         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 9, 2002

              STATE OF TENNESSEE v. ALLEN JEAN STEPHENS

                      Appeal from the Circuit Court for Weakley County
                        No. CR119-2000      William B. Acree, Judge



                     No. W2001-01351-CCA-R3-CD - Filed June 20, 2002


Allen Jean Stephens appeals from his Weakley County Circuit Court conviction of Class D felony
theft of property. Stephens claims in this appeal that the lower court erred in admitting the telephone
records of the business that the defendant defrauded in the course of committing his crime. Because
we hold that these records were erroneously but harmlessly admitted, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
DAVID G. HAYES, JJ., joined.

Colin Johnson, Dresden, Tennessee (at trial), and David L. Hamblen, Union City, Tennessee (on
appeal), for the Appellant, Allen Jean Stephens.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Thomas
A. Thomas, District Attorney General; and Allen Strawbridge, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION

                The defendant’s conviction arises from the theft of speciality tires and wheels for his
sport utility vehicle. The evidence at trial demonstrated that a phone call was placed from the
defendant’s telephone in Martin, Tennessee to Custom Wheels Distributors, Inc. in Oklahoma City,
Oklahoma for the purpose of ordering the tires and wheels. The caller used a stolen credit card
number and gave a false identity. The caller asked that the items be shipped to Melvin Munden. The
defendant’s wife is Mr. Munden’s girlfriend’s sister. Additional calls were made from the
defendant’s residence to Custom Wheels prior to delivery of the tires and wheels.

                The tires and wheels were delivered to Mr. Munden’s residence, and the shipment
was signed for by someone using the name Tom West. An individual whose prior testimony was
read into the record by the defense claimed that Mr. Munden was present when a UPS delivery was
made at Mr. Munden’s residence, and the defendant was not present. This witness did not see
whether Mr. Munden signed for the delivery. Although the witness did not know what was
delivered, he did see some tires in plastic.

                  By all accounts, the defendant had the tires and wheels installed on his Chevrolet
Tahoe by Reynolds Brothers Tire Company in Martin. Mr. Munden transported the tires and wheels
to the tire store in his truck. The manager of the store testified that the defendant said he ordered the
items from a magazine and paid $5,000 for them.

               After learning of the fraudulent credit card transaction from a representative of
Custom Wheels, Lieutenant Tommy Erwin of the Martin Police Department identified the defendant
as a suspect because he recognized the distinctive tires and wheels on the defendant’s late-model
Chevrolet Tahoe as matching those in a photograph Custom Wheels provided to Lieutenant Erwin.
The tires and wheels were so distinctive that Lieutenant Erwin testified he had never seen others like
them. He interviewed the defendant about the tires and wheels. The defendant first claimed that
he bought them in Florida for $2,700. He later recanted that story and said that he had purchased
them for $1,200 from Mr. Munden.

                 The tires and wheels were specialty items which fit the defendant’s vehicle. The
purchase price from Custom Wheels was $3,200, and they had a retail value of approximately
$5,000. Mr. Munden owned a 1970 Ford pickup truck on which the tires and wheels would not have
fit, and further, they far exceeded the value of the Ford truck itself.

                The sole issue raised on direct appeal is whether the trial court properly admitted a
telephone bill listing telephone calls made from the defendant’s residence in Martin, Tennessee to
Custom Wheels in Oklahoma City, Oklahoma. This document was admitted via the testimony of
Matt Knowles, a part-owner of Custom Wheels. The defendant claims that Mr. Knowles was not
a proper witness to sponsor these records under Tennessee Rule of Evidence 803(6), while the state
claims he was.

                 Rule 803(6) provides that notwithstanding its hearsay character, “Records of
Regularly Conducted Activity” may be admitted. Tenn. R. Evid. 803(6). At the time of the trial in
this case, that rule allowed admission of

        [a] memorandum, report, record, or data compilation, in any form, of acts, events,
        conditions, opinions, or diagnoses made at or near the time by or from information
        transmitted by a person with knowledge and a business duty to record or transmit if
        kept in the course of a regularly conducted business activity and if it was the regular
        practice of that business activity to make the memorandum, report, record, or data
        compilation, all as shown by the testimony of the custodian or other qualified
        witness, unless the source of information or the method or circumstances of
        preparation indicate lack of trustworthiness. The term "business" as used on this


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       paragraph includes business, institution, profession, occupation, and calling of every
       kind, whether or not conducted for profit.

Tenn. R. Evid. 803(6) (amended 2001). The rationale underlying this rule is that business records
are inherently trustworthy and reliable and should be afforded admissibility without the necessity
of calling several witnesses involved in the generation and maintenance of such records. Alexander
v. Inman, 903 S.W.2d 686, 700 (Tenn. Ct. App. 1995).

                In order for documents to be admissible under Rule 803(6), they must meet five
criteria. Id. First, they must be made at or near the time of the recorded event; second, the person
who is the source of the recorded information must have firsthand knowledge of the matters
recorded; third, that individual must have a business duty to record the information; fourth, the
business entity involved must customarily generate such documents; fifth, the methodology involved
in providing the information or preparing the documents must not indicate untrustworthiness. Id.
Furthermore, the evidentiary foundation for admission of the records must be provided by a
"custodian or other qualified witness." Tenn. R. Evid. 803(6).

