        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 10, 2012

                  STATE OF TENNESSEE v. RICKEY BENSON

                  Appeal from the Criminal Court for Shelby County
                   No. 11-01429    Carolyn Wade Blackett, Judge


                 No. W2011-01436-CCA-R3-CD - Filed August 2, 2012


The defendant, Rickey Benson, was convicted by a Shelby County Criminal Court jury of
burglary of a building and theft over $1000, both Class D felonies, based on his theft of
cigarettes from a Memphis Kroger. He was subsequently sentenced by the trial court as a
multiple offender to concurrent terms of seven years for each conviction. He raises the
following five issues on appeal: (1) whether the evidence was sufficient to sustain the
convictions; (2) whether there was a proper chain of custody and authentication for the
admission of the store’s surveillance videotape; (3) whether the trial court erred by admitting
the store’s inventory review documents; (4) whether his constitutional rights were violated
by the prosecutor’s allegedly improper closing comments; and (5) whether the trial court
imposed an excessive sentence. Following our review, we affirm the judgments of the trial
court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

Stephen Bush, District Public Defender; Phyllis Aluko (on appeal) and Thomas Pera (at
trial), Assistant Public Defenders, for the appellant, Rickey Benson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Lora Fowler, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS
       At approximately 11:30 p.m. on November 1, 2009, Patrick Stubblefield, the head of
the produce department at a Memphis Lamar Avenue Kroger, was taking inventory after the
store had closed when he heard a noise, looked up, and saw a man dressed in black crouched
beside the tobacco products near the front of the store. The man would not identify himself
and exited the store with a large plastic trash bag full of merchandise. The defendant was
subsequently identified as a suspect and charged with one count of burglary of a building and
one count of theft over $1000.

                                             Trial

       At trial, Stubblefield testified that he was working near the front of the store while the
meat manager, who was the only other person who was supposed to be in the closed store,
was taking inventory in the back part of the store. He said he heard a noise from the front,
looked up, and spotted a man with a large black trash bag filled with product crouched beside
the “tobacco corral” area near register one. Stubblefield stated that the man was dressed in
baggy black shorts and a black t-shirt, was wearing some sort of black cloth on his head, and
had tattoo markings beneath his eyes.

       Stubblefield testified that he approached to within about twelve feet of the man and
asked him to identify himself. The man, however, refused to give him a straight answer,
instead telling him that he was picking up trash and that he was “his brother,” as he gestured
toward the back of the store. The man then made his way to the front doors of the store,
carrying the garbage bag with him, and exited by turning the lock knob. After his departure,
Stubblefield asked the meat manager if he had seen anyone in the store. The meat manager
answered that he had not, and he and Stubblefield exited the store together to look for the
security guard. Stubblefield also called the store’s manager, who returned to the store to
review the surveillance video with Stubblefield.

       Stubblefield made a positive courtroom identification of the defendant as the man he
had seen in the store. He testified that the area was well-lit and estimated that he spent
approximately a minute and a half to three minutes in conversation with the defendant. He
acknowledged that he viewed the surveillance tape within an hour of his encounter with the
defendant, that the defendant was surrounded by three bailiffs when he identified him at the
preliminary hearing, and that he did not mention anything about the defendant’s tattoos at the
preliminary hearing. He insisted, however, that his identification of the defendant was based
on his personal encounter with him at the store and that he was certain of his identification.

      Cecil Wages, Kroger’s loss prevention officer, testified that the surveillance video
system at the Lamar Avenue store had a watermark feature designed to prevent alteration or
copying of the tapes. He said he had viewed the surveillance video, which contained a date

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and time stamp, and that it depicted the Lamar Avenue Kroger.

        Phillip McWilliams, senior co-manager of the Lamar Avenue Kroger, identified the
surveillance tape of the incident, as well as a still photograph made from the tape and the
store’s shelf review documents of the missing cigarettes, which reflected that the store had
an estimated “at cost” merchandise loss of $1,587.34 and an estimated retail merchandise
loss of $2,378.71. McWilliams explained how they arrived at those figures, testifying that
the store uses an ordering system called “Computer Assisted Ordering,” which monitors each
item of inventory from the moment it is brought into the store until it is removed from the
inventory balance as the cashier scans it for sale to a customer. To determine the loss in this
case, they performed a shelf review using a portable scanner. He described the process:

               This is a shelf review that we did, meaning that we had a drug D.M.
       manager log into that computer, our portable R.F. gun that we use in the store
       and she scanned to determine the los[s]es that we incurred to the best of our
       ability as far as knowing what was lost. If it was an empty hole and it showed
       that we had 50 packages of Newport cigarettes for instance and there’s
       physically zero there now, we know we lost 50. And then it would be totaled
       up at the back end of the process.

