        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 3, 2015

                   JACKIE EWING v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Madison County
                       No. C-13-208    Donald H. Allen, Judge


                No. W2014-00273-CCA-R3-PC - Filed March 24, 2015


The petitioner, Jackie Ewing, was convicted of theft of property valued over $1000 and
sentenced as a career offender to twelve years. On direct appeal, this court affirmed the
petitioner’s conviction, and our supreme court denied permission to appeal. State v.
Jackie Ewing, No. W2012-00376-CCA-R3-CD, 2012 WL 6206123, at *1 (Tenn. Crim.
App. Dec. 11, 2012), perm. app. denied (Tenn. Apr. 9, 2013). Subsequently, he filed a
pro se petition for post-conviction relief, alleging he received the ineffective assistance of
counsel at trial. Counsel was appointed and, following an evidentiary hearing, the post-
conviction court denied the petition. Based upon our review, we affirm the judgment of
the post-conviction court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the Defendant-Appellant, Jackie Ewing.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; James G. Woodall, District Attorney General; and Shaun A. Brown,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       On direct appeal, this court set out the facts resulting in the petitioner’s conviction:
       This case arises from a theft of merchandise in a Sears store in
Jackson, Tennessee. A Madison County grand jury indicted the [petitioner]
for theft of property valued over $1,000.00. At the trial on these charges,
the parties presented the following evidence: David Presson, a Sears Loss
Prevention Manager, testified that he worked at the Sears store located in
the Old Hickory Mall in Jackson, Tennessee.

        Presson testified that, at around 9:30 p.m. on December 21, 2010,
while he was on his way home, store management notified him that a
“push-out theft” was in progress. Presson explained that a “push-out theft”
is a theft where an individual places merchandise in a shopping cart and
pushes the cart out of the store without paying for the items. Presson said
that the two suspects were not confronted that night, but, after returning to
the store that night, Presson took statements from various employees. The
following day, December 22, 2010, Presson viewed surveillance video
recordings.     Sears maintained fifty-two surveillance video cameras
throughout the store, which captured views from various angles and in
various areas of the store. Presson was able to confirm that a “push-out
theft” had occurred and contacted the Jackson Police Department. Presson
isolated the relevant video segments which captured the two suspects
entering the store, their progress throughout the store, and their exit from
the store. Presson made copies of this video footage and provided it to
police.

       Presson testified that, by working with a store employee well-versed
in the store stock and comparing the items placed in the shopping cart on
the video footage with the remaining items in that area of the store, he was
able to compile a list of the stolen items and the value of those items.
Presson said that a store employee identified the female suspect, but he also
said that he was not personally familiar with either suspect.

        Charles Chatman, a Sears employee, testified that he worked in the
tools department of the Sears store. On the night of December 21, 2010,
Chatman said he observed a man and a woman in the tools department. He
recognized the woman from Jackson State Community College where he
attended school. He said that she was a tutor for a math lab class. He then
identified the [petitioner] in court as the man he saw on the night of
December 21, 2010. Chatman watched the couple push their cart full of
items to the adjacent fitness department. When he did not see the couple



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return to the register to pay for the items, he went to the fitness department
and yelled out, “Did they pay for that?” The couple, however, had left at
the “perfect time” because the other sales associate who was in the fitness
department had his back to the exit. Chatman reported the incident to his
manager.

        Tiffany Baker, a Sears loss prevention associate, testified that,
before working in loss prevention at Sears, she worked in merchandising
and customer assistance. Baker said that, on December 22, 2010, she
watched surveillance video footage from the previous night and compared
items on the floor of the store with what she watched the shoplifters place
in the shopping cart on the video recording. She then compiled a list of
thirty-two items, all from the children’s, men’s, and tool departments, and
the value of each item. The total amount of the items stolen was $2,416.19.

        Baker testified that the department store did not recover any of the
stolen items. Baker then named each item and the individual value of that
item for the jury. The State played the video surveillance footage of the
[petitioner’s] progression through the department store on the night of
December 21, 2010. The video showed the [petitioner] selecting various
items from a rack or shelf while the co-defendant stayed with the shopping
cart. It also showed the [petitioner] and co-defendant exiting the store with
the unbagged items in the cart.

