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  Sufficiency Of Evidence Key To Upholding Theft Conviction; And Overturning Traffic Citation In Cases Before Appellate Court  
  November 5, 2020 Edition  
     BY JOHN A. DARNELL JR.
      associate editor
      In recent decisions, the Seventh District Court of Appeals affirmed a theft conviction on an Aug., 2018 shoplifting incident at the Southern Park Mall; and reversed a trial court decision, tossing out a conviction for failure to stop on the order of a police officer, stemming from a May, 2019 traffic stop that ended in the parking lot of Wal-Mart, 1300 Doral Dr.
      On Aug. 28, 2018, Derreka Clinkscale was arrested on a charge of theft at the now vacant Dillards in the Southern Park Mall.
      On Feb. 28, 2019, a trial court found Clinkscale guilty and suspended 150 days of a 180 days jail sentence, and ordered her to 12 months of community control, largely based upon the testimony of a Dillard’s employee, Gina Chepak.
      According to the Seventh District opinion, Clinkscale testified on her own behalf at the trail court and “admitted to being a thief,” stating “She has plenty and can’t even county the number” of previous theft charges to which she pled.
      She admitted Dillards associates tried to stop her on her way out of the store, when she advised the associates, “I don’t have to stop for nobody.”
      Counsel for Clinkscale, Atty. Jan Mostov, argued the trial court erred “because the evidence at trial was insufficient to support conviction.”
      The appellate court decision, written by Judge David D’Apolito, said “When a court reviews a record for sufficiency...after viewing the evidence in the most favor able light to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
      “In this case, the state (prosecution) presented sufficient evidence that [Clinkscale]...knowingly obtained Dillard’s property without its consent, and also by deception...the elements of the theft were proven.”
      Seventh District Judges Gene Donofrio and Cheryl L. Waite agreed with D’Apolito.
      Representing the prosecution was Atty. Ralph Rivera, assistant county prosecutor.
      The same standard of “sufficiency of evidence” was applied in overturning a conviction on a charge of failure to comply with the order of a police officer, when a car driven by James Bares was stopped by Ptl. Dan Baker on May 21, 2019 about 11:45 p.m. in the parking lot of Wal-Mart.
      Officer Baker told the court that he observed a Trans Am traveling at a high rate of speed make a right hand turn from Mathews Rd. onto South Ave., then twice changing lanes, and cutting off a vehicle that had to hit its breaks to avoid a possible collision.
      Abruptly the Trans Am turned into Wal-Mart, eventually coming to a stop in the parking lot of the store.
      However, Officer Baker also noted at no time did Bares speed up, once the officer activated his lights and siren.
      On the failure to comply conviction, Bares was given a suspended 90-day jail sentence, placed on 12 months community control, ordered to attend a remedial driving course, fined $250 and his driver’s license was suspended for 180 days.
      Bares, and his counsel, Atty. John McNally, filed notice of apple on the conviction on July 15, 2019.
      “Officer Baker testified the Trans Am did not speed up after he activated his lights and siren. Additionally the Trans Am did not run any red lights. Further, Officer Baker noted that Bares was cooperative,” an opinion written by Judge Gene Donofrio said.
      The Judge added “When viewing the evidence in light most favorable to the prosecution, it cannot be said that [Bares] willfully eluded or fled from Officer Baker.” Judges Carol Ann Robb and Cheryl L. Waite concurred.
 
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