### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on Briefs at Knoxville November 17 , 2015

STATE OF TENNESSEE v. PAULA SHOTWELL

Appeal from the Criminal Court for Shelby County

No. 12

- 01589 W. Mark Ward , Judge

No. W201 4

- 0 2194

- CCA

- R3

- CD

- Filed January 21, 2016

The Defendant, Paula Shotwell

, was convicted after a bench trial in the Criminal Court for Shelby County of theft of property valued at more than $500 but less than $1000 , a Class E felony

. See T.C.A. § § 39

- 14

- 103 ; 39

- 14

- 105 (2014)

. The trial court sentenced

the Defendant to two years ‟ probation . On appeal, the Defendant contends that (1) the evidence is insufficient to support her conviction and (2) the State violated her due process rights by failing to preserve the stolen items as evidence

. We affirm the judgment

of the trial court

.

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

R OBERT H. M ONTGOMERY

, J R

., J. , delivered the opinion of the court, in which J OHN

E VERETT W ILLIAMS and R OGER A. P AGE

, JJ.

, joined.

Lance R. Chism (on appeal) and Taylor Eskridge (at trial)

, Memphis, Tennessee

, for the appellant, Paula Shotwell

.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior

Counsel ; Amy P. Weirich, District Attorney General; and Jose Leon and Greg Gilbert

, Assistant District Attorney s General, for the appellee, State of Tennessee.

OPINION

This case arises from a n October 29, 2011 incident in which the Defendant was accused of the theft of more than $800 in merchandise from a Macy‟s department store at
the Wolfchase Galleria shopping mall in Memphis. The Defendant waived her right to a jury trial and was convicted after a bench trial of theft of property valued at more than $500 but less t han $1000

.- 2

-

At the trial, Otis Davis , a lo ss prevention officer at Macy‟s , testified that his job

duties included watching customers using a closed

- circuit video surveillance system . He

stated that on October 29, 2011, he observed the Defendant browsing the “high

- end department” with a large, empty shopping bag and quickly picking up ladies‟ blouses and evening gowns without noting the items‟ size s or price s . Mr. Davis stated that he called

hi s partner, Rose McKee , who p osed as a shopper on the sales floor in order to observe suspected shoplifters and follow ed them into areas not equipped with surveillance cameras, such as the ladies‟ fitting rooms.

A n October 29, 2011 video recording from the Macy‟s surveillance cameras and four photographs were received as exhibits. The recording showed a woman browsing ladies‟ clothing and choosing vari ous items from clothing racks . The woman carried

several pieces of clothing, a red and white shopping bag, and a purse. The woman

s elected clothes and draped them over her arm . The clothing included a red blouse , a black blouse , and a grey suit or dress . The woman entered a fitting room and

, s everal

minutes later

, left carrying fewer pieces of clothing. The photographs were captured from the recording and show ed the woman and the clothing she carried

.

Mr. Davis testified that after the Defendant left the fitting room, Ms. McKee

examined the fitting room fo r clothing. He said that the Defendant went to another department, selected more clothes, and entered a second fitting room near the exit into the shopping mall. Mr. Davis stated that a fter the Defendant left the second fitting room, Ms.

McKee examined the fitting room and “saw that all that merchandise was missing.”

Mr. Davis testified that the Defendant left the store and that he and Ms. McKee stopped the Defendant in the mall , identified themselves, and asked for the store‟s

merchandise. Mr. Davis stated that the Defendant handed them the red and white shopping bag and that they recovered e arrings, e vening dresses

, and blouses from the bag. He said that the merchandise had a value of more than $800 and that t he clothes

were still on hangers. Mr. D avis stated that he and Ms. McKee took the Defendant to the loss prevention office, completed the proper paperwork, and called the police.

Mr. Davis testified that he, Ms. McKee, and the Defendant signed a “statement of admission,” which contained an item ized list of the clothing removed from the Defendant‟s shopping bag.

The statement of admission provided

,

I, Paula Shotwell, living at [address], make this statement voluntarily and of my own free will and accord, without intimidation by threats or promises,

that on 10

- 29

- 11 I did take merchandise and/or cash belonging to Macy‟s- 3

-

valued at $888.50, without cons ent or permission and with the intent to permanently deprive Macy‟s of their property.

The form contained a handwritten list of nine pieces of merchandise with each item‟s stock keeping unit (SKU) number, a description, quantity, and price. The items and their corresponding prices were as follows :

Description Total Price

Black dress $109.00 Purple $79.00

Red Suit $99.00 Black Top $73.50

Black dress $179.00 Black top $69.50 Gray top $49.00 B.B. Brilliant Earring $125.00 B.B. Brilliant Earring $100.00

The list reflect ed that the total value of the items was $88 8

. 5 0 , although we calculate the total as $883.00 . The form was signed by the Defendant, Mr. Davis, and Ms. McKee

and was dated “10

- 30

- 2011” by the Defendant and Ms. McKee

. Mr. Davis said that he scanned each piece of clothing into the store‟s computer system, that the computer generated a printed report with the price of each item, and that he used this report to complete the handwritten list on the statement of admission

. Mr. Davis stated that the Defendant did not pay for the clothing and that she did not have permission to take the merchandise without paying for it.

