                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. EARITH


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                V.

                                  JAIME L. EARITH, APPELLANT.


                            Filed October 29, 2019.    No. A-19-013.


        Appeal from the District Court for Lancaster County, ANDREW R. JACOBSEN, Judge, on
appeal thereto from the County Court for Lancaster County, LAURIE J. YARDLEY, Judge. Judgment
of District Court affirmed.
       Joe Nigro, Lancaster County Public Defender, and Brittani Lewit for appellant.
       Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.


       MOORE, Chief Judge, and PIRTLE and WELCH, Judges.
       WELCH, Judge.
                                       INTRODUCTION
         Jaime L. Earith appeals from her conviction for second offense theft by shoplifting in the
amount up to $500. During her jury trial, the county court admitted evidence of a prior shoplifting
conviction committed by Earith. Following Earith’s conviction and sentencing, she appealed to
the district court which affirmed the county court’s judgment. Earith now appeals, contending the
district court erred in affirming the county court’s findings that (1) evidence of a previous theft
committed by Earith was admissible and (2) there was sufficient evidence to support her
conviction. For the reasons set forth herein, we affirm.




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                                    STATEMENT OF FACTS
         Nathan Svitak, an asset protection manager for Walmart, testified that while working at
Walmart on July 27, 2017, he noticed Earith and her husband, Randy Earith, purchasing items in
the self-checkout aisle. Svitak testified he noticed that Earith was looking around nervously, almost
in a panic. In accordance with his training, while Earith and Randy were checking out, he observed
the items in Earith’s cart and testified that one of the items was a Coleman stove. After Earith
finished checking out and left the store with Randy, Svitak followed them to their car and
photographed the license plate. Svitak then returned to the store and obtained a copy of Earith’s
electronic receipt and surveillance video of Earith and Randy while they were inside the store. The
video showed Earith and Randy in the housewares department in an area obstructed from the view
of the surveillance camera for approximately 3 minutes. Svitak testified this area of the store
contains low-value items, including ice cream scoops and can openers.
         Svitak compared the video showing the items Earith scanned with the items listed on her
electronic receipt. Svitak testified the first item scanned by Earith was a pair of jeans, which was
listed on the electronic receipt as an ice cream scoop. Svitak testified the second and third items
scanned by Earith were articles of women’s clothing; however, it appeared as if Earith scanned the
same tag twice. These two items were listed on the electronic receipt as ice cream scoops. The
fourth item scanned was macaroni salad which was properly listed on the electronic receipt. The
fifth item scanned was a canned grocery item that was listed on the electronic receipt as an ice
cream scoop. The sixth item scanned was difficult for Svitak to see on the video, but he testified it
was not an ice cream scoop as was depicted on the electronic receipt. The seventh item scanned
was a bottle dispenser which was properly listed on the electronic receipt. The next item that Earith
appeared to scan was a Coleman stove; however, there was no Coleman stove listed on Earith’s
electronic receipt suggesting the item was not actually scanned. The eighth item scanned was a lint
roller which was properly listed on the electronic receipt. The ninth and tenth items scanned were
packages of pepper jack cheese which again properly matched the electronic receipt. The eleventh
item scanned was only identified by Svitak as a packaged item but was listed on the electronic
receipt as a pan scraper; however, Svitak testified that the item was not a pan scraper because the
item scanned was not a small, fluorescent-colored piece of silicone. The last two items scanned by
Earith were a package of hot dog buns, which was properly listed on the electronic receipt, and a
package of hamburger buns, which was not listed on the electronic receipt. The total cost listed on
the electronic receipt was $20.84. Earith then finalized the transaction by paying $21 in cash and
receiving change. After taking her change, Earith removed 14 items from the store.
         One of the unpaid items Earith removed from the store was the Coleman stove. Svitak
testified he printed a training receipt showing that the Coleman stove was priced at $18.78. Svitak
located the Coleman stoves in the store and observed the area was well “zoned,” meaning the items
were pulled to the front of the shelves, but stated there was a void among the stacked stoves
suggesting one of the Coleman stoves had been removed. Svitak also went to the area of the store
containing ice cream scoops and observed that some of the tags on the ice cream scoops were
missing. He testified one ice cream scoop still had the white residue from the tag stuck to the back
of it, but the barcode was missing from the tag. Svitak testified he has never observed a patron




