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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 -2-

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 -3-

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.

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