Thompson v. the State

                                   WHOLE COURT

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                     March 30, 2015




In the Court of Appeals of Georgia
 A14A2161. THOMPSON v. THE STATE.

      BOGGS, Judge.

      A jury convicted Harold Wesley Thompson of felony shoplifting, aggravated

assault, and possession of methamphetamine. Based on the drug possession

conviction and its determination that Thompson was a recidivist, the trial court

sentenced Thompson to 30 years, with the first 10 years in confinement without the

possibility of parole and the remainder on probation. Thompson filed a motion for

new trial, which the trial court denied. On appeal, Thompson contends that the trial

court erred in admitting a store shoplifting report under the business record exception

to hearsay; that there was insufficient evidence to convict him of felony shoplifting

and aggravated assault; that his sentence for possession of methamphetamine
constituted cruel and unusual punishment; and that the trial court erred in sentencing

him as a recidivist. For the following reasons, we affirm.

      Following a criminal conviction, we view the evidence in the light most

favorable to the verdict. Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012).

So viewed, the evidence showed that on November 28, 2010, Thompson entered a

Costco store in Catoosa County. The store’s loss prevention officer, who was

responsible for monitoring customers for suspicious activity, saw Thompson pick up

a camera and a video game console and take them to a different area of the store.

Thompson then pulled out a “razor blade or box cutter type knife,” used it to remove

the camera from its packaging, and placed the camera in his pants pocket. Thompson

also removed the game console from its box, hid the box in a suitcase on a shelf in

the store, and shoved the game console down into the waistband of his pants. The

officer notified the assistant manager and called the police about the suspected

shoplifter.

      The loss prevention officer followed Thompson to the exit of the store, where

the assistant manager was waiting and observed the encounter. When Thompson

approached the exit door, the officer confronted him and ordered him not to leave.

Thompson pushed through the officer, who fell to the ground with Thompson on top

                                          2
of him; with both of them falling outside the store. Thompson then jumped up, took

a few steps forward into the parking lot, and pulled a knife out of his pocket when he

was “maybe 15 feet” from the officer. He waived the knife towards the officer “[i]n

a threatening manner.” When the officer saw the knife, he stepped back, “put his

hands back,” and stopped attempting to physically apprehend Thompson. Thompson

then took off running across the parking lot.

      Police who had responded to the 911 call saw Thompson running through the

store parking lot. The loss prevention officer and assistant manager stepped outside

of the store, pointed at Thompson, who the police then ordered to the ground and

apprehended. After speaking with the store employees, a police lieutenant searched

Thompson and found the camera in his pants pocket and the game console in the

waistband of his pants, as well as a “razor knife,” a glass pipe containing

methamphetamine, a small digital scale, and a waterproof container with “plastic

baggy squares” inside it. The police lieutenant later testified that, based on his

training and experience, the type of container and “plastic baggy squares” he found

on Thompson were commonly used for storing and transporting illegal drugs.

      Thompson was indicted on one count of felony shoplifting, two counts of

aggravated assault, and one count of possession of methamphetamine. The store’s

                                          3
loss prevention officer did not testify at trial. Rather, the State called the store’s

assistant manager, who testified to what he had observed in the exit area of the store

between Thompson and the loss prevention officer.1 Through the assistant manager,

the State also introduced, over a defense hearsay objection, a report prepared by the

loss prevention officer on the day of the shoplifting incident that, among other things,

identified Thompson as the suspect, provided a physical description of him, and listed

the stolen items and their prices. The trial court allowed the admission of the loss

prevention report under the business records exception to hearsay. Additionally, the

State called as witnesses the police lieutenant involved in Thompson’s apprehension

and a forensic chemist from the State crime lab who confirmed that the pipe found on

Thompson contained methamphetamine. After the State rested, Thompson elected not

to testify and did not call any defense witnesses.

      The trial court directed a verdict on one of the two aggravated assault counts,

and the jury convicted Thompson on the remaining counts. At the sentencing hearing,

the State introduced certified copies of Thompson’s prior convictions in aggravation

      1
        The assistant manager also testified to what the loss prevention officer said
he had observed while following Thompson around the store. Thompson waived any
hearsay objection to this testimony from the assistant manager by failing to object on
that ground at trial, and the testimony thus was “legal evidence and admissible.”
OCGA § 24-8-802.

                                           4
of punishment. Because Thompson had a prior conviction for possession of a

Schedule II narcotic, the sentencing range for his possession of methamphetamine

conviction was imprisonment “for not less than five years nor more than 30 years”

based on the sentencing statute in effect at the time of his offense. OCGA § 16-13-30

(c) (2010). In light of its finding that Thompson was a recidivist under OCGA § 17-

10-7 (c), the trial court sentenced him to 30 years for possession of

methamphetamine, with the first 10 years served in confinement without the

possibility of parole and the remainder on probation.2 This appeal followed.