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incorrectly scan five separate items as one identical item unless shoplifting was involved. Svitak
further testified manufacturers send merchandise with tags already on the items. After verifying
Earith had not properly paid for the items, Svitak reported the incident to police.
         Lincoln Police Officer Scott Arnold investigated the incident. Arnold testified that after
confirming Earith’s identity, he went to Earith’s residence. Upon arrival, Arnold saw a vehicle
matching the vehicle and license plate number provided by Svitak. Arnold approached a man
sitting in the vehicle who told Arnold the vehicle belonged to Earith. Arnold observed Walmart
shopping bags containing merchandise in the vehicle. Arnold testified he then issued Earith a
citation for theft.
         Earith called Randy as a witness for her defense. Randy testified they were planning a
camping trip and went to Walmart to purchase items needed for the trip. Randy testified that at the
self-checkout, his posttraumatic stress disorder and anxiety caused him to pressure Earith to
quickly scan the items so they could leave the store. Randy testified he believed Earith scanned
everything and that if he had noticed something was not scanned, he would have said something.
Randy further testified that he was carrying $2,200 that day, so if something was not scanned he
would have paid for it.
         Earith likewise testified that she and Randy were planning a camping trip and went to
Walmart to purchase supplies. Earith testified that while at the self-checkout counter, she listened
for the beep when items were scanned but did not look at the register’s screen. Earith testified she
heard a beep for every item she scanned. Earith testified that if she had known an item was not
scanned, she would have notified a store employee of the problem, so that it could be corrected.
Earith was asked whether in her prior experience she had any item ring up cheaper than the actual
price, and Earith responded, “[w]hether it’s in my favor or not is irrelevant. The fact that the price
that it’s supposed to be is what needs to be paid.” Earith testified that in past instances where
discrepancies occurred, she followed up with the store. Earith was also asked if she had experience
with an item not scanning, to which she stated, “anytime something did not scan . . . I know that I
would do my best to correct it.” Earith also testified that she believed she scanned everything, did
not switch price tags, and did not intend to pay a lower price for any item.
         After the defense rested and outside the presence of the jury, the State argued that in light
of Earith’s and Randy’s testimony, the State was entitled to offer evidence of Earith’s prior theft
conviction as rebuttal to establish an absence of mistake and for impeachment. This issue was
previously raised with the court in a pretrial Rule 404 hearing. See Neb. Evid. R. 404, Neb. Rev.
Stat. § 27-404 (Reissue 2016). Defense counsel objected for the same reasons argued during the
pretrial hearing, asserting the evidence was being offered for an improper purpose, i.e. to show
propensity. The county court determined:
         Ms. Earith opened the door when she basically said, “I’d take it back if I knew I hadn’t
         paid for it.” She went on and on and on. I think it comes in as impeachment, not to
         prove -- not 404, but she got up to the stand and said, “If I knew about it, I would take it
         back. I would always do that.” So, I think she opened the door.

In response, defense counsel requested the judge provide a limiting instruction to the jury.




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         During rebuttal, Scott Medina, a loss prevention leader at Shopko, testified Earith and
Randy concealed items at Shopko in 2015. Medina testified that the Shopko incident involved
Earith and Randy proceeding to the registers, followed by Earith going to the restroom while
Randy purchased some hangers and soda. Officers detained Earith and Randy and found that Earith
concealed jewelry on her person and a dash camera and shower curtain in her purse. Medina
testified that items were also recovered on Randy.
         Later, while referring to Medina’s testimony, the county court stated:
         [Y]esterday I ruled that it came in for impeachment, but, under further consideration, the
         Court is deciding I am going to let it in under 404 and for impeachment purposes: 404 to
         show “had the intent or knowledge, or absence of mistake or accident, to commit the theft
         of shoplifting by a shoplifting charge.” So that is the court’s ruling.

After closing arguments, the county court gave the jury instructions, including the following
limiting instruction:
                Members of the jury, the evidence that Ms. Earith may have shoplifted from Shopko
        has been received only for the limited purpose of helping you to decide whether Ms. Earith
        had the intent or knowledge or absence of mistake or accident to commit the Theft by
        Shoplifting charged. You must consider the evidence for that limited purpose and for no
        other, except as set forth in Instruction number 10.