On cross

- examination, Mr. Davis testified that the Defendant was unaccompanied

in the store and that she was ca rrying a red and white shopping bag and a dress bag. He said that the red and white bag appeared to be empty and that he did not see the Defendant in the jewelry department. Mr. Davis stated that he did not know the number

of items the Defendant took into the fitting room because she was carrying so many. He said, however, that he remember ed that she had a black evening dress, a gray evening dress, a red suit, and several blouses. Mr. Davis stated that the surveillance equipment

continued to record a fter the Defendant left the first fitting room. He said that he was not personally responsible for maintaining the surveillance recordings

.

Mr. Davis testified that he joined Ms. McKee while she conducted floor

surveillance of the Defendant but that he did not remember which items the Defendant brought out of the fitting room. He said, however, that the Defendant brought out “more than five” fewer items than she had taken into the fitting room.- 4

-

Mr. Davis testified that the Defendant left Macy‟s wit h only the two shopping bags. He said that the Defendant placed some pieces of clothing on a “fixture” before she left. Mr. Davis stated that Ms. McKee did not find hangers or clothing sensors in the fitting rooms the Defendant had occupied.

Mr. Davi s testified that the shopping mall exit of Macy‟s was equipped with surveillance cameras, that the direction of each camera w as controlled by the camera operator, and that because he was on the sales floor and not in the control room , the

camera s would not have recorded his and Ms. McKee ‟s confronting the Defendant. Mr. Davis said that the loss prevention office included a holding area and that he confined the Defendant in the holding area while he completed paperwork and waited for the police. He stated that he searched the Defendant‟s dress bag and found additional pieces of clothing. Mr. Davis said that all items not belonging to Macy‟s were given to the police.

Mr. Davis testified that the Defendant told him she planned to sell the clothing to a person in the shopping mall. He said that the Defendant did not attempt to prove she had paid for the clothing. Mr. Davis stated that the Defendant was upset and “was

b egging us not to prosecute her.” He said that he wrote the itemized list on the

statement of admission and that he scanned the clothing into the system to create an internal report . He stated that if an item did not belong to Macy‟s, the barcode would

no t have been accepted by the computer system. Mr. Davis denied giving the Defendant a blank statement of admission to sign and late r filling in the list of items and denied telling the Defendant that she would be free to leave if she signed the statement o f admission. He said that generally, a statement of admission was completed in every theft case.

Mr. Davis presented to the trial court a computer

- generated report entitled “Property Evidence/Return To Stock Record” reflecting the items he scanned. Th e form listed the “Date of Incident” as October 29, 2011, and the “Return to Stock” date as October 30, 2011. There were nine items listed by Department, Class, SKU number, description, and price. 1

Mr. Davis testified that he took photographs of the items in the Defendant ‟s possession , that the State did not request the photographs

, and that he did not have them

in court . Mr. Davis said that the items were not discounted or on sale. Mr. Davis stated

1 The price list was identical to the statement of admission form except for the item labeled “black top” on the statement of admission and “drape neck fur top” on the return to stock record . The r eturn to s tock record lists a price of $79.00, whereas the statement of admission list s it as $73.50. Neither party raised this discrepancy at trial or in their briefs. In any case, the total of the merchandise was more than $500.- 5

-

that the computer system would reflect if an item were on sale but later said that a
discount would show “most of the time” unless the store had not “set the sale

. ”

Mr. Davis testified that the clothing was kept in an evidence room but after his

third court appearance , it was returned to the sale s floor. Mr. Davis did not know the

brand names

, sizes

, or whether the items had been sold

.

On redirect examination, Mr. Davis identified the red and white shopping bag the Defendant was carrying as a “Charming Charlie bag” from another store in the sh opping mall. He said that the computer system differentiate d between item s from Macy‟s that had been purchased and items that had not been purchased. Mr. Davis stated that the

computer system did not identif y the two pairs of earring s as having been purc hased. He clarified that the computer

- generated report would have reflect ed whether an item was

discounted and said that none of the items recovered from the Defendant were discounted. Mr. Davis denied having made promises to the Defendant or having coerc ed her to sign the statement of admission.

Rose McKee, a Macy‟s loss prevention officer, testified that on October 29, 2011, she was working floor surveillance posing as a shopper . Ms. McKee stated that Mr.