                In this case, Matt Knowles testified that his business, Custom Wheels Distributors,
Inc., is a wholesale distributor for a manufacturer. The manufacturer advertises in magazines, and
these advertisements offer a toll-free telephone number for ordering. When a customer calls the toll-
free number, the call is routed to Custom Wheels, which pays a monthly fee based upon the calls so
routed. Custom Wheels receives a monthly bill for the total charge for all calls, although it may
request an itemized statement. It made such a request for the time period pertinent to this case. Mr.
Knowles testified about the contents of the itemized telephone bill, which reflected calls from the
defendant’s telephone number to the toll-free number. A copy of the bill itself was also offered as
evidence.

                The state in this case failed to lay a proper evidentiary foundation for admission of
the telephone records. Mr. Knowles did not testify that the bill was created contemporaneously with
the occurrence of the telephone calls listed thereon. Although he had firsthand knowledge that he
had received certain telephone calls, he had no firsthand knowledge that the calls came from the
location reflected on the bill. He did not testify that he had a business duty to record the information
reflected on the bills; it is virtually certain from the evidence presented that he did not. Custom
Wheels was not under a business duty to generate its telephone bill, nor is there any evidence that
it actually did so. Further, Mr. Knowles gave no testimony about the methodology by which the
information was provided and the bill generated so that its trustworthiness could be evaluated. Thus,




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admission of the telephone bill as a record of regularly conducted activity was error.1 See Tenn. R.
Evid. 803(6).

               The question that remains, then, is that of the effect of this error. The defendant, of
course, maintains that the error was harmful, while the state argues, predictably, that any error was
harmless. Upon consideration, we agree with the state.

                The tires and wheels in question were purchased with a stolen credit card number.
The purchaser had the items shipped to Melvin Munden’s home, and an unknown person using the
identity “Tom West” signed for the delivery. Mr. Munden and the defendant are known to each
other, and the former’s girlfriend is the sister of the latter’s wife. At trial, the defendant claimed that
Mr. Munden, apparently unilaterally, ordered the tires and wheels and then sold them to the
defendant at far less than their market value. The defendant acknowledged that he knew the tires
and wheels were worth much more than the $1,200 he allegedly paid for them.

                 There was also evidence that the tires and wheels were high-dollar, specialty items
that fit the defendant’s late-model Chevrolet vehicle but not Mr. Munden’s older, lower-value Ford
truck. The defendant told Mr. Munden that he had ordered the items and had them shipped to Mr.
Munden’s house. Mr. Munden denied that he had been the one who ordered the tires and wheels,
and he denied selling them to the defendant. The defendant told an employee of the tire store where
he had the tires and wheels installed on his vehicle that he had ordered them from a magazine and
had paid $5,000 for them. When the defendant was questioned by the authorities, he initially
claimed to have purchased the tires and wheels at a store in Florida for $2,700. Upon further
questioning, he then claimed to have purchased the tires and wheels from Mr. Munden for $1,200.

               Given the defendant’s pre-trial admissions to multiple parties that he was the
individual who purchased the tires and wheels, any error in the admission of the telephone records
showing calls originating from the defendant’s telephone was harmless. Accordingly, we affirm the
defendant’s conviction.

         1
            Although not raised by the parties, we have also considered whether this evidence was not hearsay and
admissib le as a self-generated comp uter recor d. See gen erally State v. Hall , 976 S.W.2d 121, 146-47 (Tenn. Crim. App.
1998) (appen dix); State v. Meeks, 867 S.W.2 d 361, 374 -76 (Tenn . Crim. App . 1993). The lea ding case in this regard
is State v. Meeks. In Meeks, the state sought to introduce a computer printout from the telephon e comp any sho wing ca lls
traced from the victim’s tele phone numb er. Meeks, 867 S.W.2d at 374-75. The state offered evidence that the
automated metho d by w hich this info rmation was gen erated w as highly reliable. Id. The defendant alleged that this
evidence was inad missible h earsay tha t did not qu alify for the business recor d excep tion of Ru le 803(6 ). Id. at 375.
Relying on a “leading case” from another jurisdiction, the court considered the printout in question to be the computer’s
self-generated record o f its operations, rather than hearsay human declarations stored in the computer and later retrieved.
Id. (citing Louisiana v. Armstead, 432 So . 2d 837 , 839-40 (L a. 1983)). Thus, the touchstone of admissibility is the
reliability of the com puter syste m as reg ards func tioning an d accura cy. Id. In M eeks, the eviden ce was p roperly
admitted. See Meeks, 867 S.W .2d at 376 ; see also H all, 976 S.W.2 d at 146-47. In the case under consideration,
however, there is no evidence about the reliability of the computer system that purportedly recorded the originating
telephone numb ers of the ca lls to the toll-free number. Thus, we cannot justify the lower court’s admission of the
records on this alternative basis.

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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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