Jury to Decide if Stolen Soda Was Robbery or Theft

By Misha Berman

Defendant Kenneth Dale Gates is on trial for petty theft and for threatening “Ms. W,” an employee of Dollar General in Woodland, with a BB gun on March 17, 2015.

Mr. Gates was called to the witness stand. Deputy District Attorney Alvina Tzang first asked Mr. Gates if he told the officer that he was not under the influence on March 17 when he was arrested and released.

“I told the officer that I walked across town and that I was not high,” said Mr. Gates.

Ms. Tzang then showed Mr. Gates a BB gun and asked him if he recognized it. Mr. Gates responded that he did but that it was not the gun he stole.

“Did you testify to the police officer that you threw out the gun in the dumpster?” asked Tzang.

“I did throw out the gun on March 17. I was hoping when I was in jail, that I could go back to the dumpster to prove it’s a BB gun due to it being a less serious offense than an actual gun,” responded Gates.

Defense Attorney John Robert Spangler stood up and asked Gates, if the police directly communicated that he needed to get rid of his BB gun, whether he would have gotten rid of it. Mr. Gates responded that he would have. Mr. Spangler then asked Gates how, when he was homeless, he would keep his stuff safe.

“I would leave my stuff outside and hide it somewhere,” answered Gates.

“Did you feel safe on the street?” asked Spangler.

“I have been stabbed and jumped,” replied Gates.

Gates then talked about how he told the police officer that at 10am on March 17 he stole a BB gun, and about Ms. W at Dollar General asking what was in his pocket and gesturing at his left pocket, where the gun was.

DDA Tzang then stood up and asked Gates if it is true that Ms. W gave him three options in regard to his “shoplifting.”

“Yes, Ms. W gave me three options, which were I could pay for it, return it or have her call the cops. I told her I had no money and that I would pay her back tomorrow and Ms. W said that was fine,” replied Mr. Gates.

Ms. Tzang then asked Gates if he uses the BB gun for protecting himself because, if people see the gun it will scare people into thinking it’s a real gun and not bother him.

“Only some people, but only people who are attacking me, not citizens,” said Gates.

Tzang then called Ms. W to the witness stand. She asked Ms. W if there is a “written policy for shoplifting.” Ms. W said that there is not, and it is just “discouraged.” Ms. W then talked about how the store would rather have workers stay in the store when dealing with shoplifters, for safety reasons. However, she said she went outside for Mr. Gates because she recognized him.

“I knew his name and he has gone in the store before so I felt safe to approach him,” said Ms. W.

Tzang then showed Ms. W “People’s 16,” the BB gun, the same one that was shown to Mr. Gates when he was on the witness stand. She asked Ms. W if she recognized the gun. Ms. W said she did not. Judge Reed then stepped in and pointed out that “it’s an unloaded pellet gun.”

Ms. Tzang then asked if this looks the same as the BB gun that Mr. Gates had, and the witness said that the BB gun Gates had was black and silver. Ms. W also pointed out that the handle was thicker.

“I did not know which pocket it was in. I called him by his name and told him he stole something and to come back and pay for it. He never said that he will come back tomorrow. The only thing he asked was if the BB gun looked real,” said Ms. W.

Judge Reed then said that “this concludes the elements.” He then went to the middle of the courtroom and explained to the jurors what they need to do for the “final deliberation.”

Before the jurors retired to deliberate, both Ms. Tzang and Mr. Spangler made their final statements.

Ms. Tzang was first and used a PowerPoint as a visual aid.

“Why should we care, it’s just a bottle of soda? We should care because Ms. W was doing her job and was threatened and had to deal with lots of shoplifters daily. We are trying to protect citizens like Ms. W who are being threatened by a suspect who [is] trying to steal,” noted Ms. Tzang.

DDA Tzang then talked about how the “surveillance camera” shows that it was only a minute between the time Ms. W walked out of the store to confront Mr. Gates and back in. Tzang pointed out that one minute is enough time for Ms. W to confront Mr. Gates and say to return the items, not enough time for a long conversation.

Tzang then defined the terms “willful” and “intent.”

“The defendant willfully took an item from the Dollar General,” said Tzang.

Ms. Tzang then discussed the interaction between Ms. W and Mr. Gates, where Ms. W “wanted to see the razor” and where Mr. Gates said that “he would pay her tomorrow.” Ms. Tzang thinks that this interaction never happened. Ms. Tzang also wanted to know why, if Mr. Gates didn’t think he was committing any crime, he would throw out his BB gun.

“Not about a property crime, it’s about a person,” said DDA Tzang.

Mr. Spangler made his closing statement. He pointed out that Ms. W and the other witness are not reliable witnesses. The other witness, “Ms. M,” said something that was different when she was under oath.

“Neither one of them are reliable. I am not saying the defendant didn’t steal. He testified that he did. That is not the real issue. I disagree with Ms. Tzang that it’s a person crime. He was not running, he was walking. Not a robbery, but a theft. Mr. Gates is not guilty of a robbery, but theft,” asserted Mr. Spangler.

Ms. Tzang then concluded by saying this was a robbery and not a theft, because a robbery is when a person is threatened, while mere theft doesn’t have to involve a person being threatened.

Judge Reed then explained to the jurors what to do in the deliberation room for their final verdict. The bailiff then escorted jurors into the deliberation room.

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