Court of Criminal Appeals of Tennessee, Knoxville
Session December 20, 2017
from the Criminal Court for Sullivan County No. S65754 James
F. Goodwin, Jr., Judge
Defendant, Bradley Craig, appeals as of right from his
conviction for theft of $500 or less. The Defendant argues
that the trial court erred in (1) denying the Defendant's
"spoliation motion/objection[, ]" (2) ruling that
documentary evidence from Walmart.com was inadmissible
because it was not authenticated, (3) allowing testimony
regarding a store inventory scan concerning the alleged
stolen merchandise, (4) denying the Defendant's motion
for new trial, and (5) using "stricken evidence" in
its reasoning for imposing a sentence of six months'
incarceration. Following our review, we affirm the judgment
of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Richard J. Phillips (on appeal), Jonesborough, Tennessee; and
Frank Slaughter, Jr., (at trial), Bristol, Tennessee, for the
appellant, Bradley Craig.
Herbert H. Slatery III, Attorney General and Reporter;
Nicholas W. Spangler, Assistant Attorney General; Barry P.
Staubus, District Attorney General; and Joshua D. Parsons,
Assistant District Attorney General, for the appellee, State
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE
February 29, 2016, the Defendant was charged with theft of
merchandise of $500 or less by an affidavit of complaint and
a criminal summons. See Tenn. Code Ann. §
39-14-103. The Sullivan County General Sessions Court found
the Defendant guilty as charged after a bench trial. The
Defendant appealed the conviction to the Sullivan County
Criminal Court. A jury trial was held on October 18, 2016.
Arnett testified that he was a loss prevention employee at
Walmart in Bristol, Tennessee. Mr. Arnett testified that on
August 17, 2015, he observed "merchandise on the shelf
with the wrappings from a box" in the
"housewares" section of Walmart. He explained that
there was "a toaster oven" and "packing that
goes around" the toaster on the shelf. Mr. Arnett said
that he took photographs of these items, and they were
entered into evidence as Exhibits 1 and 2, respectively. Mr.
Arnett explained that had the toaster oven been a display
item, rather than "one that had come out of a box[,
]" it "would be mounted and have . . . a plastic
piece across the front." Mr. Arnett testified that based
on his evaluation, the toaster oven he found was "a
stock item" rather than a display item. Mr. Arnett
identified Exhibit 2 as "packing from a box[, ] . . .
the foam and the plastic that surrounds the item to keep it
from getting scratched up." He said that he found these
packing items "lying more down towards the floor on a
lower shelf" in relation to the toaster oven, which
"was up higher[.]" Mr. Arnett also said that he did
not "see any other . . . open boxes" in that area
that would have indicated to him that the packaging had come
from a different box.
Arnett explained that he left the housewares location and
went to "[l]awn and garden" where he observed the
Defendant and another man, later identified as the
Defendant's father, leaving the store. Mr. Arnett said
that he observed the Defendant "walking in front of the
shopping cart[, ]" which contained purchased
merchandise, including "a couple of items and a toaster
oven[.]" Mr. Arnett testified that after the Defendant
left the store, Mr. Arnett obtained surveillance video
recordings for the time the Defendant was in the store. He
explained that the video recordings were under the control of
loss prevention and that store managers were the only
individuals who had access to the recordings. Mr. Arnett said
that he preserved the video recording and brought it with
him. The prosecutor explained that the surveillance video was
contained on a disc, which contained "six clips from six
different cameras." The disc was entered as Exhibit 3
and played for the jury.
first video clip was titled "Service Desk 1." Mr.
Arnett explained that this camera recorded activity "at
the customer service [desk] at the front of the store."
Mr. Arnett testified that based on his review of the video,
the recording was shot on August 17, 2015, at 10:27 a.m. He
further explained that the video showed the Defendant
"at the [service] desk" wearing a "pair of
shorts and a sleeveless shirt and a hat." Mr. Arnett
testified that if an individual returns an item to the
service desk without a receipt, the person's driver's
license is copied and the driver's license number is
entered into the system.
second video clip played was titled "3 Housewares."
Mr. Arnett said that this video recording began on August 17,
2015, at 10:51 a.m. in the housewares section of the store.
Mr. Arnett stated that this was "the same area where
[he] found the two items photographed in Exhibits 1 and
2." Mr. Arnett said that the Defendant was standing in
"the area where the toaster ovens [were] located."
