        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. W2014-02194-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 Criminal Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and ROGER A. PAGE, 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 Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

        This case arises from an 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 than $1000.
       At the trial, Otis Davis, a loss 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‟ sizes or prices. Mr. Davis stated that he called
his partner, Rose McKee, who posed as a shopper on the sales floor in order to observe
suspected shoplifters and followed them into areas not equipped with surveillance
cameras, such as the ladies‟ fitting rooms.

       An 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 various items from clothing racks. The woman carried
several pieces of clothing, a red and white shopping bag, and a purse. The woman
selected 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, several
minutes later, left carrying fewer pieces of clothing. The photographs were captured
from the recording and showed the woman and the clothing she carried.

      Mr. Davis testified that after the Defendant left the fitting room, Ms. McKee
examined the fitting room for 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 after 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 earrings, evening dresses, and blouses from the
bag. He said that the merchandise had a value of more than $800 and that the clothes
were still on hangers. Mr. Davis 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 itemized 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

                                            -2-
      valued at $888.50, without consent 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 reflected that the total value of the items was $888.50, 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 carrying 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 remembered 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 after 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.

                                           -3-
           Mr. Davis testified that the Defendant left Macy‟s with 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. Davis testified that the shopping mall exit of Macy‟s was equipped with
    surveillance cameras, that the direction of each camera was controlled by the camera
    operator, and that because he was on the sales floor and not in the control room, the
    cameras 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
    begging 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
    not have been accepted by the computer system. Mr. Davis denied giving the Defendant
    a blank statement of admission to sign and later filling in the list of items and denied
    telling the Defendant that she would be free to leave if she signed the statement of
    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. The 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 return to stock
record lists a price of $79.00, whereas the statement of admission lists 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.
                                                    -4-
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 sales 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 shopping
mall. He said that the computer system differentiated between items from Macy‟s that
had been purchased and items that had not been purchased. Mr. Davis stated that the
computer system did not identify the two pairs of earrings as having been purchased. He
clarified that the computer-generated report would have reflected 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 coerced
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 carrying 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 testified 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 the 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 arrested 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 computer-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.
                                          -5-
      Ms. McKee testified that the value of the items totaled $888.50 and that generally
loss prevention officers took photographs of the stolen items and returned the items to
stock. She said that the 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 the 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 shoplifting call at 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, he only recalled the evening 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 officers usually took photographs 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
                                           -6-
of the property was significant and that the Defendant 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 was 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 sufficiently established the value of the stolen items.

        In determining the sufficiency of the evidence, the standard of review 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 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 questions 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 crime 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 conviction is based upon direct 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
property, 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;
                                            -7-
       ...

       (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 scanning 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 value 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 value 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. She is not entitled to
relief on this basis.

       The Defendant contends 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, alternatively, that the State had no duty to preserve the clothing as evidence.
The Defendant 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 for 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 the 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
defendant 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 faced by a
defendant. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
                                             -8-
      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 available 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 system would have taken
into account sale prices. The 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 record as a whole, we affirm the
judgment of the trial court.



                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




                                            -9-
