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Allen v. State

The defendant was not entitled to his requested jury instruction on mere presence, since the evidence showed that the defendant was the sole participant in shoplifting several items of clothing from a department store.

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A jury found Xavier Allen guilty on one count of theft by shoplifting for taking items of clothing from a department store.1 Following the denial of his amended motion for new trial, Allen appeals, asserting that the evidence was insufficient, that the trial court erred in failing to give his requested instruction on mere presence, and erred in failing to exercise its discretion in sentencing him. Having reviewed these claims, we discern no error and affirm.

Construed to support the verdict, the evidence reveals that a loss prevention officer with the department store, through her camera monitoring station, observed a man walking around the men’s clothing department “gathering clothes and kind of rolling them together and stacking them together” and then putting them inside a large store bag. She explained that the man “went to the floor with several items which is indicative usually of what shoplifters do. They go back to the row and they go to the floor and they put several items in a bag or in a purse or in their own clothing.” The loss prevention officer called a deputy with mall security when she observed the man walking toward the store exit without paying for the items.

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