      1. Thompson contends that the trial court committed reversible error in

admitting the loss prevention report under the business records exception to hearsay,

OCGA § 24-8-803 (6).3 Because the jury trial in this case was conducted in April

      2
         On the aggravated assault count, the trial court sentenced Thompson to 20
years, to serve 10 years in confinement and the remainder on probation, and on the
felony shoplifting account, the court sentenced him to serve 10 years in confinement.
Both sentences ran concurrent to Thompson’s 30-year sentence for possession of
methamphetamine.
      3
        Thompson also argues that the admission of the loss prevention report
violated his Sixth Amendment right to confrontation under Crawford v. Washington,
541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004). However, Thompson waived any
objection under Crawford by failing to object on this ground at trial. See Melendez-
Diaz v. Massachusetts, 557 U. S. 305, 314, n. 3 (129 SCt 2527, 174 LE2d 314)
(2009); Lane v. State, 324 Ga. App. 303, 314 (6) (750 SE2d 381) (2013).


                                         5
2013, Georgia’s new Evidence Code applies. See Ga. Laws 2011, p. 99, § 101. Under

the new Evidence Code, business records are admissible as an exception to hearsay

if certain criteria are satisfied:

       Unless the source of information or the method or circumstances of
       preparation indicate lack of trustworthiness and subject to the provisions
       of Chapter 7 of this title,[4] a memorandum, report, record, or data
       compilation, in any form, of acts, events, conditions, opinions, or
       diagnoses [is admissible], if (A) made at or near the time of the
       described acts, events, conditions, opinions, or diagnoses; (B) made by,
       or from information transmitted by, a person with personal knowledge
       and a business duty to report; (C) kept in the course of a regularly
       conducted business activity; and (D) it was the regular practice of that
       business activity to make the memorandum, report, record, or data
       compilation, all as shown by the testimony of the custodian or other
       qualified witness or by certification that complies with paragraph (11)
       or (12) of Code Section 24-9-902 or by any other statute permitting
       certification. . . .


OCGA § 24-8-803 (6).

       “This Court reviews a trial court’s ruling on the admission of evidence under

an abuse of discretion standard.” (Citation and punctuation omitted.) Gant v. State,

313 Ga. App. 329, 335 (2) (721 SE2d 913) (2011); see also Rock, supra, 922 F2d at


       4
           Chapter 7 addresses “Opinions and Expert Testimony.”

                                           6
277 (II) (A). “A proper application of the abuse-of-discretion review recognizes ‘the

range of possible conclusions the trial judge may reach,’ and that there will often be

occasions in which we will affirm the evidentiary ruling of a trial court ‘even though

we would have gone the other way had it been our call.’” (Citation, punctuation and

footnote omitted.) Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261)

(2014).

      In the present case, the police lieutenant testified that after Thompson was

apprehended, he returned the stolen camera and game console to the store’s loss

prevention officer so that he could complete his report and check the prices of the

items. The loss prevention officer at that point prepared the loss prevent report in

which he identified Thompson by his first and middle name as the shoplifter,

provided a physical description of Thompson, listed the assistant manager as a

witness, and identified the stolen items and their prices. Thompson argues that the

loss prevention report did not qualify under the business records exception because

it was prepared in anticipation of prosecution, and “did not have the degree of

trustworthiness associated with business records.” We disagree.

      It is true that a record prepared in anticipation of prosecution is not made in the

regular course of business. Cf. Rackoff v. State, 281 Ga. 306, 309 (2) (637 SE2d 706)

                                           7
(2006). But the type of report created by Costco cannot be used by Costco to

anticipate prosecution, because the parties to the prosecution are the State and the

shoplifting suspect. See, e.g., Brown v. State, 274 Ga. 31, 33-34 (1) (549 SE2d 107)

(2001) (police report prepared in State prosecution for possession of cocaine). While

Costco may have an interest in seeing that a shoplifting suspect is prosecuted and

incarcerated and thus no longer able to shoplift from its store, it simply is not a party

to any potential prosecution and cannot anticipate what action the State may take, as

not all shoplifters are apprehended and not all apprehended shoplifters are prosecuted.

      Even without considering Costo’s non-party status, Costco did not make the

report at the request of the State. See United States v. Blackburn, 992 F2d 666, 670

(7th Cir. 1993) (report prepared at request of FBI in robbery case). Indeed, the officer

on the scene testified that he was not sure that Costco was “familiar with what we

needed for that criminal case.” Since Costco prepares a loss prevention report in

every instance of shoplifting, concerns about reliability and trustworthiness are

minimized. Therefore, under the facts of this case, Costco’s report was not made in

anticipation of prosecution and is therefore admissible.

      The dissent cites Professor Milich for the proposition that “[i]ncident reports

prepared by a business after an accident or other event likely to lead to litigation are

                                           8
normally inadmissible as business records, even if the business routinely prepares

such records in such circumstances.” (Emphasis supplied.) Paul S. Milich, Georgia

Rules of Evidence, § 19:11 pp. 760-761 (2014-2015). Milich relies upon Palmer v.

Hoffman, 318 U. S. 109 (63 SCt 477, 87 LE2d 645) (1943), for this conclusion. The

Palmer Court considered whether the report regularly recorded was for “the

systematic conduct of the enterprise.” Id. at 114 (I). Palmer was decided before the

formulation and adoption of the Federal Rules of Evidence. See BP Amoco Chemical

Co. v. Flint Hills Resources, LLC, 2009 U.S. Dist. LEXIS 131268 at 17 (III) (N.D.