Davis called her and reported a woman ca rrying an empty shopping bag and picking up

merchandise without looking at sizes or prices. Ms. McKee said that she observed the

Defendant ‟s engaging in the same behavior. Ms. McKee stated that the Defendant

entered two fitting rooms.

Ms. McKee testif

ied that after Mr. Davis joined her on the floor and the Defendant

left the second fitting room, Ms. McKee looked inside the Defendant ‟s fitting room

. Ms. McKee said that the room was empty and that she did not find hangers, security tags, price tags, or money. She stated that she and Mr. Davis confronted the Defendant when the Defendant was past the “point of sale” but inside the exit that led to the shopping mall. Ms. McKee identified herself in the surveillance video recording and identified the red and white shopping bag in the photographs

.

Ms. McKee testified that the Defendant had merchandise in a shopping bag and a

dress bag. She said that she and Mr. Davis identified themselves, asked for the merchandise, and escorted t he Defendant to the loss prevention office. Ms. McKee

stated that they completed paperwork and that the Defendant told them “she had someone in the mall waiting on her for the merchandise.” Ms. McKee said that they

called the police and that the police a rrested the Defendant. Ms. McKee identified her signature at the bottom of the statement of admission and denied forcing the Defendant to sign it. Ms. McKee stated that the c omputer

- generated report was created by scanning the price tags of the items and that the report accurately reflected the items recovered from the Defendant‟s shopping bags.- 6

-

Ms. McKee testified that the value of the items totaled $888.50 and that generally loss prevention officers took photograph s of the stolen items and returned t he items to
stock. She said that t he items were new and in sellable condition.

On cross

- examination, Ms. McKee testified that Mr. Davis completed the

statement of admission form and took photographs of the clothing

. She did not remember the time of day the incident occurred. Ms. McKee stated that the Defendant was stopped outside the store exit, not inside. Ms. McKee said that the Defendant had a gray suit and earrings when she entered the fitting room and that th e Defendant left the

room with three items, which the Defendant placed on a clothing rack before attempting to leave the store. Ms. McKee stated that she observed the Defendant in the jewelry department before the Defendant went into the fitting room.

Ms . McKee testified that she took the Defendant‟s purse and the dress bag to the loss prevention office and that Mr. Davis scanned the stolen items and completed the

statement of admission . Ms. McKee said that she returned the Defendant ‟s purse and

that the police and Mr. Davis “took care of” the dress bag. Ms. McKee stated that the Defendant begged them not to have her arrested but that the Defendant did not cry

.

Memphis Police Officer J.Z. Harris testified that on October 29, 2011, he responded to a sh oplifting call a t Wolfchase Galleria . He said that when he arrived, the Defendant had been detained by store security and that items were “laying on the floor to be photographed.” He stated that the items included evening gowns, purses, and a few pieces of jewelry. Officer Harris stated that he placed the Defendant under arrest and started processing the paperwork due to the value of the stolen items . He said that the value of the clothing was more than $500 and that he left the clothing at the store.

On cross

- examination, Officer Harris testified that the Defendant did not have access to the items on the floor in the loss prevention office. Relative to the types of items on the floor, h e only recalled the eve ning gowns and thought the jewelry was earrings. Officer Harris said that at the time of the arrest, generally the police did not take photographs of the stolen items, although that policy had since changed. He stated that loss prevention officer s usuall y took photograph s of the items and that it was routine procedure for the items to remain at the store

.

Officer Harris testified that during the drive to the police station, the Defendant was crying, screaming, kicking, and uncontrollable . He reported to his superiors that the

Defendant might need to be restrained further. Officer Harris stated that the Defendant was not fully cooperative and was emotional but that she did not resist arrest.

The trial court found the Defendant guilty of theft of property valued at more than $500 but less than $1000 . The court found that the witnesses‟s testimony as to the value- 7

-

of the property was significant and that the D efendant signed an unrefuted confession or statement of admission

. The court noted that even if all the items were discounted by forty percent, the total value would be more than $500. The court noted the combination

of the witnesses‟ testimony and the computer

- generated report and concluded that “her

admission that that wa s the amount . . . is sufficient” to determine value. This appeal

followed.

The Defendant contends the evidence is insufficient to support her conviction

. She argues that the value of the stolen merchandise was not proven beyond a reasonable

doubt

. She does not argue that the State failed to show the statutory elements of theft. The State responds that the evidence sufficient ly establish ed the value of the stolen items

.

In determining the sufficiency of the evidence, the standard of review is “ whet her, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ” Jackson v. Virginia , 443 U.S. 30 7, 319 (1979); see State v. Vasques , 221 S.W.3d 514, 521 (Tenn. 2007). The State is “ afforded the strongest legitimate view of the evidence

and all reasonable inferences ” from that evidence. Vasques , 221 S.W.3d at 521. The appellate courts do not “ reweigh or reevaluate the evidence, ” and qu estions regarding

“ the credibility of witnesses [and] the weight and value to be given the evidence . . . are resolved by the trier of fact. ” State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984).