When asked to describe what he saw happening in the video,
Mr. Arnett explained that the Defendant "was taking the
toaster oven out of the box and [was] sitting it on the top
of the shelf." Mr. Arnett further agreed that "the
area where he placed that particular toaster oven, [was] the
same location where [Mr. Arnett] found the toaster oven
later[.]" Mr. Arnett testified that the video also
portrayed the Defendant "putting some items on a lower
shelf" in the housewares aisle and that this was in the
same area where Mr. Arnett located the packaging materials
depicted in Exhibit 2. Mr. Arnett also testified that the
video recording portrayed the Defendant's placing the
empty toaster oven box in his shopping cart.
third video clip was played, and Mr. Arnett testified that
this video recording began on August 17, 2015, at 10:55 a.m.
Mr. Arnett said that the video revealed the Defendant's,
accompanied by his father, entering the store's
automotive aisle. Mr. Arnett explained that the following
items were located in the automotive aisle: "shop rags[,
]" "waxes, resin for . . . fibgerglass body, "
"body shop materials [for] working on cars[, ]"
"hoses[, ]" "cleaning stuff for cars[, ]"
"floor mats" for a car, and more "stuff like
that." The video recording also portrayed the Defendant
and his father taking multiple items from the shelves on that
aisle and placing the items in their shopping cart.
fourth video clip played was titled "5 Crafts[, ]"
and Mr. Arnett said that this video recording began on August
17, 2015, at 11:17 a.m. Mr. Arnett testified that based on
his review of the surveillance video recordings, the
Defendant and his father went to the fabrics aisle of the
store. When asked to describe the Defendant's actions in
the fabric aisle, Mr. Arnett said that after "looking
left" then "right[, ]" the Defendant took
"the empty box out and s[at] it down and start[ed]
sorting the materials that [were] in the" shopping cart.
Then, the Defendant "pick[ed] the box back up and [sat]
it back in the" shopping cart. When asked what he
believed was happening in this video, Mr. Arnett replied,
"[T]he items [were] being pulled from the [shopping
cart]" and "prepared to be packed in the box."
Mr. Arnett said that the shopping cart blocked part of the
view of the box after the Defendant placed it on the floor.
fifth video clip played was titled "6 Checkout[, ]"
and Mr. Arnett agreed that the location portrayed in this
recording was "the garden center location where [Mr.
Arnett] first visually came into contact with [the Defendant]
and his father." Mr. Arnett testified that the only
items visible in the shopping cart were "[t]he box"
and one other item. He agreed that none of the items placed
in the shopping cart from the automotive aisle were visible
in the cart.
Arnett testified that after the Defendant and his father left
the store and after reviewing the previously described
surveillance footage, Mr. Arnett went to housewares and took
the photographs that were introduced as Exhibits 1 and 2. Mr.
Arnett explained that he also went to the automotive aisle
with a "customer service rep" and that they
"scanned the items where [Mr. Arnett] had seen the items
prosecutor asked Mr. Arnett how the items in the automotive
aisle were situated. Mr. Arnett explained that some items
"were on shelves" and "some of them [were] on
hangers." He agreed that the individual shelves and
hangers had a description and price listed on them. Mr.
Arnett explained that he was able to determine which
merchandise items were missing "based on [his] review of
the video, the particular sections based on description and
based on [the] listed price where [he] believe[d] the items
asked how Walmart maintained inventory of particular items at
any given time, Mr. Arnett explained, "[A]ll items have
bar codes and . . . you scan the barcode of it[.]" He
explained that he scanned items using "a little gun and
they scan it and it will tell you what should be there, what
it costs and what department." Mr. Arnett agreed that
once an item, such as the mop the Defendant purchased, was
"scanned and paid for" the system "removes it
from inventory." To further explain the system, the
prosecutor posed the following hypothetical:
[I]f I'm understanding what you're saying correctly,
if say a car wax kit was purchased or if a particular terry
towel was purchased at any register in the store would it
automatically remove it from your on hand list [of inventory]
in the computer?
Mr. Arnett replied, "It does."
Arnett confirmed that he was able to "visually identify
particular areas where products were missing." He
testified that he observed that the following items were
missing: "[d]ifferent types of rags, shop rags, fiber
rags for polishing, cleaning waxing[, ] different kinds of
wax[, ]" "body material like resin for fiberglass[,
]" and "stuff mostly to detail . . . or work on
cars." Mr. Arnett testified that the shop rags ranged in
price from "$5.00 to $7.00[, ]" the terry cloth
rags were approximately "$12.00[, ]" the wax ranged
from "$9.00" to "$15.00[, ]" the resin
kit was approximately "$12.00[, ]" and the hoses
were "$15.00" or "$16.00[.]" Mr. Arnett
testified that he was able to determine through use of
scanning items "how many were actually on the shelf
versus how many were showing in inventory[.]" Mr. Arnett
recalled that there were "between ten and twelve"
rags missing, at least one waxing kit missing, approximately
three hoses missing, and at least one resin kit missing. Mr.