Illinois 2009). The Palmer Court analyzed the business record standard found in 28

U.S.C. § 695, which contained language similar to the language of OCGA § 24-8-803

(6), but required only that the record was “made in the regular course of any

business.” Palmer, supra, 318 U. S. at 111 (I) n.1. OCGA § 24-8-803 (6) (C) provides

that the record may be admissible if “kept in the course of a regularly conducted

business activity.” The statute incorporated language equivalent to the “systematic

conduct of the enterprise” language in Palmer.

      The Palmer Court held that the basis for the requirement that records are made

for the “systematic conduct of the enterprise” is the “probability of trustworthiness

of records because they were routine reflections of the day to day operations of a

                                         9
business.” Id. at 113-114 (I). It explained that to be admissible, and as now required

by OCGA § 24-8-803 (6) (C), the regularly produced reports must have something

to do with the management or operation of the business. Id. at 113 (I). The court

concluded that a statement made by a train engineer during an interview by an

assistant superintendent and a representative of the state public utilities commission

about a grade crossing accident was calculated for use in court, and not for the

business of railroading. Id. at 112-114 (I). Thus, it lacked the reliability inherent in

a record made for the systematic conduct of an enterprise and was therefore

inadmissible.

      As noted by Professor Milich, the rule generally prohibiting the admission of

an incident report is not absolute. Certainly the day-to-day operations of a retail

business include preventing the loss of the merchandise it sells and keeping a record

of that merchandise, as the title of the report suggests.5 The inclusion of other

      5
        The dissent argues that the State failed to come forward with evidence that the
reports were “made for the systematic conduct of the business as a business” or as
required under the new Evidence Code, “kept in the course of a regularly conducted
business activity.” But the report itself and the testimony of the records custodian
satisfy this requirement. Costco is in the business of selling merchandise, and the loss
prevention report is a record of merchandise lost by shoplifting that is entered into the
business filing system. Indeed, Costco employs a loss prevention agent. The report
was therefore “kept in the course of a regularly conducted business activity,”
satisfying the third foundational requirement of OCGA § 24-8-803 (6) (C).

                                           10
information, such as the identity of any witnesses to a shoplifting incident and

whether police were called to the scene, does not alter the analysis here. As Professor

Milich explains further, “[t]he more routine the type of record involved, the more

likely the business has developed, though repetition and experience, a reliable system

for creating the records.” Milich, supra at § 19:11 p. 760. Moreover, “if the report is

routinely prepared in a response to an event that normally would not lead to litigation,

but in this instance subsequently does, the report may be admissible under the

business record exception.” Milich, supra at § 19:11 pp. 760-761. See, e. g., Hill

Aircraft & Leasing Corp. v. Cintas Corp. 169 Ga. App. 747, 749-750 (2) (315 SE2d

263) (1984) (physical precedent only) (memorandum made by employer concerning

facts of employees’ termination admissible as routine business entry).6 The routinely

prepared report here meets these criteria.

      Finally, we conclude that because the foundational elements of OCGA § 24-8-

803 (6) were satisfied here, “a rebuttable presumption of trustworthiness of the

evidence is created.” Ronald L. Carlson & Michael Scott Carlson, Carlson on


      6
         While technically physical precedent only, Hill Aircraft & Leasing Corp.,
supra, has been cited repeatedly with approval and without notation of its precedential
status. See, e. g., Jerkins v. Jerkins, 300 Ga. App. 703, 707 (3) (686 SE2d 324)
(2009).

                                          11
Evidence, p.546 (3d ed. 2015).7 And, as the opponent to the admission of the

evidence, Thompson was required to rebut this presumption, which he failed to do.

The trial court therefore did not err in allowing the admission of the loss prevention

report under the business record exception to the hearsay rule.

      Because we conclude that the loss prevention report was properly admitted, we

need not address Thompson’s claim that insufficient evidence supports this count

because the report was the sole source of value for the felony shoplifting conviction.

See OCGA § 16-8-14 (b) (2).

      2. Thompson further contends that the evidence was insufficient to support his

conviction for aggravated assault. We disagree.

             A person may be found guilty of aggravated assault if the State
      proves (1) an assault and (2) aggravation by use of any object, device,
      or instrument which, when used offensively against a person, is likely
      to or actually does result in serious bodily injury. The State may prove
      an assault by showing that the defendant committed an act that placed
      the victim in reasonable apprehension of immediately receiving a violent
      injury.




      7
       As noted by Carlson, OCGA § 24-8-803 (6) closely tracks Federal Rule 803
(6). Carlson & Carlson, supra at 543.

                                         12
(Citations and punctuation omitted.) Myrick v. State, 325 Ga. App. 607, 608 (1) (754

SE2d 395) (2014). See OCGA §§ 16-5-20 (a) (2) (2010);16-5-21 (a) (2) (2010). The

aggravated assault count of the indictment averred in relevant part that Thompson

made an assault upon the store’s loss prevention officer “with a Sheffield razor knife,

an object which when used offensively against a person is likely to or actually does

result in serious bodily injury.”

