CLEARFIELD – A jury deliberated for approximately 30 minutes before convicting a Clearfield woman of retail theft – taking merchandise – Wednesday afternoon.
Aszure Fulmer, 32 of Clearfield, was found not guilty of a second retail theft charge for altering a price label marking. She was also cleared of all three counts of disorderly conduct
Fulmer’s charges stem from a reported retail theft incident Nov. 21, 2008 at the Wal-Mart Supercenter, Clearfield.
Trudy McCool, asset protection coordinator, said she was walking toward the front of the store at approximately 1:40 p.m. on the date in question. She said she noticed Fulmer and found her demeanor “suspicious.”
McCool said the defendant was placing merchandise under her purse. She said customers normally place items in or on top of the shopping carts.
She said she observed Fulmer browsing clearance items in the clothing section. She said Fulmer peeled an extra clearance sticker and placed it on another item. She indicated the item was labeled at a higher price.
McCool said she contacted Stephanie Hudson, assistant manager, to help monitor Fulmer’s whereabouts in the store’s various departments. She said she continued to follow the defendant through the store for another 45 minutes.
She said Fulmer selected a daywear set of pajamas in the lingerie department. She said she witnessed Fulmer remove the hanger and fold them nicely before placing them in her purse.
Under cross-examination, defense attorney Michael Marshall questioned McCool about her ability to clearly see Fulmer’s actions. She said she was probably 20 feet – give or take – from Fulmer, when she was at the clearance racks.
She noted she was off to the side of the defendant, when she had the shorts in-hand at those racks. She said she later peered through holes in a wall fixture in order to observe the defendant in the store’s lingerie department.
“We try to keep a distance and don’t want them to see us observing them,” she said.
Marshall then asked her about the organization of the store’s clearance racks. McCool testified they have $3 and $1 clearance racks.
“But they get mixed up all the time, right? So, $1 items can be on a $3 rack,” he asked.
McCool said, “Yes.”
At around 2:15 – 2:30 p.m., Hudson said she was contacted by McCool, who needed assistance maintaining eye contact with Fulmer. She said the two communicated via radio about the defendant’s whereabouts in the clothing section.
Hudson said she had ducked under a double rack of the “big, puffy” winter coats. In that position, she said she was actually on the floor with an upward vantage point.
“I wanted a clear view,” she said, noting she “was not even 10 feet away” from the defendant.
She said she saw Fulmer select two blouses, which were in black and blue shades. She said Fulmer initially hung them from the side of her cart. But later Fulmer removed them from their hangers and placed them in a large, oversized purse.
Hudson said she did not see the defendant swap price labels but noticed she was fidgeting under her purse.
“I assume that’s what she was doing,” she said.
McCool said she watched Fulmer for an approximate total of one-and-a-half hours. She said the defendant eventually checked out at the first register, which is located near Subway on the grocery side of the store.
McCool said she stepped up beside Fulmer at the register. She said the shorts rung up at $3. She said Fulmer asked for the price to be reduced to $1. She said the cashier then voided the $3 and charged the defendant $1.
“(Fulmer) pointed out that it had rung up wrong. But it didn’t technically,” she said. She noted Hudson was standing by the cashier and discussing a different matter. She said both were present at the register for the defendant’s transaction.
Like McCool, Hudson indicated Fulmer checked out at the first register. She said she was standing by the same and noticed the appeared tag switch.
Hudson said Fulmer had pointed to the shorts’ price, when it rung up at $3. Once the transaction was completed, she said she entered an action code to re-print the receipt. She said McCool had followed the defendant from the register.
McCool said she and Hudson identified themselves and asked Fulmer to stop in the vestibule doors. She said the defendant had completed the final point of sale and last opportunity to pay for the items. She said they asked to see her merchandise while outside of the store’s grocery end. She said Fulmer said she did not have any.
Hudson said she had a re-print of the defendant’s original receipt in-hand, when they approached her with the assistance of Joseph McGovern, asset protection associate. She said Fulmer demanded she did not have any merchandise.
“She was very loud and demanding,” Hudson said. She said they encouraged her to go back inside the store with them. She said Fulmer argued with them the whole way through the store.
Hudson continued, “You could tell she was worked up. She had a confrontational-like tone.”