       On cross-examination, McWilliams testified that the shelf review was performed at
3:32 p.m. on November 2, 2009, which was eight hours after the store had opened. He
acknowledged that the cigarette area of the store was not closed to the public during those
hours.

        Sergeant Gladys Burton of the Memphis Police Department’s Burglary Bureau
testified that she took the defendant into custody after viewing the store’s surveillance video
with Mr. McWilliams on November 2, 2009.

      The defendant elected not to testify and rested his case without presenting any
evidence.

                                    Sentencing Hearing

        At the sentencing hearing, the defendant acknowledged that he had at least twenty
misdemeanor convictions for theft of property, which, he said, were based on stealing small
items such as candy bars, potato chips, and household goods. He also acknowledged that he
had two pending assault cases and a pending charge of setting fire to personal property, which
he had picked up while in jail. He stated that he received disability benefits for a mental
illness, but he did not specify which mental illness he suffered. The presentence report, which

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reflected the defendant’s extensive criminal record as well as his self-report of having been
diagnosed with bipolar disorder at the age of ten, was admitted as an exhibit to the hearing.

       At the conclusion of the hearing, the trial court found one enhancement factor, the
defendant’s previous history of criminal convictions or criminal convictions. See Tenn. Code
Ann. § 40-35-114(1) (2010). The court found no applicable mitigating factors. The court,
therefore, sentenced the defendant as a Range II offender to concurrent terms of seven years
for each offense.

                                          ANALYSIS

                                I. Sufficiency of the Evidence

        As his first issue, the defendant challenges the sufficiency of the evidence in support
of his convictions. Specifically, he argues that the State failed to show beyond a reasonable
doubt his identity as the perpetrator or that the value of the stolen cigarettes was $1000 or
more.

        When the sufficiency of the convicting evidence is challenged on appeal, the relevant
question of the reviewing court is “whether, 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. 307, 319 (1979); see
also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

        All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial
judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor
of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme
court stated the rationale for this rule:

               This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given to
       the testimony of witnesses. In the trial forum alone is there human atmosphere
       and the totality of the evidence cannot be reproduced with a written record in

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       this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).

      Finally, “[a] jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal a convicted
defendant has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982).

        The defendant argues that the evidence of his identity as the perpetrator consisted only
of “shadowy images” on the surveillance tape and Stubblefield’s in-court identifications,
which were “prejudicially tainted by the unfairly suggestive manner” in which they took
place. Stubblefield, however, was unequivocal that his identification of the defendant, both
at the preliminary hearing and at trial, was based on his in-store confrontation with him rather
than his viewing of the surveillance video or from seeing the defendant surrounded by bailiffs
at the preliminary hearing. Furthermore, the surveillance tape, which contains a surprisingly
good view of the defendant’s facial features, supports Stubblefield’s testimony that his
encounter with the defendant occurred in a well-lit environment and under circumstances that
afforded him a relatively lengthy and clear view of the defendant’s face. Stubblefield also
explained that he did not mention the defendant’s tattoos at the preliminary hearing because
no one asked him about them. We conclude, therefore, that the evidence in this case is
sufficient to establish the defendant’s identity as the perpetrator of the offenses.

         The defendant next argues that the evidence was insufficient to establish the value of
the stolen cigarettes. In support, he relies on the fact that the shelf inventory review was not
performed until after the store, including the cigarette area, had been open to the public for
approximately eight hours. However, according to McWilliams’ testimony, any item
purchased by a store customer would have been removed from the store’s computer inventory
at the time of purchase. Thus, the fact that customers had access to the cigarette area after the
defendant’s previous evening’s theft, but before the shelf inventory was performed, should
not have affected the store’s calculated losses from the theft. McWilliams testified that, based
on the packages of cigarettes that were included in the store’s inventory but which were
physically missing from the store, the store suffered an estimated at cost loss of $1,587.34
and an estimated retail loss of $2,378.71. This evidence was more than sufficient for the jury
to find that the value of the stolen cigarettes was $1000 or more. We conclude, therefore, that
the evidence is sufficient to sustain the defendant’s convictions.

                            II. Admission of Surveillance Tape



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        The defendant next contends that the trial court erred by admitting the store
surveillance video because the State failed to show a proper chain of custody to establish its
reliability.

        Before tangible evidence can be admitted into evidence, a witness must be able to
identify the evidence or establish an unbroken chain of custody. State v. Scott, 33 S.W.3d
746, 760 (Tenn. 2000). While every possibility of tampering does not have to be excluded,
the circumstances must establish a reasonable assurance of the identity and integrity of the
evidence. Id. The chain of custody requirement is “‘to demonstrate that there has been no
tampering, loss, substitution, or mistake with respect to the evidence.’” Id. (quoting State v.
Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993)). We will not reverse the trial court’s
decision in this regard absent a showing of a clearly mistaken exercise of its discretion. See
State v. Beech, 744 S.W.2d 585, 587 (Tenn. Crim. App. 1987).