       The jury found Earith guilty of theft by shoplifting with the property involved in the theft
valued at $45. At an enhancement hearing held a short time later, the county court noted Earith
was previously convicted of burglary and found Earith guilty of “theft by shoplifting, subsequent
offense.” The court then sentenced Earith to 30 days in jail.
       Earith appealed to the district court contending that the county court erred in admitting into
evidence the previous theft committed by her and alleging that the evidence was insufficient to
support her conviction. The district court affirmed the county court finding, specifically, that (1)
the Rule 404 evidence was admissible and the county court did not err in allowing the State to
present evidence of Earith’s prior shoplifting offense and (2) there was sufficient evidence to
support Earth’s second offense theft by shoplifting conviction.
                                  ASSIGNMENTS OF ERROR
       Earith argues the district court erred (1) in finding that the county court did not err in
admitting evidence of a previous theft committed by Earith and (2) in finding that the evidence
was sufficient to support her conviction of second offense theft by shoplifting.
                                    STANDARD OF REVIEW
        In an appeal of a criminal case from the county court, the district court acts as an
intermediate court of appeals, and its review is limited to an examination of the record for error or
abuse of discretion. State v. Hatfield, 300 Neb. 152, 912 N.W.2d 731 (2018). Both the district court
and a higher appellate court generally review appeals from the county court for error appearing on
the record. Id. When reviewing a judgment for errors appearing on the record, an appellate court’s




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inquiry is whether the decision conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable. Id. We review for abuse of discretion a trial court’s
evidentiary rulings on the admissibility of a defendant’s other crimes or bad acts under rule 404(2).
State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence. Id.
        In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, the standard is the same: an appellate
court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79
(2019). The relevant question for an appellate court 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. Id.
                                            ANALYSIS
                                  EVIDENCE OF PREVIOUS THEFT
        Earith argues evidence of her prior shoplifting incident was not admissible at trial. We
determine the evidence was admissible because it had independent relevance as to the issue of
intent. Thus, we affirm the district court.
        Section 27-404(2) states:
        Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
        person in order to show that he or she acted in conformity therewith. It may, however, be
        admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
        plan, knowledge, identity, or absence of mistake or accident.

(Please note that § 27-404 was amended effective September 1, 2019, but that amendment does
not apply to this case.)
       As the Nebraska Supreme court noted in State v. McManus, 257 Neb. 1, 4-5, 594 N.W.2d
623, 627 (1999):
       By its plain language, rule 404(2) prohibits the admission of evidence of other bad acts for
       the purpose of demonstrating a person’s propensity to act in a certain manner. However, as
       the second sentence of the above-quoted language indicates, the admission of other bad
       acts evidence is prohibited only if the relevance of such evidence is dependent upon the
       actor’s propensity to commit the act. Stated another way, evidence of other bad acts which
       is relevant for any purpose other than to show the actor’s propensity to commit the act is
       admissible under rule 404(2). Thus, rule 404(2) divides evidence of other bad acts into two
       categories according to the basis of the relevance of the acts: (1) relevant only to show
       propensity, which is not admissible, and (2) otherwise relevant (nonpropensity), which is
       admissible. Andrew J. Morris, Federal Rule of Evidence 404(B): The Fictitious Ban on
       Character Reasoning From Other Crime Evidence, 17 Rev. Litig. 181 (1998).




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         Here, Earith argues that the district court improperly affirmed the county court’s erroneous
ruling that evidence of Earith’s prior shoplifting incident at ShopKo was being offered for a proper
purpose and that this is a classic example of propensity evidence. In contrast, the State argues the
evidence was offered to rebut claims and defenses made by Earith during trial and was otherwise
relevant non-propensity evidence which was properly admitted with a limiting instruction. In order
to properly address this assigned error, we must determine whether evidence of the 2015
shoplifting incident at Shopko was offered for a “proper purpose.”
         As the Nebraska Supreme Court stated in McManus: ” Evidence that is offered for a proper
purpose is often referred to as having ‘special relevance’ or ‘independent relevance,’ which means
its relevance does not depend on its tendency to show propensity. . . . Thus, the term ‘independent
relevance’ is synonymous with the term ‘proper purpose.’” 257 Neb. at 8, 594 N.W.2d at 629
(citation omitted).
         Here, Earith’s defense to the charge of shoplifting was that she erroneously used the
self-checkout counter and did not realize she underpaid for the items that she checked out. Stated
differently, Earith argues that the failure to pay for the items she removed from the store was a
mistake and that she lacked the intent to shoplift the items from the store. Accordingly, the State
argues that evidence of the prior shoplifting incident at Shopko was not being offered to show
Earith’s propensity to shoplift, but was independently relevant to rebut her defense that she
mistakenly failed to pay for her items and lacked intent to improperly remove them from the store.
         In considering the “independent relevance” of other circumstances in relation to a defense
of mistake or lack of intent, the Nebraska Supreme Court has held:
         “‘“Where an act is equivocal in its nature, and may be criminal or honest according to the
         intent with which it is done, then other acts of the defendant, and his conduct on other
         occasions, may be shown in order to disclose the mastering purpose of the alleged criminal
         act.”’”