McCool said they again requested to see the items once in the manager’s office. Fulmer again refused and failed to present the items. She said they contacted the Lawrence Township Police Department, while the defendant was unable to provide identification.
Under cross-examination, Marshall said it did not make sense for Fulmer to deny possession of merchandise. He pointed out she had checked out and had a shopping bag.
McCool explained they were questioning the defendant about items that she had not purchased and instead placed in her purse.
“Because people will check out and not pay for everything,” she said.
McCool said the stolen merchandise was not retrieved from Fulmer until arresting officer James B. Glass arrived at the store. She said four items were removed from the defendant’s purse. She said she never saw a receipt for those items – two blouses and a daywear set.
McCool said Fulmer indicated the shorts rung up incorrectly. She said the defendant begged to pay the $2 difference for the shorts and was allowed to do so.
Under cross-examination, Marshall questioned Hudson about the photographs taken of the stolen merchandise – two blouses and a daywear set. He asked why they had not taken photographs of the shorts and altered price tag.
Hudson said they had time to do so but wasn’t sure it was necessary. She pointed out that Fulmer eventually paid the full price before leaving the store.
“But you’re saying that she switched the tag,” he said.
Hudson explained the photographs were taken after the defendant left the store. She said the receipt was also their reference and the tag wasn’t needed.
In his testimony, Glass said he was contacted and responded to the scene around 3 p.m. He said he was notified of an unruly female who was involved in a retail theft. When he arrived at the store, he said they were not outside.
He said he headed to the manager’s area in the rear of the store. He indicated he addressed the defendant by name. He said he retrieved blue and black blouses as well as a daywear set from Fulmer’s purse.
He said they were in a large, oversized bag with long handles.
Glass said Fulmer did not want to give a statement to police at that time. He said the defendant indicated she had a receipt for the items. He said she was instructed to bring it to him for investigation purposes. He said he never received the alleged receipt.
Under cross-examination, Marshall asked Glass if he ever really thought that Fulmer had a receipt.
“I never believed she had one. I still don’t,” he said with a big chuckle.
Marshall asked the officer if he recalled any discussion about Fulmer going to the vehicle for the receipt. Glass said he did not. But he believed Fulmer had said she purchased the merchandise earlier and wanted to make a return.
Glass also verified Fulmer was given a trespass notice and not permitted on any Wal-Mart, Sam’s Club or Distribution Center property.
Fulmer took the stand in her own defense.
In her testimony, the defendant said she had gone to Wal-Mart around 1:45 – 2 p.m. on the date in question. But she said she was unsure of the exact time. She said she went to the store with her father who remained in the vehicle.
She said she went inside to purchase clothing. She indicated she purchased a daywear set and two blouses in both black and blue shades. She was presented with a receipt for those items by Marshall.
She confirmed she had paid $45.64 in cash for the items and received $4.36 change for the same. She also confirmed the date on the receipt was Nov. 21, 2008.
Fulmer said she then returned to her father’s vehicle and showed him the clothing items. At this time, she said she noticed the purchased items were the wrong size. She then returned to the store.
Fulmer said she removed the two blouses and the daywear set and placed them in her own purse. She said she left the shopping bag in the vehicle. She said she did not realize until later that the receipt had been left behind.
When she re-entered the store, she testified she did not have her clothing items in the shopping bag with the receipt.
“They ticket everything. I wasn’t sure if I’d even exchange them,” Fulmer said. She said she did not find any items to exchange and browsed the clearance racks.
She said she had a pair of ladies shorts that she found on a $1 clearance rack. She said she peeled the sticker to see the original price.
When she made her second purchase, including the shorts, she said they rung up at $3. She said she notified the cashier that she had found them on the $1 rack.
Fulmer testified she could not recall the price on the clearance ticket and was uncertain if it was $3 or $1. She said she only brought it to the cashier’s attention because it was on the $1 rack.
Fulmer believed she was first approached by McCool and Hudson because they thought she had switched the price ticket. She said they had not mentioned any other items.
She said she did not present the clothing items from her purse. She indicated she had previously paid for them. The defendant said she did not realize the receipt was still in the vehicle until Glass arrived at the store.
Fulmer said she returned to her father’s vehicle and told him about the incident. She said he had the receipt for the two blouses and daywear set.
