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Ewing v. State

Court of Criminal Appeals of Tennessee, Jackson

March 24, 2015

JACKIE EWING
v.
STATE OF TENNESSEE

Assigned on Briefs February 3, 2015

Appeal from the Circuit Court for Madison County No. C-13-208 Donald H. Allen, Judge

J. Colin Morris, Jackson, Tennessee, for the Defendant-Appellant, Jackie Ewing.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General, for the Appellee, State of Tennessee.

Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

OPINION

ALAN E. GLENN, JUDGE.

FACTS

On direct appeal, this court set out the facts resulting in the petitioner's conviction:

This case arises from a theft of merchandise in a Sears store in Jackson, Tennessee. A Madison County grand jury indicted the [petitioner] for theft of property valued over $1, 000.00. At the trial on these charges, the parties presented the following evidence: David Presson, a Sears Loss Prevention Manager, testified that he worked at the Sears store located in the Old Hickory Mall in Jackson, Tennessee.
Presson testified that, at around 9:30 p.m. on December 21, 2010, while he was on his way home, store management notified him that a "push-out theft" was in progress. Presson explained that a "push-out theft" is a theft where an individual places merchandise in a shopping cart and pushes the cart out of the store without paying for the items. Presson said that the two suspects were not confronted that night, but, after returning to the store that night, Presson took statements from various employees. The following day, December 22, 2010, Presson viewed surveillance video recordings. Sears maintained fifty-two surveillance video cameras throughout the store, which captured views from various angles and in various areas of the store. Presson was able to confirm that a "push-out theft" had occurred and contacted the Jackson Police Department. Presson isolated the relevant video segments which captured the two suspects entering the store, their progress throughout the store, and their exit from the store. Presson made copies of this video footage and provided it to police.
Presson testified that, by working with a store employee well-versed in the store stock and comparing the items placed in the shopping cart on the video footage with the remaining items in that area of the store, he was able to compile a list of the stolen items and the value of those items. Presson said that a store employee identified the female suspect, but he also said that he was not personally familiar with either suspect.
Charles Chatman, a Sears employee, testified that he worked in the tools department of the Sears store. On the night of December 21, 2010, Chatman said he observed a man and a woman in the tools department. He recognized the woman from Jackson State Community College where he attended school. He said that she was a tutor for a math lab class. He then identified the [petitioner] in court as the man he saw on the night of December 21, 2010. Chatman watched the couple push their cart full of items to the adjacent fitness department. When he did not see the couple return to the register to pay for the items, he went to the fitness department and yelled out, "Did they pay for that?" The couple, however, had left at the "perfect time" because the other sales associate who was in the fitness department had his back to the exit. Chatman reported the incident to his manager.
Tiffany Baker, a Sears loss prevention associate, testified that, before working in loss prevention at Sears, she worked in merchandising and customer assistance. Baker said that, on December 22, 2010, she watched surveillance video footage from the previous night and compared items on the floor of the store with what she watched the shoplifters place in the shopping cart on the video recording. She then compiled a list of thirty-two items, all from the children's, men's, and tool departments, and the value of each item. The total amount of the items stolen was $2, 416.19.
Baker testified that the department store did not recover any of the stolen items. Baker then named each item and the individual value of that item for the jury. The State played the video surveillance footage of the [petitioner's] progression through the department store on the night of December 21, 2010. The video showed the [petitioner] selecting various items from a rack or shelf while the co-defendant stayed with the shopping ...

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