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State v. Shields

Court of Criminal Appeals of Tennessee, Nashville

June 8, 2017


          March 14, 2017 Session Heard at Belmont University College of Law [1]

         Appeal from the Circuit Court for Williamson County No. I-CR076581 Michael Binkley, Judge

         A Williamson County jury convicted the Defendant, Errol Shields, of theft of property valued at more than $500 but less than $1, 000, and the trial court sentenced him to two years, suspended to probation. The Defendant filed a motion for judgment of acquittal and/or a new trial and then filed a supplement to that motion. The trial court denied the motion, and the Defendant appeals. On appeal, the Defendant contends that the trial court erred when it denied his motion because the evidence is insufficient to sustain his conviction and that the trial court improperly allowed the State to introduce evidence that the Defendant returned an item to the store that he had legally purchased. After review, we affirm the trial court's judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

          Dana C. McClendon, III (at trial), Franklin, Tennessee, and Patrick Timothy McNally (on appeal), Nashville, Tennessee, for the appellant, Errol Lester Shields.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Kim R. Helper, District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.



         This case arises from an incident that occurred at a Sam's Club store on December 22, 2011, resulting in a Williamson County grand jury indicting the Defendant for theft of property valued between $500 and $1, 000. At the Defendant's trial on this charge, the parties presented the following evidence: Andy Lee testified that, at the time of this event, he was the asset protection manager for Sam's Club in Franklin, Tennessee. His position included loss prevention, both internal and external. Mr. Lee testified that the Defendant had a membership with Sam's Club on December 22, 2011, which he used to enter the store. Mr. Lee said that this membership card, which each customer must swipe before making a purchase, gave Sam's Club the ability to track the purchases made by a customer.

         Mr. Lee identified the receipt of the purchase made by the Defendant on December 22, 2011, at 5:26 p.m. The Defendant purchased a queen-sized comforter set for $54.98 and a queen-sized memory foam mattress topper for $99.96, along with a few other items. Mr. Lee opined that these two items were used to conceal other merchandise that the Defendant removed from the store on that date.

         Mr. Lee said that, on December 23, 2011, a member of his daily audit team informed him that a 24-inch television, valued at $279, was missing. Mr. Lee said that he reviewed the security camera recordings from several of the over 400 cameras located in the store. He began watching the video from the camera section of the store, starting at the time of the last audit. He noted that, in the twenty-four hour period between the two audits, the particular television that was stolen was only picked up one time and that was by the Defendant. Mr. Lee said that, after he saw the Defendant pick up the television on the video, he used video from other cameras in the store to track the Defendant's movements through the store on the day before.

         Mr. Lee said that the Defendant traveled through the store with the television. He went to the domestic aisles, through the grocery section, and then back and forth between the sections. Mr. Lee noted that the Defendant then circled around the whole store and that he eventually went to the mattress and bedding aisle. Mr. Lee watched a video of the Defendant picking up a comforter set and a large mattress, placing those items in his cart and then walk around the store once. Mr. Lee said that he saw the Defendant lean down and appear to tamper with the merchandise and then go to the tobacco register to check out. On the video, it appears that items are located in the buggy in a manner so that the cashier cannot reach the bar code of the items to scan them. The tapes from the stores showed the Defendant taking the television box from his cart, lifting it with only one hand, and placing it among the large mattress boxes. He then picked up a comforter set, using two hands, and arranged the comforter in his cart. The tapes showed the Defendant stopping again at the mattresses and comforters. The tapes showed him bend down, appearing to manipulate one of the boxes. The Defendant then placed an item in his cart.

         Mr. Lee said he then investigated and discovered that a $99 mattress topper at the store had the price code or "UPC" cut off. The box was located behind the $499 foam mattress box where the Defendant had been seen on the video. He noted that the Defendant's receipt indicated that he purchased that $99 mattress topper. He also found an empty 24-inch JVC television box in the area of the domestic aisle where the Defendant was located on the video.

         Mr. Lee said that he began investigating this case on a Friday and then did not work again until Monday. He continued investigating the case on Monday and did not contact the police until the following Friday. He provided the police with the pictures and the videos of the events surrounding the Defendant's shopping trip. Some of those pictures were shown to the jury. Mr. Lee identified the portion of the video showing the Defendant pick up the 24-inch television, valued at $279, and place it into his shopping cart. He also showed the jury video confirming the Defendant looking at the $499 foam mattress, placing the queen comforter in his shopping cart, placing food items in his shopping cart, and then kneeling down by the mattress toppers and placing the $499 foam mattress in his cart. Mr. Lee reiterated that the Defendant's receipt reflected that he purchased a $99 mattress topper.

         Mr. Lee then identified footage of the Defendant going to check out at the tobacco counter, which was mainly used for checking out tobacco purchases. He said that this area had no belts and no way to remove purchases from the shopping cart. Mr. Lee said that the video showed cashier Kristy Lewandowski checking out the Defendant. She was unable to reach the UPC code of some of the items in the shopping cart. The Defendant indicated to Ms. Lewandowski where she should scan the mattress, which Mr. Lee found suspicious.

         Mr. Lee testified that, after this incident, he learned that the Defendant used his Sam's Club membership card at a store in Alabama to return the comforter that he had purchased in Franklin on the date of this incident. The date of the return was December 30, 2011. He contacted the manager at the store in Alabama, who identified the Defendant by Mr. Lee's description of him, and the manager retrieved the Defendant's membership card.

         During cross-examination, Mr. Lee testified that the Defendant's membership began in June 1996, so by the time of the incident the Defendant was likely familiar with Sam's Club procedures. These procedures included presenting his membership card when entering the store, presenting it when checking out, and having his receipt verified by an exit greeter as he left the store. Mr. Lee said that, in the week of this alleged theft, he handled three or four shoplifting incidents. Other managers, who were also trained in loss prevention, may have dealt with other incidents. He agreed that there were sometimes errors in inventory, which accounted for part of the $85, 000 that Sam's Club lost from "shoplifting" and "shrinkage" in 2011. Another portion of the loss was attributed to scanners that did not work properly, ...

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