Following the lunch break, Fulmer was questioned if any attempt was made to present the receipt to Glass. She said she had not taken it to him, as his instructions were to bring it to the hearing. She said she showed it to her attorney who made a photocopy and gave it back.
Fulmer then admitted she has had previous theft charges.
“I pleaded guilty to all, because I was guilty,” she said.
Marshall asked, “Why not this time?”
“Because I’m not guilty,” Fulmer replied.
Under cross-examination, Assistant District Attorney Warren Mikesell II questioned her about the purchase of the two blouses and daywear set.
Fulmer said she “probably” first entered the store around 1:30 – 2 p.m. She said she purchased three items and was maybe in the store for 30 minutes or so.
She said she was unable to recall which register that she checked out at. But she believed it was toward the grocery end. She said the cashier removed the clothing from the hangers and completed her transaction.
According to the defendant, she then returned to the parking lot and showed her father the items. She said she wanted to return the blue and black blouses and re-entered the store 5 – 10 minutes later.
“But you didn’t want to exchange the daywear set,” Mikesell asked.
Fulmer said, “Not really.” She also said she was aware of the store’s exchange policy. She testified she knew her actions were disregarding store policy.
She said she wanted to check for smaller sizes for items, as she was considering an exchange. She said she ultimately decided not to do so and browsed the clearance racks.
She said she thought the shorts were priced at $1. She said they were found on a clearance rack for items marked at the same price. She said she did not recall the price on the ticket but had played with the sticker.
For her second transaction, Fulmer said she checked out at the first register. She said she purchased four items during the transaction. She admitted the shorts rung up at $3, and she called it to the cashier’s attention.
When stopped at the doors, Fulmer said she didn’t indicate she had clothing items in her purse. She said she never returned to her father’s vehicle to retrieve the receipt. She testified she never took it to Glass.
Mikesell then asked Fulmer about the date and time of purchase listed on the defense’s receipt for the two blouses and daywear set. She said it looked like it read Nov. 21, 2008 and 15:35 p.m. (3:35 p.m.).
Mikesell disagreed, indicating he believed the time was 16:35 p.m. (4:35 p.m.). He asked if she or someone re-purchased the items, or if she’d made an attempt to alter the time.
Fulmer said she did not.
Fulmer’s father, Harold Luzier said he had gone to Wal-Mart with his daughter on the day in question. He, however, could not indicate a specific time and only that it was sometime during the afternoon.
Luzier said his daughter went inside to pick up some items but didn’t tell him anything specific. He said she returned with items, looked at them and realized the wrong sizes.
At that time, he said she returned to the store. He said she took the items from the bag and placed them in her own. He said the receipt fell out of the shopping bag, and he figured she would be back for it.
Luzier said the defendant was in the store a long time and guessed around 45 minutes. He said she came back and cried over the incident. He told her he had the receipt.
Luzier said he suggested she take it to the police department. He said she feared they would take it, and she wouldn’t have any evidence. He said he then suggested she take it to Police Chief Jeff Fink.
“She never did that I know of,” he said. He said he couldn’t prove her receipt for those items was in fact for them. He said “they all look about the same.”
During rebuttal, Mikesell called Terssa Trunzo, front end assistant manager for Wal-Mart Supercenter, Clearfield, to the stand. She said she had received a phone call from Hudson about an hour prior.
She said Hudson requested that she check a transaction and print out the exact copy. She said it was for the receipt that Marshall had previously presented for Fulmer’s purchase of the two blouses and daywear set.
Judge Paul E. Cherry then had the jurors vacate the courtroom.
Marshall told the judge that he objected to the copy of Fulmer’s transaction. He said they knew about the receipt but didn’t have an interest in it until now.
“They wait until now to bring in a copy. It’s not proper rebuttal. It’s beyond unethical,” he said.
Mikesell said he knew about the receipt but wasn’t shown it. He said they did not have the ability to research it.
“We had no idea what she was claiming,” he said. He said the time on the defense’s copy was smeared out and could not be read legibly.
Until today, he said they did not have a transaction number to retrieve the exact copy of the receipt from Wal-Mart.
Cherry said he would note the objection for the record but overruled the same.