      At trial, the store’s assistant manager testified regarding the encounter between

Thompson and the loss prevention officer that he witnessed in the exit area of the

store. The assistant manager testified that, after pushing down the loss prevention

officer and falling on top of him, Thompson jumped up, took a few steps forward, and

pulled a knife out of his pocket. According to the assistant manager, Thompson held

the knife out in front of him and waived it towards the officer “[i]n a threatening

manner,” and when the officer saw the knife, he stepped back, “put his hands back,”

and stopped trying to physically apprehend Thompson. Thompson then took off

running through the parking lot. The police lieutenant who subsequently apprehended

Thompson described the knife found on his person as a “razor knife,” and the State

introduced the knife into evidence. This combined testimony was sufficient to sustain

Thompson’s conviction for aggravated battery. See, e. g., Hartley v. State, 299 Ga.

                                          13
App. 534, 534-535, 537 (1) (683 SE2d 109) (2009). In reaching this conclusion, we

note that the victim of the aggravated assault, the loss prevention officer, was not

required to testify to sustain Thompson’s conviction, given the eyewitness testimony

of the assistant manager. See, e. g., Bostic v. State, 294 Ga. 845, 847 (1) (757 SE2d

59) (2014) (noting that “the failure of a victim of an assault to testify at trial does not

necessarily result in the evidence against the defendant being insufficient”); Petro,

327 Ga. App. at 257-258 (1) (a) (although victim did not testify, testimony of

eyewitness who saw the encounter was sufficient to sustain aggravated assault

conviction).

       Thompson emphasizes that the assistant manager testified that Thompson was

“maybe 15 feet” from the loss prevention officer when he waived the knife towards

him in a threatening manner, and argues that, as a result, the officer was not in

reasonable apprehension of immediately receiving a violent injury as a matter of law.

We disagree. To prove that a victim had a reasonable apprehension of immediately

receiving a violent injury,

       there need not be an actual present ability to commit a violent injury
       upon the person assailed, but if there be such a demonstration of
       violence, coupled with the apparent ability to inflict the injury, so as to
       cause the person against whom it is directed reasonably to fear the injury

                                            14
      unless he retreat to secure his safety, and under such circumstances he
      is compelled to retreat to avoid an impending danger, the assault is
      complete, though the assailant may never have been within actual
      striking distance of the person assailed.


(Citation and punctuation omitted.) King v. State, 213 Ga. App. 268, 269 (444 SE2d

381) (1994). Moreover, “[t]he focus of a reasonable apprehension of harm is on the

apprehension of the victim, and it is for the factfinder to determine whether the

victim’s apprehension was reasonable.” (Citations and punctuation omitted.) Bearden

v. State, 291 Ga. App. 805, 807 (662 SE2d 736) (2008).

      As noted above, the assistant manager testified that in response to Thompson

brandishing the razor knife, the loss prevention officer stepped back, put his hands

back, and stopped trying to physically apprehend Thompson. Hence, the evidence,

construed in favor of the prosecution, showed that even assuming Thompson was not

in actual striking distance of the loss prevention officer, the only reason for that

distance was that he brandished the knife in a manner that caused the officer to stop

moving towards Thompson out of fear for his safety. Under these circumstances, a

rational jury could find that the loss prevention officer was placed in reasonable

apprehension of immediately receiving a violent injury, even if Thompson was not

within actual striking distance with the knife. See King, 213 Ga. App. at 269.

                                         15
      3. Thompson also contends that the trial court’s decision to sentence him to 30

years for possession of methamphetamine, with the first 10 years served in

confinement without the possibility of parole and the remaining 20 years on

probation, constitutes cruel and unusual punishment under the Eighth Amendment to

the United States Constitution. We do not agree.

      The Eighth Amendment to the United States Constitution, applied to the states

through the Fourteenth Amendment, provides: “Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments inflicted.” A

punishment is cruel and unusual “in the rare circumstance where the defendant’s

sentence is ‘grossly disproportionate’ to the underlying crime.” Middleton v. State,

313 Ga. App. 193, 194 (721 SE2d 111) (2011). See Graham v. Florida, 560 U.S. 48,

60 (II) (130 SCt. 2011, 176 LE2d 825) (2010).

      With respect to whether a sentence is grossly disproportionate, courts
      must begin by comparing the gravity of the offense and the severity of
      the sentence. If this threshold comparison does not create an inference
      of gross disproportionality, the Eighth Amendment analysis extends no
      further. It is the rare case in which a threshold comparison of the crime
      committed and the sentence imposed leads to an inference of gross
      disproportionality.




                                         16
(Citations and punctuation omitted.) Jones v. State, 325 Ga. App. 845 (1) (755 SE2d

238) (2014). If the defendant’s sentence falls within the statutory range of punishment

for the crime set by the legislature, a presumption arises that the sentence does not

violate the Eighth Amendment, and the “presumption remains until a defendant sets

forth a factual predicate showing that such legislatively authorized punishment was

so overly severe or excessive in proportion to the offense as to shock the conscience.”

(Citation omitted.) Cuvas v. State, 306 Ga. App. 679, 683 (2) (703 SE2d 116) (2010).