State v. Morosin, 200 Neb. 62, 68, 262 N.W.2d 194, 197 (1978).
        The Nebraska Supreme Court then applied this rationale in State v. Kofoed, 283 Neb. 767,
817 N.W.2d 225 (2012). In Kofoed, the defendant was accused of tampering with DNA evidence
in a murder case. His defense was that his actions were the product of mistake and lack of intent.
In order to rebut this defense, the State offered evidence of evidence tampering in a different
murder case to show the current act was not a mistake or product of inadvertence but demonstrated
the defendant’s intent to commit the act.
        We find the principles articulated by the Nebraska Supreme Court in State v. Morosin and
State v. Kofoed equally applicable here. In doing so, we recognize that the act of self-checkout is
equivocal in nature and the removal of products from the store without paying may be criminal or
honest according to the intent of the actor. Under such circumstances, the intent of the actor who
is actively defending on the basis of mistake may be shown through acts of the defendant and
conduct on occasions to show the mastering purpose of the criminal act. In such occasions, the
evidence is not being offered to show propensity, but is independently relevant to establish a lack
of mistake. Although the former act here did not involve activities at a self-checkout counter, it
demonstrated Earith’s intent to shoplift which runs directly contrary to Earith’s testimony that she



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would not intentionally shoplift and would immediately remedy the situation if she ever discovered
she had made a mistake. Under these circumstances, the court did not abuse its discretion in
allowing the State to offer evidence of the 2015 shoplifting incident in order to rebut Earith’s
defense of mistake and lack of intent.
                                    SUFFICIENCY OF EVIDENCE
        In her next assignment of error, Earith argues that the district court erred in affirming the
county court’s determination that the evidence was sufficient to support her conviction of second
offense theft by shoplifting.
        In reviewing a sufficiency of the evidence claim, we do not pass on the credibility of
witnesses--that is for the trier of fact. State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016). The
relevant question for an appellate court 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. Draper, supra.
        Earith was convicted of second offense theft by shoplifting in an amount up to $500. See
Neb. Rev. Stat. § 28-511.01 (Reissue 2016), which provides in relevant part:
                 (1) A person commits the crime of theft by shoplifting when he or she, with the
        intent of appropriating goods or merchandise to his or her own use without paying for the
        goods or merchandise or to deprive the owner of possession of such goods or merchandise
        or its retail value, in whole or in part, does any of the following:
                 (a) Conceals or takes possession of the goods or merchandise of any store or retail
        establishment;
                 (b) Alters the price tag or other price marking on goods or merchandise of any store
        or retail establishment;
                 (c) Transfers the goods or merchandise of any store or retail establishment from
        one container to another;
                 (d) Interchanges the label or price tag from one item of a good or of merchandise
        with a label or price tag for another item of a good or of merchandise.

        We determine there was sufficient evidence to support Earith’s conviction. The evidence
demonstrates that Earith took women’s clothing, food, a bottle dispenser, a lint roller, other
unidentified items, and a Coleman stove at the self-checkout counter at Walmart where she was
obligated to pay for those products. The evidence further demonstrated that, instead of properly
scanning all of the items, Earith completely failed to scan two items and scanned six items utilizing
price tags for lower-priced items. The price tags actually used by Earith were obtained from
products in an area of Walmart that Earith visited and the items utilized to switch prices showed
evidence of tampering. At one point, Earith scanned the same price tag twice even though she was
holding two different items, a tank top and shorts. Svitak testified that none of the twelve items
scanned by Earith were ice cream scoops or a pan scraper despite those items appearing regularly
on Earith’s electronic receipt. Earith completely failed to scan the Coleman stove which was the
most expensive item which she brought to the self-checkout counter.




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         At the end of Earith’s transaction, the total amount shown on her receipt, and the amount
Earith paid, was $20.84, which was less than one-half the total value of the merchandise which
she removed from Walmart and nearly the price of the Coleman stove standing alone. While Earith
claims she never noticed items were not ringing up correctly because she never looked at the
register, the evidence contradicts this claim and shows she knew how much the transaction totaled
because she paid in cash with a $20 bill and a $1 bill, which she would have known only by looking
at the register. Taken together, there was sufficient evidence to support Earith’s conviction beyond
a reasonable doubt and the district court did not err in affirming the county court order of
conviction and sentence.
                                          CONCLUSION
        In sum, upon our review of the record we reject Earith’s claims that the district court erred
in finding that the county court properly admitted evidence of a previous theft committed by Earith
and in finding that the evidence was sufficient to support Earith’s second offense shoplifting
conviction. Thus, the district court’s order is affirmed.
                                                                                          AFFIRMED.




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