“ A c rime may be established by direct evidence, circumstantial evidence, or a

combination of the two. ” State v. Hall , 976 S.W.2d 121, 140 (Tenn. 1998); see State v.

Sutton , 166 S.W.3d 686, 691 (Tenn. 2005). “ The standard of review „ is the same whether

the conv iction is based upon dir ect or circumstantial evidence.‟” State v. Dorantes , 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson , 279 S.W.3d 265, 275 (Tenn

. 2009)).

A person commits theft of property when “ with intent to deprive the owner of

propert y, the person knowingly obtains or exercises control over the property without the

owner ‟ s effective consent. ” T.C.A. § 39

- 14

- 103(a) . Theft is a Class E felony “ if the value of the property

. . . is more than five hundred dollars ($500) but less than one thousand dollars ($1,000) .” T.C.A. § 39

- 14

- 105 . Value is defined as

(i) The fair market value of the property or service at the time and place of the offense; or

(ii) If the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense;- 8

-

. . .

(C) If property or service has value that cannot be ascertained by the criteria set forth in subdivisions (a)(36)(A) and (B), the property or service is deemed to have a value of less than fifty dollars ($50.00)[.]

T.C.A. § 39

- 11

- 106(a)(36)(A), (C).

The record reflects that the computer

- generated report was created by scanni ng the price tags of the items in the Defendant‟s possession . Mr. Davis testified that the computer would have registered any applicable discounts, provided the store had “set the sale.” The Defendant signed the statement of admission, which listed the same items and the total price. Despite a discrepancy between the price list on the statement of admission and the list on the computer

- generated report related to one item, the va lue calculated using either value is more than $500. Mr. Davis testified that the merchandise was not on

sale. The trial court found that the signed statement of admission alone was sufficient proof to establish the valu e of the stolen items, and any conflicts in the evidence were resolved by the court. We conclude that the evidence is sufficient to establish the value

of the stolen property and to support the Defendant‟s conviction . S he is not entitled to

relief on this basis.

The Defendant cont ends that the State‟s failure to collect and preserve the stolen items violated her due process rights

. The State responds that the Defendant waived this

issue and , alternative ly

, that the State had no duty to preserve the clothing as evidence.

The Defend ant argues the failure to obtain a ruling did not result in waiver but requests plain error review in the event this court concludes she has waived appellate

consideration of the issue.

The Defendant filed a pretrial motion to dismiss the indictment fo r failure to preserve exculpatory evidence. The record does not reflect that the trial court held a hearing on the motion

, and the trial court did not issue an oral or written pretrial ruling on

the motion. At the trial, the Defendant discussed the issue during closing argument and

raised it in the motion for new trial , although the trial court failed to address the issue specifically in its order denying the motion for new trial

. This issue was raised in th e trial

court and is not waived. We will therefore consider the issue on its merits.

The Due Process Clause of the Fourteenth Amendment to the United States Constitution and article I, section 8 of the Tennessee Constitution afford every criminal

defen dant the right to a fair trial. See Johnson v. State , 38 S.W.3d 52, 55 (Tenn. 2001). As a result, the State has a constitutional duty to furnish a defendant with exculpatory evidence pertaining to his guilt or lack thereof or to the potential punishment f aced by a

defendant. See Brady v. Maryland , 373 U.S. 83, 87 (1963)

.- 9

-

Our supreme court has held that the State has a duty to preserve discoverable

evidence when the evidence

might be expected to play a significant role in the suspect ‟ s defense. To

meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed,

and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably a vailable means.

State v. Ferguson , 2 S.W.3d 912, 917 (Tenn. 1999) (quoting California v. Trombetta , 467 U.S. 479, 488

- 89 (1984) ) ; see Tenn

. R

. Crim

. P

. 16 (discoverable evidence)

.

In the present case, the Defendant has not presented any evidence that the clothing itself was exculpatory or material to the Defendant‟s defense. We note the trial court‟s finding that the signed statement of admission independently was sufficient proof of the clothing‟s value. The information in the statement of admission was corroborated by the

computer

- generated report and the testimony of Mr. Davis and Ms. McKee that Mr. Davis immediately completed both documents upon detaining the Defendant. Mr. Davis testified that the clothing was not on sale and that the computer s ystem would have taken into account sale prices. T he police did not have a duty to collect the clothing

, and

therefore no due process violation occurred

. The Defendant is not entitled to relief on

this basis

.

In consideration of the foregoing and the re cord as a whole, we affirm the judgment of the trial court.

____________________________________ ROBERT H. MONTGOMERY, JR., JUDGE