       On cross-examination, Baker testified that all merchandise sold in
the store is placed into a bag. If the item is too large, the bag is either
stapled or tied to the product to indicate the item has been purchased.
Baker said that the items inside the [petitioner’s] shopping cart as he exited
the store were not in store bags. Baker explained that the video
surveillance camera did not record the [petitioner] taking items in the tool
department but that, due to the location of one of the surveillance cameras,
personnel zoomed in on a frame of the [petitioner’s] shopping cart and
Baker was able to see the nailer kit taken from the tool department.

        Chekari Williamson, the co-defendant, testified that her charges
related to these crimes were pending. Williamson recalled that she and the
[petitioner] arrived at Sears at night on December 21, 2010. Williamson
said that the [petitioner] offered to pay her $20.00 if she would drive the
[petitioner] to Sears to buy gifts for his grandchildren. Williamson said that



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       she parked at the side entrance of Sears, and they both went inside the store.
       Williamson helped the [petitioner] pick clothes, and she placed them in a
       shopping cart. She estimated that they were inside Sears for approximately
       twenty to thirty minutes.

              Williamson testified that she told the [petitioner] she would pull her
       car around to the door. She was on her cellular phone as she exited the
       store and, when she ended her call, she realized that the [petitioner] was
       directly behind her and that he had not stopped to pay for his items. She
       said that she used “a few choice words,” and then told the [petitioner] that
       he was not getting in her car with “this stuff.” The [petitioner] told
       Williamson to “stop tripping” and said, “come on, let’s go.” Williamson
       said that she drove away leaving the [petitioner] in the parking lot with the
       items. Williamson said that none of the items in the shopping cart were in
       bags.

              Williamson identified herself and the [petitioner] in the video
       surveillance footage. Williamson said that she did not realize the items
       were being taken without payment until she and the [petitioner] were in the
       parking lot.

             On cross-examination, Williamson testified that she is employed at
       Jackson State Community College.

Id. at *1-3.

       At the December 17, 2013 evidentiary hearing, trial counsel testified that she
represented the petitioner from the city court level through trial. She met with the
petitioner several times to discuss strategy and said that his story about the theft changed
numerous times. She received a copy of the store’s videotape and reviewed it with the
petitioner. The tape clearly showed the petitioner, and the petitioner told counsel that it
was him on the tape, saying, “That’s me, but I didn’t take the items out of the store. I
rolled them out and I left them there because [the co-defendant] would not let me put
them in her car.” However, during the trial, the petitioner told counsel that the man in the
video was the co-defendant’s boyfriend.

       Trial counsel said that “[t]here wasn’t much defense that [she] could formulate
other than to try to show that the items perhaps were not over $1000.” She recalled that a
Sears employee testified at trial that the value of the stolen merchandise was $2488.57.



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Counsel tried to convince the jury that that amount was an inflated figure. The petitioner
wanted the co-defendant to testify even though she could identify him on the video
because “she was supposed to help him out.” Asked if there was anything she could have
done differently that would have changed the outcome of the petitioner’s case, counsel
responded, “No. Not with the evidence that the State had against [the petitioner].”

       The petitioner testified that he discussed his case with trial counsel several times.
He said he told counsel “from day one” that the man in the video was the co-defendant’s
boyfriend. He claimed that trial counsel should have attacked the co-defendant’s
credibility because she had a prior shoplifting charge. He also claimed that counsel
“didn’t get [his] point across that the theft was under $500 the way she should have.”
The petitioner said that if counsel “had investigated all of the evidence that was brought
before her in trial as far as the amount, . . . and she had objected to letting that be entered
into evidence that wouldn’t have ever been brought . . . to the point to where as the jury
would have looked at it and seen that.”

       As to his direct appeal, the petitioner claimed that appellate counsel did not read
the transcripts and, in preparing his brief, “just got something and threw it together.” He
said that appellate counsel did not present the facts from trial regarding the amount of the
stolen merchandise to the appellate court.

