This opinion is uncorrected and subject to revision by the court.
BOGGS, Judge. 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 dissent in Division 1. BARNES, Presiding Judge, concurring in part and dissenting in part.
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 S.E.2d 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 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 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. 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 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. 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). Because the jury trial in this case was conducted in April 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, 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 S.E.2d 913) (2011); see also Rock, supra, 922 F.2d at 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 S.E.2d 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 S.E.2d 706) (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 S.E.2d 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 F.2d 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 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 S.Ct. 477, 87 L.Ed.2d 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, 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 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 ...