      Thompson concedes that his sentence fell within the statutory range for

possession of methamphetamine under the sentencing provision applicable to a

second drug possession conviction that was in effect at the time he committed the

current offense. See OCGA § 16-13-30 (c) (2010) (authorizing “imprisonment for not

less than five years nor more than 30 years” for second or subsequent convictions of

certain drug offenses). But Thompson argues that his sentence nevertheless was

grossly disproportionate to the offense, given that the General Assembly subsequently

amended OCGA § 16-13-30 to reduce the sentence to one-to-three years for the

amount of methamphetamine he possessed in this case. See OCGA § 16-13-30 (c) (1)

(2014). Quoting from Humphrey v. Wilson, 282 Ga. 520, 528 (3) (c) (652 SE2d 501)

(2007), Thompson argues that “no one has a better sense of the evolving standards

                                          17
of decency in this State than our elected representatives,” and that the statutory

amendments to OCGA § 16-13-30 thus “reflect a decision by the people of this State

that the severe felony punishment imposed on [defendants under the prior law] makes

no measurable contribution to acceptable goals of punishment.” While we are

sympathetic to Thompson’s argument here, we are constrained to uphold the sentence

existing at the time of his offense.

      In Humphrey, 282 Ga. at 520-521 (1), the defendant received an 11-year

sentence, with 10 years to serve in confinement and 1 year on probation, for

aggravated child molestation for engaging in consensual oral sex when he was 17

years old and the victim was 15 years old. Relying in part on the General Assembly’s

2006 amendment to the aggravated child molestation statute, which would have

afforded the defendant misdemeanor punishment if it had been enacted before he

committed his crime, our Supreme Court held that the defendant’s sentence was

grossly disproportionate to the offense and thus constituted cruel and unusual

punishment. Id. at 527-530 (3) (c).8



      8
       We applied Humphrey in another aggravated child molestation case involving
nonviolent sexual contact between teenagers. See Morris v. State, 300 Ga. App. 355,
358-359 (685 SE2d 348) (2009).

                                        18
      Subsequently, however, in Bradshaw v. State, 284 Ga. 675, 678 (2) (a) (671

SE2d 485) (2008), our Supreme Court rejected an expansive reading of Humphrey

and “decline[d] to engraft onto every statutory change enacted by the General

Assembly an interpretation that the legislature is thus making a pronouncement of

constitutional magnitude.” (Citation and punctuation omitted.) The Supreme Court

concluded that the most recent legislative pronouncement on a punishment “does not

preclude or in any manner limit [a court’s] evaluation of [a defendant’s] sentence to

determine whether it comports with the constitutional prohibition against cruel and

unusual punishment.” (Citation and punctuation omitted.) Id. The Court then went on

to examine the gravity of the offense and the severity of the sentence to determine

whether the case raised a threshold inference of gross disproportionality. Id. at 679-

680 (2) (b), (c). Thus, when read together, Humphrey and Bradshaw make clear that

a statutory amendment by the legislature is one factor to consider as part of a court’s

analysis into gross disproportionality, but it is not dispositive; courts still must

examine the gravity of the offense and the severity of the sentence to determine

whether a threshold inference of gross disproportionality has been raised.

      Applying these principles to the present case, we conclude that Thompson has

failed to show that this is one of those rare cases that raises a threshold inference of

                                          19
gross disproportionality, even though the General Assembly has amended OCGA §

16-13-30 to reduce the range of punishment for possession of methamphetamine.

Notably, while the statute has been amended to reduce the range of punishment, the

General Assembly included a savings clause making clear its intention to maintain

the sentencing structure for crimes committed prior to the effective date of any

amendment. See Ga. L. 2012, p. 899, § 9-1(b)/HB 1176. Therefore, the General

Assembly itself has made clear that it did not intend for the changes to OCGA § 16-

13-30 reducing the range of punishment to serve as “a pronouncement of

constitutional magnitude” or “to preclude or in any manner limit” our evaluation of

a defendant’s sentence under the old version of the statute “to determine whether it

comports with the constitutional prohibition against cruel and unusual punishment.”

(Citation and punctuation omitted.) Bradshaw, 284 Ga. at 678 (2) (a).

      Here, given the fact that Thompson faced a potential sentence of 30 years in

confinement, his sentence of 10 years in confinement followed by 20 years on

probation does not raise a threshold inference of gross disproportionality.

Accordingly, Thompson has failed to demonstrate that his sentence constitutes cruel

and unusual punishment under the Eighth Amendment. See Bragg v. State, 296 Ga.

App. 422, 425-426 (674 SE2d 650) (2009) (defendant’s sentence to 20 years, with 10

                                        20
years in confinement and the remainder on probation, for child molestation, did not

raise threshold inference of gross disproportionality, despite certain legislative

amendments to the statute in question).

      4. Lastly, Thompson contends that the trial court erred in sentencing him as a

recidivist under OCGA § 17-10-7 (c). According to Thompson, five of his prior

felony cases should have been considered “consolidated for trial” under OCGA § 17-

10-7 (d), thereby rendering his recidivist designation improper. We discern no

reversible error by the trial court.