       Appellate counsel testified that he reviewed the trial transcripts and felt the only
issue he could raise on appeal was sufficiency of the evidence. He said he did not
address the value of the merchandise because it did not have any merit on appeal.

       At the conclusion of the hearing, the post-conviction court took the matter under
advisement and subsequently entered an order denying the petition and incorporating into
the order the court’s letter dated January 10, 2014, addressed to defense counsel and the
State.

                                            ANALYSIS

       The petitioner argues that trial counsel was ineffective because she did not
emphasize the value of the merchandise to the jury and “should have used her skills of
persuasion as a veteran lawyer to convince the jury that [the petitioner] was not in the
store videos.”

      The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary



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hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s
application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. In the context of a guilty plea, the petitioner must show a
reasonable probability that were it not for the deficiencies in counsel’s representation, he



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or she would not have pled guilty but would instead have insisted on proceeding to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn.
2001).

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

      In the denying the petition, the post-conviction court concluded:

             The evidence in this case shows that petitioner’s trial counsel was
      retained, beginning at the Jackson City Court preliminary hearing stage,
      that she had obtained full discovery from the State, and met with [the
      petitioner] several times prior to trial. [Trial counsel] reviewed the
      evidence, including the video surveillance evidence with her client in
      preparing for the trial. She testified that [the petitioner] admitted to her that
      he was in fact the male subject on the store’s security video, and that the
      female that was with him was his co-defendant, Ms. Chekari Williamson.

              The primary evidence in the case against [the petitioner] consisted of
      video surveillance from the Sear[s] store and the testimony from the store’s
      employees. Additionally, the co-defendant, Ms. Chekari Williamson,
      testified that [the petitioner] was the person that had exited the store with a
      shopping cart of merchandise that he had not paid for.

              The Court notes that the identification of the [petitioner] as the
      person who committed the crime is a question of fact for the trier of fact to
      determine. The jury, based upon the evidence presented at the trial, found
      beyond a reasonable doubt that the perpetrator of this theft was in fact the
      [petitioner]. This Court has reviewed the video evidence submitted to the
      jury in this case, and the Court finds that the jury’s determination as to the
      identity of the [petitioner] as the perpetrator of this theft is correct and
      certainly sufficient to support the conviction. [Trial counsel] further
      testified that she did not believe that the Court would have suppressed the
      video tape evidence, since there was no legal basis to do so.




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              The petitioner testified that his attorney was ineffective at trial for
       various reasons. He denied that it was him in the video, and claims that he
       never told his attorney that [it] was him. The Court does not credit his
       testimony when he states that “it was not him” in the Sear[s] store video.

              After a careful review of all the evidence in this case, the Court finds
       that none of trial counsel’s actions or omissions were so serious as to fall
       below the objective standard of reasonableness under prevailing
       professional norms. The Court finds that [trial counsel’s] representation
       was appropriate and that she provided [the petitioner] with reasonably
       effective assistance. The Court further finds that [the petitioner] has failed
       to show that there is a reasonable probability that, but for trial counsel’s
       performance, the result of the trial proceeding would have been different.

         We conclude that the record supports the post-conviction court’s finding that trial
counsel provided effective representation. Trial counsel testified that the petitioner
admitted to her that he was in the man in the videotape of the theft but, later during the
trial, told her that the man was actually his co-defendant’s boyfriend. The co-defendant
testified that the petitioner was the man in the video. Counsel recalled that a Sears
employee testified that the value of the stolen merchandise was $2488.57, and she tried to
convince the jury that that amount was an inflated figure. She said there was nothing she
could have done differently to change the outcome of the petitioner’s case based upon the
evidence the State had against him.

       In sum, the petitioner has failed to show that trial counsel was deficient in her
representation. We conclude, therefore, that the petitioner is not entitled to post-
conviction relief on the basis of his claim of ineffective assistance of counsel.

                                      CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.

                                                  _________________________________
                                                  ALAN E. GLENN, JUDGE




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