department where appellant was standing and found an empty woman's Nike shoe box on the floor. Nearby, there was another empty shoe box shoved into a shelf.

Rosa then contacted the head of security for the mall, Sandy Lindenberger, and informed her about the incident, providing a description of appellant and the gift bag he was carrying. Rosa recounted that she found two empty shoe boxes, one for a pair of Nike Air Max Torch IV shoes, and another for a pair of Nike Air Max Invigor Print shoes. Rosachecked the store point of sale system and verified that these specific shoes that were contained in these respective boxes were not sold that day. She later found four other empty shoe boxes and ascertained that their corresponding shoes had not been sold and were also missing.

According to Rosa, the first two pairs of Nikes were valued at $159.98. The remaining four pairs of shoes, also all Nikes, were valued at $374.94. On cross-examination, Rosa agreed that she never actually saw appellant take the shoes.

Sandy Lindenberger, the security director for the outlet mall, was in the security office at around 2:42 p.m. when she received a call from Rosa. Rosa informed her that an African-American male had just left her store carrying a large birthday gift bag with balloons printed all over it. Lindenberger got onto her Segway and went to the Famous Footwear store to get more details. She left shortly thereafter, and spotted a man matching the description run into the Under Armour outlet store, which was located approximately nine storefronts away from Famous Footwear. This man, identified by Lindenberger in court as the appellant, ran out of the Under Armour store with a full bag, and got into a red Lexus occupied by another African-American male and a three to five-year-old boy. Lindenberger wrote down the tag number for the Lexus and contacted the police. She identified the make, model and color of the car, the number of occupants, the direction it was leaving, testifying that it initially attempted to "go in the wrong direction out of the mall," and the fact that appellant was carrying a distinctive gift bag. Lindenberger agreed she never saw any shoes in appellant's hands.

Queen Anne's County Sheriff Deputy M.C. Jones responded to the Famous Footwear at around 3:15 p.m. where he took reports from both Lindenberger and Rosa. This information, including a description of the suspect and the vehicle, was then dispatched throughout the Queen Anne's County Sheriff's Office.

Corporal Gavin Seward, of the Maryland Transportation Authority, was working on patrol near the EZ Pass office located on the west side of the Chesapeake Bay Bridge when he heard a "Be On The Lookout" ("BOLO") for a certain vehicle that was suspected of being involved in a theft at the Queenstown outlet mall located on the other side of the bridge. A vehicle matching the description and license plate number from the BOLO crossed the bridge and passed Corporal Seward's location at around 3:05 p.m.

Corporal Seward got behind the vehicle, a red Lexus, and noticed that it was travelling over the posted speed limit. Accordingly, at around 3:08 p.m., the officer initiated a traffic stop on Route 50 near Bay Dale Drive. During the course of the stop, Corporal Seward ascertained that both the driver, who was not identified at trial, and his passenger, the appellant, had their driving license privileges suspended.

A number of other officers from Queen Anne's County arrived at the scene of the stop in Anne Arundel County. Upon his arrival, Queen Anne's County Sheriff's Deputy Ryan Davidson looked inside the Lexus and observed a large, empty birthday gift bag, decorated with balloons, laying on the floor of the vehicle in close proximity to appellant'sperson.¹ In addition, following up on information relayed to him by Deputy M.C. Jones, Deputy Davidson found a pair of red or burgundy Nikes and a pair of gray and coral-colored Nikes in the trunk of the Lexus. Additional pairs of black and white Nike shoes and, which will be discussed further, other "multiple clothing items" from the Under Armour outlet store, were found inside the trunk.

After the stop, Rosa and Lindenberger both identified the birthday gift bag and confirmed it was the same one they saw appellant carrying on the day in question. Lindenberger also confirmed that the Lexus stopped by the police was the same one she saw parked at the mall. Finally, Rosa confirmed that the six pairs of shoes recovered from the Lexus were the same ones that were missing from her store.

We shall include additional detail in the following discussion.

DISCUSSION

I.

Appellant first contends the trial court erred in admitting Lindenberger's testimony that the balloon bag, lined with foil, was often used by shoplifters to evade detection, on the grounds that the testimony amounted to expert opinion. Appellant continues that, because Lindenberger was neither disclosed as nor qualified as an expert witness, her lay opinion testimony was inadmissible. The State responds that the testimony was admissibleas lay opinion and the trial court properly exercised its discretion. Additionally, the State argues that any error was harmless beyond a reasonable doubt.

The Court of Appeals has explained the standard for reviewing a circuit court's admission of evidence as follows:

[O]rdinarily a trial court's ruling[s] on the admissibility of evidence are reviewed for abuse of discretion. A court's decision is an abuse of discretion when it is well removed from any center mark imagined by the reviewing court and beyond the fringe of what the court deems minimally acceptable. Further, even with respect to a discretionary matter, a trial court must exercise its discretion in accordance with correct legal standards. As such, we examine a trial court's admissibility determinations for an abuse of discretion.

Wheeler v. State, 459 Md. 555, 560 (2018) (internal citations and quotations omitted).

The pertinent exchange occurred during Lindenberger's direct examination. Lindenberger was asked about the bag and she began by noting that the bag was lined with foil. After appellant's objections on the lack of foundation were sustained, Lindenberger testified that she had been involved in the investigation of hundreds of thefts from stores at the outlets. She agreed she was familiar with "items used by those who may be secreting store items while they're attempting to leave the store," and that she had reviewed or examined approximately fifty bags used in such thefts. Lindenberger then continued:

Q. And during your review and familiarization with those items, do you have occasion to familiarize yourself with the ways individuals or the types of bags individuals use?

A. Yes.

Q. And could you tell us a little bit about what you learned as to how those things are done? What is done to the bags?

A. They line the bags with --

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: Overruled. Go ahead.

THE WITNESS: Go ahead? They line the bags with foil and duct tape so when they go in and they take something that has a sensor, when they walk out the door it will not beep to alert the -- the employees that they have something in their bag.

THE COURT: Have you tried that yourself with any of those bags?

THE WITNESS: Yes, plenty of times.

BY [PROSECUTOR]:

Q. I almost don't want to ask if it works, but what, if anything, in the stores at the outlets are located at the -- the exit doors, on the inside of the -- inside of the store?

A. I guess they're just called sensor -- beep - we call them beepers or whatever. So, if something is removed and you can do -- if you've been there, you've bought a purse and they have sensors all over the place. If they don't get them all, you're walking out, it's going to beep. So, and then you just go back and remove it and then go.

Q. From your experience, what, if anything, happens when an item with a sensor is placed inside of a bag with some foil?

A. It will not beep.

[DEFENSE COUNSEL]: Objection. Asked and answered.

THE COURT: Overruled. All right. You can answer.

BY [PROSECUTOR]:

Q. So, if I could have you take a look at State's Exhibit No. 1 and see if you recognize anything in that bag?

A. Yes, it looks like it's lined with foil inside the bag.

The issue raised concerns Maryland Rules 5-701 and 5-702. Maryland Rule 5-701 provides:

If the witness is not testifying as an expert, the witness's

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