Arnett affirmed that to the best of his knowledge, none of
these items were "recovered anywhere else in the
store." Moreover, he agreed that he did not recall
finding any of the missing items "on a different hook or
placed in a different part of the aisle than where they
should be" and that none of the missing items were ever
Arnett testified that he had received specific training for
his "loss prevention job with Walmart." He
explained that he "had to train at four different stores
and that[ was] . . . approximately . . . 120 hours." Mr.
Arnett said that he trained with "more experienced loss
prevention officers." When asked if he had "done
loss prevention or any other type of investigation with law
enforcement . . . prior to this job[, ]" Mr. Arnett
responded that he had worked "with a private
cross-examination, Mr. Arnett testified that the toaster oven
box in the Defendant's cart "appear[ed] to be closed
because the box [wa]s upside down." Mr. Arnett agreed
that the weekend these events occurred was the same weekend
as a race at the Bristol Motor Speedway and that the store
"[p]robably was crowded." Furthermore, Mr. Arnett
testified that he did not have the toaster oven. He explained
that it was sold "for $5.00" at Walmart. Mr. Arnett
also testified that he did not have "another comparable
box" to the toaster oven box with him. Following these
questions, the prosecutor asked the trial court for a jury
out hearing, which the trial court granted.
prosecutor explained that defense counsel was planning to use
"a print off . . . from a Walmart website"
"regarding a particular toaster oven." Defense
counsel said that the printout depicted "the [toaster]
oven which matches the receipt for" the box purchased by
the Defendant and that he planned to ask Mr. Arnett to
identify the box. The prosecutor argued "that what [wa]s
in that particular picture that [defense counsel] ha[d]
printed off from the website [wa]s not the same as the item
that Mr. Arnett testified to earlier and introduced as
the jury out hearing, defense counsel asked Mr. Arnett if the
toaster oven in the Walmart print off was "consistent
with the toaster oven that was taken out of the box."
Mr. Arnett agreed that "[i]t does look like it."
Defense counsel also argued as follows:
[Defense counsel]: I have a matter of law I want to take up .
. . . Just as far as it relates to a jury instruction, one on
spoliation in so much as the toaster oven that was supposed
to be taken out of the box and put up, it was sold for $5.00
It wasn't kept knowing that this case was going on and so
much as to - I mean if they had that toaster oven and on the
receipt that they've got it would be one thing if it
would match up with this one with what he has so that's
the basis for it. That toaster oven was something that tips
them off and Walmart decides not to keep it but to sell it
[Trial court]: They took a picture of it.
. . . .
[Trial court]: But in any other shoplifting or theft case I
don't know of any cases out there that say that the
merchandise has to be kept, that the store can't dispose
of it. Do you have a case that says that?
[Defense counsel]: Not yet. No, I don't have one.
[Trial court]: At this point I'm going to overrule the
motion for that reason[.]
cross-examination, Mr. Arnett acknowledged that he had never
seen the Defendant or the Defendant's father prior to the
day of the incident. He testified that he followed the
Defendant and his father out of the store but that he did not
stop them. Mr. Arnett explained that he followed the
Defendant out of the store because he received "a phone
call that two individuals were acting shady in automotive and
fabrics and [Mr. Arnett] c[a]me out to look for them."
Mr. Arnett testified that he believed the two men got into a
truck in the store parking lot.
asked how he determined that the Defendant had stolen $430.00
worth of merchandise, Mr. Arnett explained, "That's
what was totaled up by barcodes." Defense counsel asked
Mr. Arnett if he "total[ed] those up[, ]" and he
said, "They were scanned and I was given a printout that
had that on it. I was there when they were scanning it but
no, I did not physically scan it myself." Mr. Arnett
testified that the individual who performed the scanning was
not present and that he did not have the list of scanned
items totalling $430.00.
redirect examination, the prosecutor asked Mr. Arnett if he
was able "to secure a copy of the receipt" of the
Defendant's transaction during which he paid for a
toaster oven. Mr. Arnett affirmatively replied and identified
the document as ...