        This issue arose because the prosecutor discovered that a copy of the surveillance tape
that had been made for the police and kept in the property room was blank. Instead of the
copy, therefore, the prosecutor sought to introduce the original tape. In a jury-out hearing
held immediately before trial, Phillip McWilliams, the store’s co-manager, identified the
original store surveillance video from the time of the robbery and said that it had been kept
in a desk drawer in the store manager’s office, which was accessible only to himself, the other
co-manager, and the manager. He testified that, to his knowledge, the tape had not been
altered in any way. He acknowledged, however, that neither the office nor the desk drawer
were kept locked at all times. At the conclusion of the hearing, the trial court denied the
defendant’s motion to exclude the tape, finding that McWilliams’ testimony with respect to
where and how the tape had been kept was sufficient for the videotape to be admitted into
evidence.

        We find no error in the trial court’s ruling. Both McWilliams and the loss prevention
officer, Cecil Wages, identified the evidence as the surveillance tape of the Lamar Avenue
Kroger at the time of the theft. McWilliams further testified that the tape had been kept in a
drawer in the desk of the store manager’s office, where access was limited to only himself and
two other store managers. Wages also testified that the surveillance tape’s watermark feature
prevented alteration or copying of the videotape. We note that this watermark is visible when
the tape is fast forwarded or reversed and that it may, perhaps, explain why the copy that was
attempted resulted in a blank videotape. Regardless, we conclude that the defendant is not
entitled to relief on the basis of this issue.

                    III. Admission of Inventory Review Documents

       The defendant next contends that the trial court erred by admitting the inventory review

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documents pertaining to the missing cigarettes. He argues that their probative value was
substantially outweighed by their prejudicial effect because “[s]ome of the missing items that
were attributed to the theft . . . could have been taken or sold during the hours that the store
was reopened.” The State argues that the defendant has waived consideration of this issue by
his failure to include it in his motion for new trial and that plain error review is not warranted
in the case. We agree with the State.

        Although the defendant objected to the introduction of the documents at trial, he failed
to include the issue in his motion for new trial. Issues relating to the admission or exclusion
of evidence that are not raised in a motion for new trial are deemed waived on appeal. See
Tenn. R. App. P. 3(e). Accordingly, we conclude that the defendant has waived consideration
of this issue on appeal. We also decline to address the issue as plain error, as we conclude
that no substantial rights of the defendant are affected by the alleged error.

                        IV. Alleged Improper Closing Arguments

        The defendant next contends that his constitutional rights were violated by the
prosecutor’s improper comments at closing, which, he asserts, were so egregious that they
warrant reversal of his convictions. He complains of three portions of closing argument. The
first occurred during the prosecutor’s initial closing argument:

              Now, [defense counsel] is a charming man. I’ll give him that. But all
       the charm in the world can’t negate the fact that [the defendant] was in that
       store. They’re trying – the Defense is trying to throw you off what you can see
       with your own eyes. They don’t want you to look. They don’t want you to use
       your common sense. I guess they think you can’t see, cause there is no doubt
       that that is [the defendant]. He knows it. The witnesses know it. [Defense
       counsel] knows it. But he wants to throw you off. Do not be deceived.

              The second and third occurred during the prosecutor’s rebuttal:

              [Defense counsel] also harped on the fact about there were no
       fingerprints. [Defense counsel] isn’t a fingerprint technician. He doesn’t know
       anything about what surfaces are best for recovering fingerprints. So he doesn’t
       know what he’s talking about.

        The third complained-of comments occurred as the prosecutor completed her argument
to the jury:

       [Defense counsel], he’s like a salesman trying to sell you something that he

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       knows isn’t good for you. Don’t buy it. He knows. [The defendant] knows.
       That’s why he’s laughing. He knows that that’s him on the video. And truth
       dictates and justice demands, ladies and gentlemen, that you find him guilty of
       both charges. Thank you.

       The defendant argues that the prosecutor, in the above-quoted portions of closing,
violated his right to a fair trial by impugning the veracity of both himself and his trial counsel.
He further argues that the comments were so flagrantly improper that the trial court should
have sua sponte intervened and issued curative instructions to the jury. The State responds
by arguing that the defendant has waived the issue by his failure to object at trial or to raise
the issue in his motion for new trial. The State further argues that the defendant cannot
demonstrate plain error. We, again, agree with the State.

