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State v. Brummett

September 1, 2010


Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Thomas F. Neville, District Judge.

The opinion of the court was delivered by: Melanson, Judge

2010 Opinion No. 61

Judgment of conviction for burglary and petit theft, affirmed.

David W. Brummett appeals from his judgment of conviction for burglary and petit theft. For the reasons set forth below, we affirm.


In 2007, loss prevention officers at various Shopko retail stores in the Treasure Valley became aware of an individual who had stolen electronic merchandise by using a knife to cut the products from their packaging. The individual, later identified as Brummett, would then wander to other parts of the store to dispose of the packaging while hiding the merchandise in his clothing. The stores first became aware of Brummett after empty packaging was discovered at two Shopko stores in Boise and Meridian. After reviewing surveillance tapes from the two stores on March 11, loss prevention officers observed that the thefts were both perpetrated by Brummett. Warning was given to all the local Shopko stores along with Brummett's description.

Despite the warning, additional electronics were stolen from a Shopko located in Nampa. After reviewing the surveillance tapes from June 5, loss prevention officers observed that this theft was also perpetrated by Brummett while wearing the same clothing as during the previous thefts.

On June 17, employees at the Shopko store in Nampa observed Brummett wandering in the electronics department. Store employees remained close to him until he left without further incident. However, store management called the Meridian Shopko to alert them that Brummett might attempt another theft. Soon thereafter, loss prevention officers from the Meridian Shopko observed Brummett enter the store and wander in the electronics section looking around nervously as he had done on previous occasions. Brummett cut the packaging on some electronic products and then wandered through the electronics section. He soon returned to the cut packaging and removed the products and hid them on his person along with items taken from the electronics clearance section. Brummett then left the store after walking through another section of the store. Police officers arrested Brummett as he left the store. After searching Brummett, officers discovered the stolen merchandise as well as a small pocketknife. Brummett admitted that the items belonged to Shopko and had not been purchased.

Brummett was charged with burglary, I.C. § 18-1401; petit theft, I.C. §§ 18-2403(1) and 18-2407(2); and being a persistent violator, I.C. § 19-2514. Prior to trial, the state filed a notice of intent to use I.R.E. 404(b) evidence of Brummett's prior thefts at other Shopko stores. Brummett filed a motion in limine to exclude any mention of his prior uncharged misconduct. The district court held, among other things, that the evidence was relevant and admissible to show Brummett's intent to commit the theft upon entering the store on the day in question. At trial, evidence was presented from several loss prevention officers from the Shopko stores who testified to the past thefts committed by Brummett as well as the most recent theft which led to his current charges. Brummett testified that he went to the store to look for a fuse and did not intend to steal anything until he was already inside. He claimed that he had a credit card as well as eight dollars in cash*fn1 and that he first went to the Nampa Shopko, but they did not have the product he was looking for. Brummett admitted that he had previously shoplifted at the Meridian Shopko, but denied shoplifting at the Nampa location. Brummett was found guilty by a jury of burglary and petit theft. The district court then found that Brummett was a persistent violator. The district court sentenced Brummett to a unified term of fifteen years, with a minimum period of confinement of five years, for burglary and being a persistent violator and a concurrent term of 365 days for petit theft. Brummett appeals.


A. Evidence of Prior Thefts

Brummett first argues that the district court erred by admitting evidence of his prior uncharged misconduct concerning thefts from other area Shopko stores. Idaho Rule of Evidence 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action 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, provided that the prosecution in a criminal case shall file and serve notice reasonably in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

See also State v. Needs, 99 Idaho 883, 892, 591 P.2d 130, 139 (1979); State v. Avila, 137 Idaho 410, 412, 49 P.3d 1260, 1262 (Ct. App. 2002). In determining the admissibility of evidence of prior bad acts, the Supreme Court has utilized a two-tiered analysis. The first tier involves a two-part inquiry: (1) whether there is sufficient evidence to establish the prior bad acts as fact; and (2) whether the prior bad acts are relevant to a material disputed issue concerning the crime charged, other than propensity. State v. Grist, 147 Idaho 49, 52, 205 P.3d 1185, 1188 (2009). We will treat the trial court's factual determination that a prior bad act has been established by sufficient evidence as we do all factual findings by a trial court. We defer to a trial court's factual findings if supported by substantial and competent ...

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