Cubitt v. State

Citation: 261 So. 3d 496Docket: CR–14–1500

Court: Court of Criminal Appeals of Alabama; December 15, 2016; Alabama; State Appellate Court

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Jarvon Dominque Cubitt appeals his conviction for first-degree theft, resulting in a two-year prison sentence, which was suspended in favor of three years of supervised probation. Cubitt, a sales associate at Best Buy, exploited the company's Reward Zone Program by collecting customers' receipts and fraudulently accumulating Reward Zone points in his account. He amassed 262,500 points, which he redeemed for discount certificates worth $5,250, enabling him to purchase items at significantly reduced prices, including a refrigerator for only two dollars. Following an interview with a Best Buy employee who discovered his scheme, law enforcement was notified, leading to his indictment. The Grand Jury charged him with unauthorized control over property valued over $2,500, in violation of Alabama law. Before trial, Cubitt moved to dismiss the charges, arguing that the Reward Zone points were abandoned by customers and did not belong to Best Buy. The State contended that the points constituted currency with value and that Cubitt had exerted unauthorized control over them. At trial, he also claimed the indictment was defective and that there was a variance between the indictment and the evidence presented by the State.

Cubitt was indicted for unlawfully taking lawful United States currency from Best Buy but argued that he actually took Reward Zone points from customers. The State contended that there was no material variance, asserting that the discount certificates acquired with the Reward Zone points qualified as currency or its equivalent, and that Cubitt unlawfully obtained these certificates. The circuit court permitted post-trial briefs, where Cubitt reiterated his claim of a material variance. The State countered that both the Reward Zone points and the certificates were property with monetary value, thus constituting the theft. 

The court acknowledged a variance between the indictment and the evidence, noting that Cubitt took Reward Zone points and used them for discounts rather than controlling actual currency. However, the court concluded this variance was not material or fatal, as his actions fell within the offense described in the indictment. Cubitt was found guilty of first-degree theft. On appeal, he maintained that the indictment and the proof at trial did not align, citing that the indictment specified unlawful control over currency while the evidence showed he took Reward Zone points. 

Legal precedent indicates a fatal variance occurs only when the State fails to prove a material allegation in the indictment or presents proof contrary to it. Alabama law stipulates that a material variance must be shown to overturn a conviction. The purpose of the variance rule is to ensure the accused has adequate notice to defend against the specific crime charged. Not all variances are fatal, and analyzing a variance involves determining whether a variance exists and if it was prejudicial to the accused's rights. The inquiry focuses not solely on the existence of a variance but on whether it affected the accused's substantial rights.

Variance from an indictment does not automatically imply prejudice, as established in case law. The impact of any such variance on the defense is determined by the specific facts of each case. In a larceny trial, if evidence about the stolen property aligns closely with the indictment’s description, the jury decides the identity of the stolen item without resulting in a fatal variance. Alabama law defines theft of property, including unauthorized control over another's property with intent to deprive the owner.

In the case at hand, Cubitt was charged with theft of lawful United States currency from Best Buy, but the State's evidence revealed that he deceived the store to obtain merchandise at discounted prices using falsified Reward Zone points and discount certificates. Despite suggesting before trial that Cubitt gained unauthorized control over Reward Zone points, the State's trial evidence indicated he created those points. The State later argued that Cubitt had gained control over discount certificates, leading to a significant variance between the indictment and the evidence presented.

Ultimately, this variance was deemed material and prejudicial, as it deprived Cubitt of adequate notice regarding the property he was accused of stealing. The court concluded that the indictment did not align with the facts proven at trial, leading to the reversal of Cubitt's conviction and remanding the case for further proceedings.