      OCGA § 17-10-7 (c) states that any person convicted of three prior felonies,

upon conviction of a fourth felony, must “serve the maximum time provided in the

sentence of the judge . . . and shall not be eligible for parole until the maximum

sentence has been served.” But if two or more of the prior felony convictions were

“consolidated for trial,” they must be treated as one prior conviction for purposes of

recidivist sentencing. OCGA § 17-10-7 (d). “In determining whether separate

offenses should be considered ‘consolidated for trial’ for purposes of recidivist

sentencing, we look to the totality of the circumstances.” (Citations and footnote

omitted.) Stone v. State, 245 Ga. App. 728, 728 (538 SE2d 791) (2000).



                                          21
      “If separate offenses are charged under separate charging instruments and a

defendant is sentenced under separate orders, the offenses are generally not

consolidated for trial within the meaning of OCGA § 17-10-7 (d).” (Citation and

punctuation omitted.) Baker v. State, 306 Ga. App. 99, 103 (2) (701 SE2d 572)

(2010). If the prior offenses “were the result of separate indictments and a separate

order of sentence was entered on each indictment,” there is no consolidation even if

the sentences for the offenses were entered on the same day and were run concurrent

to one another. Philmore v. State, 263 Ga. 67, 70 (6) (428 SE2d 329) (1993).

      At the sentencing hearing, the State introduced certified copies of the

indictment, guilty pleas, and sentences received by Thompson for multiple prior

felony offenses that were charged in six different cases, hereinafter referred to as the

Drug Possession Case and the Five Theft Cases. In the Drug Possession Case,

Thompson pled guilty to possession of methadone and was sentenced in May 2011.

In the Five Theft Cases, Thompson pled guilty on the same day in May 1998 to

multiple theft-related offenses. Each of the Five Theft Cases involved different

incidents involving different victims and different property and had its own

accusation or indictment. The sentences entered in the Five Theft Cases were

documented on separate sentencing orders.

                                          22
      Thompson argues that his convictions in the Five Theft Cases should have been

treated as consolidated for trial and thus treated as one prior felony offense.

Thompson emphasizes that, although the trial court entered separate sentencing

orders for the Five Theft Cases, the sentencing order entered in the Fifth Theft Case

includes a provision under “other conditions of probation” that addresses restitution

that must be paid by Thompson for property that was the subject of the Third and

Fourth Theft Cases. Additionally, the sentencing order entered in the Second Theft

Case incorporates by reference all of the conditions of probation imposed in the Fifth

Theft Case.

      The First Theft Case had a separate indictment and sentencing order from the

other Theft Cases and was not referenced in the sentencing orders entered in the other

Theft Cases. Consequently, the First Theft Case could be treated as a separate prior

felony offense from the other four Theft Cases for purposes of recidivist sentencing.

See Philmore, 263 Ga. at 69 (6). Therefore, even if we were to assume without

deciding, that the trial court erred in not treating the Second, Third, Fourth, and Fifth

Theft Cases as consolidated for trial, the Theft Cases still could provide two of the

three prior felony offenses necessary for the imposition of a recidivist sentence under

OCGA § 17-10-7 (c).

                                           23
      Thompson’s conviction in the Drug Possession Case provided the third prior

felony offense. Accordingly, any error by the trial court in failing to treat four of the

Theft Cases as consolidated for trial under OCGA § 17-10-7 (d) was harmless, given

that, even with the error, there still were three prior felony offenses authorizing

recidivist sentencing under OCGA § 17-10-7 (c). See Williams v. State, 326 Ga. App.

418, 423 (8) (756 SE2d 650) (2014) (even if trial court erred in determining number

of prior felonies, error was harmless because there still were a sufficient number of

prior felonies to authorize defendant’s recidivist sentence). It follows that Thompson

was properly sentenced as a recidivist.

      Judgment affirmed. Ellington, P. J., Dillard and Branch, JJ., concur. Doyle,

P. J., concurs in Divisions 2, 3 and 4 and in the judgment . Barnes, P. J., and Miller,

J., concur in Divisions 2-5 and dissents in Division 1.




                                         24
 A14A2161. THOMPSON v. THE STATE.



      BARNES, Presiding Judge, concurring in part and dissenting in part.

      Because the store shoplifting report relied upon by the prosecution was

prepared in anticipation of litigation, the trial court erred in admitting it under the

business record exception to hearsay. And admission of the shoplifting report harmed

Thompson because it provided the only evidence of the value of the items stolen from

the store to support his felony shoplifting conviction. We therefore should reverse

Thompson’s conviction for felony shoplifting. Because the majority concludes

otherwise, I respectfully dissent to Division 1 of the majority opinion.1

      Under Georgia’s new evidence code, a document is admissible under the

business record exception to hearsay if, among other things, the document is of the

type routinely made in the regular course of business. OCGA § 24-8-803 (6). But

it is well-established that a record prepared in anticipation of litigation is not made

in the “regular course” of business and lacks the requisite degree of reliability and

trustworthiness for admission under the business record exception. See Stewart v.

