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State v. Craig

Court of Criminal Appeals of Tennessee, Knoxville

April 16, 2018

STATE OF TENNESSEE
v.
BRADLEY CRAIG

          Session December 20, 2017

          Appeal from the Criminal Court for Sullivan County No. S65754 James F. Goodwin, Jr., Judge

         The 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.

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

          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 of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         On 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.

         Jury Trial

         Mark 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 "l[]ying 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.

         Mr. 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.

         The 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.

         The 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.

         The 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.

         The 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.

         The 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.

         Mr. 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 being taken."

         The 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 were missing[.]"

         When 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."

         Mr. 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 recovered.

         Mr. 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 investigator temporarily."

         On 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.

         The 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 Exhibit 1."

         During 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 for $5.00.
[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[.]

         On 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.

         When 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.

         On 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 ...


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