Once testimony proceeded, Trunzo told the court they have abilities to find specific transactions. But she noted they need specific details in order to narrow the search. She said if they have a date and transaction number that it can be very easy.
Trunzo indicated the receipt was for the same items – two blouses and a daywear set – and for the same price total. She said the transaction was made Nov. 21, 2008 at 16:35:25 (4:35:25 p.m.).
Fulmer was then called back to the stand by Marshall. She testified she had received a trespass notice. She said she did not return to the store later in the day.
In closing, Marshall reminded the jurors that Fulmer’s previous charges were only admissible for limited purposes.
“They cannot be used to say, ‘she did it before, she did it again.’ It cannot be used in that fashion,” he said.
“If (the system permitted you to do so), anyone who has done something wrong would never get a fair trial again. It’s not how our system works.”
He said her prior charges could only be used to determine her credibility in relation to her testimony.
Marshall also addressed that Mikesell had noted the date was smeared out on the defense’s copy of the receipt for the two blouses and daywear set. He said they should keep in mind that the receipt is 10 months old.
He said he found it “awfully convenient and strange” that they never thought to print a copy of the transaction until now. He said anything could have happened to the data since then.
Marshall also called the jurors attention to the testimony given by Trunzo. He said she wasn’t able to really tell them anything about the time.
“Is the time (on the copy) for when the receipt prints out, or when it enters the computer,” he asked.
“Who knows what it means? They didn’t prove that. Keep in mind, they have burden of proof. You have to decide what happened.”
Marshall said the receipt played a critical role. He said if she had a receipt, they were missing an element of retail theft. He said if she paid, it was not shoplifting.
He reminded the jury that a picture was neither taken of the shorts nor their tag. He said they did not have any proof a $1 ticket was on top of a $3 ticket. He said they only presented McCool’s observations.
“Don’t you think that they’d want some proof,” he asked. “Why wouldn’t you keep it, or at least take a picture?”
Marshall said it wouldn’t make sense for Fulmer to place items in her bag if she intended to pay for others. He continued, asking the jury why the defendant would bother to switch a $3 to $1 ticket.
Marshall said he didn’t believe the time spent in the store made sense. He said he wasn’t denying she was in the store for a long time. But he said if Fulmer had the intent to shoplift, she would not have remained inside for one-and-a-half hours.
Marshall noted Fulmer also had enough money to pay for the shorts at full price. He said she received $4 in change at the end of the transaction.
While other testimony did not add up, he said Hudson’s jived with the story. He said she observed Fulmer placing the two blouses in her purse.
He said Fulmer had been comparing sizes between the blouses she had previously purchased and those in the store. He said she had to place them back in her purse.
Marshall said the receipt for her transaction, which included the shorts, also listed a T-shirt and candy.
“Why stuff three in a bag and pay another $5 for a shirt? Why play with a tag for a $2 (reduction), when you have the money,” he asked.
He said Fulmer also used a food stamp card to purchase the candy. He said it did not make sense if her intent was to shoplift.
“Why use the card and leave a trail,” he posed to the jury.
Mikesell told the jury they had to determine the true facts.
He reminded them that McCool watched Fulmer tuck items under her purse. He said she followed the defendant and watched her peel a tag.
He then called their attention to testimony that was given by Hudson. He said she ducked in a coat rack and observed Fulmer place two shirts in her purse.
Mikesell pointed out that Fulmer never mentioned the receipt for the two blouses and daywear set. He said she also wouldn’t identify herself, and that McCool and Hudson had to contact police.
“She took the merchandise and left. When caught, she comes up with this story,” Mikesell said.
He told the jury if they folded over the defense’s receipt for the two blouses and daywear set, it would read 16:35 p.m. (4:35 p.m.). He said the same time could be found on the exact copy of the transaction that was printed Wednesday by Wal-Mart.
“These three (items) were purchased after Glass let her go, not at 1:30 p.m.,” he said.
Mikesell said McCool observed the defendant switching tags from $3 to $1 for a pair of shorts. He said it didn’t matter if it is $1 or $1,000.
He told the jury the value shouldn’t impact their verdict, instructing them to consider her intent at the time of the crime. He said she peeled and switched the tag, then went to the register and paid $1 for the shorts.
“She had it reduced $2. Don’t let that $2 sway you,” Mikesell said.