State, 246 Ga. 70, 74 (3) (268 SE2d 906) (1980) (forms containing payroll



      1
          I concur fully in Divisions 2-5.
information inadmissible as business records because prepared in anticipation they

would be used as part of government investigation and litigation); Goss v. Mathis,

188 Ga. App. 702 (373 SE2d 807) (1988) (documents providing estimation of

expenses and value of labor inadmissible as business records because prepared in

anticipation of litigation); Reach Out v. Capital Assoc., 176 Ga. App. 585, 585-586

(1) (336 SE2d 847) (1985) (report listing outstanding rental payments and amounts

owed on lease inadmissible as business record because prepared in anticipation of

litigation).2 Thus, “[i]ncident reports prepared by a business after an accident or other

event likely to lead to litigation are normally inadmissible as business records.” Paul

S. Milich, Ga. Rules of Evidence, § 19:11, p. 758 (2013–2014 ed.). See Palmer v.

Hoffman, 318 U.S. 109, 113-115 (63 SCt 477, 87 LE 645) (1943) (accident report

prepared by railroad after train accident was inadmissible as business record because

“those reports are not for the systematic conduct of the enterprise as a railroad

business” but rather “are calculated for use essentially in the court”); Scheerer v.


      2
         See also United States v. Arias-Izquierdo, 449 F.3d 1168, 1183-1184 (11th
Cir. 2006) (report documenting airline passenger information was inadmissible as
business record because prepared in anticipation of trial); Noble v. Alabama Dept. of
Environmental Mgmt., 872 F.2d 361, 366-367 (11th Cir. 1989) (letter with
attachments inadmissible as business record because prepared in anticipation of
litigation).


                                           2
Hardee’s Food Sys., 92 F.3d 702, 706-707 (8th Cir. 1996) (incident report prepared

by restaurant after slip-and-fall accident was inadmissible as business record); Rock

v. Huffco Gas & Oil Co., 922 F.2d 272, 279 (5th Cir. 1991) (accident reports and logs

documenting plaintiff’s injuries were inadmissible as business records). Incident

reports are excluded from the business record exception under the rationale that they

are prepared by a business “with the knowledge that the incident could result in

litigation” and therefore are susceptible to manipulation, Scheerer, 92 F.3d at 706-

707, and are not “made for the systematic conduct of the business as a business” but

rather have their “primary utility . . . in litigating.” Palmer, 318 U.S. at 112, 114.

      While we review a trial court’s decision to admit or exclude evidence under an

abuse-of-discretion standard, Owens v. State, 329 Ga. App. 455, 458 (1) (b) (765

SE2d 653) (2014), a trial court’s discretion is not without limits. See Williams v.

State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014) (noting that abuse-of-

discretion standard “does not permit a ‘clear error of judgment’ or the application of

‘the wrong legal standard’”) (footnote omitted). We have not hesitated to reverse a

trial court that erroneously admits a document under the business record exception

to the hearsay rule, where the document was prepared in anticipation of litigation

rather than in the regular course of business. See, e.g., Reach Out, 176 Ga. App. at


                                           3
585-586 (1). This is because the presumption of reliability and trustworthiness

normally afforded business records “collapses when any person in the process is not

acting in the regular course of business.” (Citation and punctuation omitted). Rock v.

Huffco Gas & Oil Co., 922 F.2d 272, 279 (5th Cir. 1991).

      In the present case, the evidence introduced at trial reflects that after the police

lieutenant apprehended Thompson in the store parking lot, the lieutenant returned the

stolen camera and game console to the store’s loss prevention officer so that the

officer could “complete his report and check the prices on the items, the things that

are necessary for that case file.” The loss prevention officer at that point prepared a

report about the shoplifting incident (the “Shoplifting Report”). He checked the box

at the top of the form for “shoplifting,” listed the time and date of the incident,

identified Thompson by name as the shoplifter, provided a physical description of

Thompson, listed the assistant manager as a witness, and identified the stolen items

and their prices. The Shoplifting Report also included a section entitled “Disposition

Information” in which the loss prevention officer listed the time the police were

called, the time they arrived on the scene, the time Thompson was detained by the

police, the name of the responding police officer, the police officer’s identification

number and telephone number, and the police department case number. The loss


                                           4
prevention officer checked a box on the Shoplifting Report indicating that the

returned merchandise would be “retained as evidence at warehouse,” and the bottom

of the report included an instruction for the person completing it to provide a “copy

to police department.”

      Given this record, the evidence shows that the loss prevention officer prepared

the Shoplifting Report to memorialize the facts surrounding the shoplifting incident

with the anticipation that Thompson would be criminally prosecuted, and, therefore,

that the report was prepared “in anticipation of litigation” such that it could not

qualify as a business record. See Scheerer, 92 F.3d at 707 (concluding that the

“incident report shows on its face that it was prepared in anticipation of litigation” in

light of the information sought in the report and the directions on the report to the

employee completing it). And although the store’s assistant manager testified that

reports were routinely prepared by loss prevention agents whenever there was a

shoplifting incident, his testimony did not transform the Shoplifting Report into an

admissible business record. See Milich, supra, § 19:11, p. 758 (incident reports

excluded “even if the business routinely prepares such records in such

circumstances”). See also Palmer, 318 U.S. at 113 (noting that “the fact that a

company makes a business out of recording its employees’ versions of their accidents


                                           5
does not put those statements in the class of records made ‘in the regular course’ of

the business”); Reach Out, 176 Ga. App. at 585-586 (1) (“Although the appellee’s

collection manager uses the appropriate legal incantation in his description of the

referral status report, the report fails to qualify as a business record[.] Rather, the

report was an ‘in-house’ information summary prepared in anticipation of

litigation.”). Accordingly, the trial court erred in admitting the Shoplifting Report as

a business record.

