Court of Criminal Appeals of Tennessee, Nashville
Session Date: September 12, 2017
from the Circuit Court for Lawrence County No. 33715 J.
Russell Parkes, Judge
Defendant, Kandi Sue Gaines, was convicted at a Lawrence
County Circuit Court bench trial of shoplifting property
valued at $500 or less, a Class A misdemeanor, for which she
is serving an eleven-month, twenty-nine-day sentence on
probation. See T.C.A. § 39-14-146 (2014)
(amended 2017) (theft of property involving merchandise). On
appeal, she contends that the evidence is insufficient to
support her conviction. We affirm the judgment of the trial
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Claudia S. Jack (at trial and on appeal), District Public
Defender; Travis B. Jones (at trial and on appeal), Assistant
District Public Defender; and Brandon E. White (on appeal),
Columbia, Tennessee, for the appellant, Kandi Sue Gaines.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; Brent Cooper, District Attorney
General; Christi Thompson, Assistant District Attorney
General, for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which John Everett Williams and Robert L. Holloway, Jr.,
H. MONTGOMERY, JR., JUDGE
Defendant's conviction results from a September 29, 2015
incident involving cosmetics items valued at $317 at a
Walmart store. The evidence shows that the Defendant placed
the items inside a cosmetic bag, which was also Walmart
merchandise. The State's theory was that the
Defendant's conduct constituted shoplifting, whereas the
Defendant's position was that she merely placed the items
inside the bag in order to keep them from falling through the
open grid of her shopping cart.
transcript was prepared of the trial, but a statement of
evidence reflects that the following evidence was offered:
Huntley, a Walmart asset protection employee, testified that
he observed the Defendant, who had several items in her cart
and was openly carrying a firearm at her side, in the
cosmetics department. He saw her take a black cosmetic bag
from a shelf, remove the price tag, and place the item in her
cart. He said the Defendant selected cosmetic items and
placed them inside the unzipped bag. Because Walmart policy
prohibited him from approaching an armed, suspected
shoplifter, he called the police. Officer Jason Lee, who was
already inside the store, responded. Mr. Huntley said he and
Officer Lee watched the Defendant continue to place cosmetics
into the black bag in her cart. Mr. Huntley said he and
Officer Lee approached the Defendant, disarmed her, and took
her to the back of the store for questioning. Mr. Huntley
said the Defendant stated she did not intend to steal the
merchandise and that between cash and her debit card, she had
approximately $175 available for her purchases that day. He
did not ask whether she had credit cards available for any
purchases. Another employee scanned the cosmetics that were
inside the bag and created a receipt showing the merchandise
was valued at $317. The receipt was received as an exhibit.
Mr. Huntley identified a video recording from the store's
security footage, which showed the Defendant in the cosmetics
department from 12:05 p.m. until 12:43 p.m. The recording
showed the Defendant placing items into a bag inside her cart
and showed two men approach her and escort her off camera.
Huntley did not testify that the Defendant closed the
cosmetics bag by zipping it after placing items inside the
bag. He said the Defendant did not place store merchandise
inside the backpack she wore, nor did she place the backpack
inside the cart at any point during his observation. He did
not locate the price tag from the cosmetic bag, nor did he
locate protective plastic from the bag's handles or any
filling materials. He said the items inside the makeup bag
were plastic-wrapped lip gloss and lipstick cartridges
without plastic or cardboard backings. He said that although
it was plausible the Defendant could have placed small items
in the bag to prevent them from falling through the shopping
cart's grids, the items could have been placed sideways
in the cart in order to keep them inside the cart.
Police Officer Jason Lee testified that on September 29,
2015, he was inside Walmart when he received a dispatch call
about a suspected shoplifter at the store. He met with Mr.
Huntley and a store manager and learned a woman was suspected
of shoplifting cosmetics. Officer Lee observed the Defendant
select a lipstick cartridge and place it inside a cosmetics
bag. He approached her, disarmed her, explained why he had
approached her, escorted her to the back of the store, and
issued a shoplifting citation.
Lee testified that Mr. Huntley did not tell him that the
Defendant had removed a price tag from the cosmetics bag.
Officer Lee did not see the Defendant move toward an exit or
a cash register. He said she remained in the cosmetics
department during the time he observed her. He said ...