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State v. Gaines

Court of Criminal Appeals of Tennessee, Nashville

October 13, 2017

STATE OF TENNESSEE
v.
KANDI SUE GAINES

          Session Date: September 12, 2017

         Appeal from the Circuit Court for Lawrence County No. 33715 J. Russell Parkes, Judge

         The 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 court.

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

          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.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which John Everett Williams and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         The 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.

          No transcript was prepared of the trial, but a statement of evidence reflects that the following evidence was offered:

         Timothy 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.

         Mr. 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.

         Lawrenceburg 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.

         Officer 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 ...


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