      In reaching the opposite conclusion, the majority maintains that Thompson

failed to rebut “the presumption of trustworthiness” afforded the Shoplifting Report.

However, because the Shoplifting Report was prepared in anticipation of litigation,

it was not made in the “regular course” of business. See Echo Acceptance Corp. v.

Household Retail Servs., 267 F3d 1068, 1091 (10th Cir. 2001) (noting that “one who

prepares a document in anticipation of litigation is not acting in the regular course of

business.”). One of the foundational elements of OCGA § 24-8-803 (6) thus was not

satisfied, and no presumption was created. See Ronald & Michael Scott Carlson,

Carlson on Evidence, p.546 (3d ed. 2015) (presumption of trustworthiness applies

“[w]hen a party offers documentary evidence under Rule 803 (6) and establishes the

requisite foundation for its admission”) (emphasis supplied). See also Rock, 922 F.2d


                                           6
at 279 (presumption of trustworthiness “collapses” when document not prepared in

the regular course of business) (citation and punctuation omitted); AAMCO

Transmissions v. Baker, 591 F. Supp. 2d 788, 798 (E.D. Pa. 2008) (holding that “the

assumption of reliability, accuracy, and trustworthiness underlying Rule 803 (6) [did]

not apply” where the party seeking admission of the memorandum at issue “failed to

show [that it was created] in the course of regularly conducted business activity, and

not in anticipation of litigation”).

      The majority also places undue emphasis on the fact that the store was not a

party to the criminal prosecution. While not a party to the criminal prosecution, a

business, as the majority concedes, still has “an interest in seeing that a shoplifting

suspect is prosecuted and incarcerated and thus no longer able to shoplift from its

store.” Given the business’s interest in the success of the prosecution, the same

trustworthiness and reliability concerns arise, irrespective of whether the litigation

is civil or criminal. See, e.g., United States v. Blackburn, 992 F.2d 666, 670 (7th Cir.

1993) (treating documents prepared by business in anticipation of criminal

prosecution of robbery suspect as raising the same concerns over trustworthiness and

reliability as other documents “made in anticipation of litigation”).           This is

particularly true where, as in this case, the business initiates contact with the police


                                           7
and has the shoplifting suspect arrested. Because the business could face civil

liability for malicious prosecution if the criminal prosecution is later dismissed, the

business has a vested interest in ensuring that the State succeeds in its prosecution of

the suspect.

      Finally, the majority glosses over the incomplete record developed by the State

with respect to the Shoplifting Report, which fails to show that the Report was

prepared by the store for some underlying business purpose other than anticipated

litigation. The State failed to elicit any testimony whatsoever from the store’s

assistant manager or any other witness explaining whether or to what extent

shoplifting reports were used in the store’s underlying business operations, such as

for inventory control or insurance purposes, rather than simply to memorialize

shoplifting incidents for purposes of anticipated criminal or civil litigation. Given the

entire absence of any testimony on this issue, there is simply no evidence that

shoplifting reports were “made for the systematic conduct of the business as a

business,” Palmer, 318 U.S. at 113, and thus in the regular course of the store’s

business under OCGA § 24-8-803 (6).

      For these reasons, I would conclude that the trial court erred in admitting the

Shoplifting Report as a business record. Furthermore, nonconstitutional error is


                                           8
harmless in a criminal case only if it is “highly probable that the error did not

contribute to the judgment,” Leverette v. State, 303 Ga. App. 849, 852 (2) (696 SE2d

62) (2010) (footnote omitted), and when that test is applied in this case, it is clear that

the erroneous admission of the Shoplifting Report was harmful with respect to

Thompson’s conviction for felony shoplifting.

       To prove felony shoplifting under the law as it existed at the time of the

offense, the State was required to show that the value of the property stolen by

Thompson was over $300. OCGA § 16-8-14 (b) (1) (2010).3 “Value,” according to

the statute, “means the actual retail price of the property at the time and place of the

offense,” and “[t]he unaltered price tag or other marking on property, or duly

identified photographs thereof, shall be prima-facie evidence of value and ownership

of the property.” OCGA § 16-8-14 (c) (2010).

       The State did not introduce the price tags for the stolen camera and game

console, photographs of the tags, or testimony regarding the prices from an employee

at the store with personal knowledge regarding pricing. Instead, the sole evidence of

the value of the stolen items introduced by the State was the Shoplifting Report.


       3
        The current version of the statute requires the State to show that the value of
the stolen property was over $500 to sustain a conviction for felony shoplifting. See
OCGA § 16-8-14 (b) (1) (2014).

                                            9
Consequently, the improper admission of the Shoplifting Report contributed to

Thompson’s felony shoplifting conviction, and we should reverse his conviction and

sentence on that count of the indictment.

      I am authorized to state that Judge Miller joins in this dissent.




                                         10