        The failure to object to closing argument at trial waives our consideration of this issue
on appeal. See Tenn. R. App. P. 36(a) (providing that relief is not required for a party who
failed to take reasonably available action to prevent or nullify an error); State v. Stephenson,
195 S.W.3d 574, 601 (Tenn. 2006); State v. Thomas, 158 S.W.3d 361, 413 (Tenn. 2005);
State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (holding that the defendant’s
failure to object to the State’s alleged misconduct during closing argument waives that issue).
Thus, the defendant is not entitled to relief on appeal unless the remarks constitute “plain
error.” See Tenn. R. App. P. 36(b); State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000).

        In determining whether an alleged trial error constitutes “plain error,” we consider five
factors: (1) the record must clearly establish what occurred at trial; (2) a clear and
unequivocal rule of law must have been breached; (3) a substantial right of the defendant must
have been adversely affected; (4) the defendant did not waive the issue for tactical reasons;
and (5) consideration of the error is “necessary to do substantial justice.” See State v.
Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). Ultimately, the error must have
“had an unfair prejudicial impact which undermined the fundamental fairness of the trial.”
Id. at 642.

         Tennessee courts “have traditionally provided counsel with a wide latitude of
discretion in the content of their final argument” and trial judges with “wide discretion in
control of the argument.” State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). A
party’s closing argument “must be temperate, predicated on evidence introduced during the
trial, relevant to the issues being tried, and not otherwise improper under the facts or law.”
State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). The five generally recognized
areas of prosecutorial misconduct in closing argument occur when the prosecutor intentionally
misstates the evidence or misleads the jury on the inferences it may draw from the evidence;
expresses his or her personal opinion on the evidence or the defendant’s guilt; uses arguments

                                                -8-
calculated to inflame the passions or prejudices of the jury; diverts the jury from its duty to
decide the case on the evidence by injecting issues broader than the guilt or innocence of the
accused under the controlling law or by making predictions on the consequences of the jury’s
verdict; and intentionally refers to or argues facts outside the record, other than those which
are matters of common public knowledge. State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App.
2003).

        The defendant is unable to show that a clear and unequivocal rule of law was breached,
that a substantial right was affected, that he did not waive the issue for tactical reasons, or that
consideration of the issue is necessary to do substantial justice. We, therefore, conclude that
the defendant is not entitled to relief on the basis of this issue.

                                         V. Sentencing

       Lastly, the defendant contends that the trial court imposed an excessive sentence by
ignoring relevant mitigating factors, specifically, the fact that the defendant has suffered from
bipolar disorder since the age of ten. The State argues that the trial court properly imposed
sentences within the applicable range after considering the principles and guidelines of
sentencing. We agree with the State.

        When an accused challenges the length and manner of service of a sentence, it is the
duty of this court to conduct a de novo review on the record “with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code
Ann. § 40-35-401(d) (2010). This presumption is “conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant facts and
circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does
not apply to the legal conclusions reached by the trial court in sentencing the accused or to the
determinations made by the trial court which are predicated upon uncontroverted facts. State
v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929
(Tenn. Crim. App.1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993),
overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles
of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature
and characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statistical
information provided by the administrative office of the courts as to Tennessee sentencing
practices for similar offenses, (h) any statements made by the accused in his own behalf, and
(i) the accused’s potential or lack of potential for rehabilitation or treatment. Tenn. Code
Ann. §§ 40-35-103, -210 (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App.

                                                -9-
2001). The party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2010), Sentencing
Commission Cmts.; Ashby, 823 S.W.2d at 169.

       In imposing a specific sentence within a range, a trial court “shall consider, but is not
bound by” certain advisory sentencing guidelines, including that the “minimum sentence
within the range of punishment is the sentence that should be imposed” and that “[t]he
sentence length within the range should be adjusted, as appropriate, by the presence or
absence of mitigating and enhancement factors[.]” Tenn. Code Ann. § 40-35-210(c)(1), (2).
The weighing of the various mitigating and enhancement factors is “left to the trial court’s
sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008).

        We find no error in the trial court’s sentencing determinations. The only evidence of
the defendant’s mental illness consisted of the defendant’s self-reporting to the probation
officer who prepared his presentence report and his testimony at the sentencing hearing.
There was no independent verification of that diagnosis or evidence of how it affected the
defendant’s behavior. Moreover, the defendant’s presentence report reflects that the thirty-
six-year-old defendant has a lengthy criminal history that includes, by our count, over fifty
misdemeanor convictions for offenses such as theft, criminal trespassing, assault, vandalism,
and indecent exposure as well as a felony conviction for aggravated robbery. In addition, the
defendant, according to the prosecutor, also had a recent conviction for burglary of a building
that was not reflected in the presentence report. Therefore, based on our review, we conclude
that the trial court did not err in its application of enhancement or mitigating factors or in its
imposition of the effective sentence of seven years in the Department of Correction.

                                       CONCLUSION

         Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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