        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   May 15, 2012 Session

                 STATE OF TENNESSEE v. EARNEST LANING

             Direct Appeal from the Criminal Court for Hamblen County
                      No. 10CR768      John Dugger, Jr., Judge


                 No. E2011-01882-CCA-R3-CD - Filed August 6, 2012


A Hamblen County Criminal Court Jury convicted the appellant, Earnest Laning, of driving
under the influence (DUI), second offense, and the trial court sentenced him to eleven
months, twenty-nine days to be served as 135 days in jail and the remainder on probation. On
appeal, the appellant contends that the trial court erred by allowing the State to introduce his
blood test result into evidence because the State failed to establish the chain of custody.
Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment
of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

Jonathan M. Holcomb, Morristown, Tennessee, for the appellant, Earnest Laning.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; C. Berkeley Bell, Jr., District Attorney General; and Kimberly Morrison,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                  I. Factual Background

       The appellant does not contest the sufficiency of the evidence. Taken in the light most
favorable to the State, the evidence shows that on the night of July 29, 2010, Officer Devin
Cribley of the Morristown Police Department stopped a car for crossing the white “fog line.”
Officer Cribley approached the car and spoke with the driver, who was the appellant. The
appellant had bloodshot eyes, had slurred speech, and smelled of alcohol. The appellant told
the officer that he was coming from the AMVETS Club and had consumed one-half of a
beer. Officer Cribley gave the appellant “pre-exit tests.” The appellant performed poorly
on the tests, so Officer Cribley had the appellant get out of the car and perform field sobriety
tests. Based on the appellant’s performance on the field sobriety tests, Officer Cribley
thought he was intoxicated and arrested him. The appellant agreed to submit to a blood test,
so Officer Cribley transported him to Morristown Hospital. The blood test revealed that the
appellant’s blood contained 0.22 gram percent of ethyl alcohol.

                                          II. Analysis

        The appellant contends that the trial court erred by allowing the State to introduce the
blood test result into evidence because the State failed to establish the chain of custody for
the evidence. The State argues that the trial court did not abuse its discretion by admitting
the test result. We agree with the State.

         At trial, Officer Cribley testified that the appellant agreed to submit to a blood test and
that he transported the appellant to the laboratory at Morristown Hospital. Officer Cribley
also took a blood kit to the hospital. He described the kit as a box that contained two blood
tubes, a bag, and a form to record the appellant’s personal information. Officer Cribley
watched the lab technician draw the appellant’s blood, put the blood tubes in the bag, and
seal the bag. The technician put the bag into the box and gave the box to the officer. Officer
Cribley filled out the form in the box. The form included the appellant’s name, address, date
of birth, and driver’s license information; the officer’s information; and the lab technician’s
information. Officer Cribley said he put the form in the box and sealed the box with a
“sticky flap on the bottom side of the box that folds over it.” He said he initialed and dated
the flap to indicate if someone opened the box, transported the appellant to jail, and put the
kit in the evidence refrigerator “that is under lock and key.” The State asked Officer Cribley
about the test result. The defense objected to the officer’s testifying about the result because
“[u]ntil an appropriate chain of custody is established we’ll never know how the box got
from his locked refrigerator to the lab.” The trial court sustained the objection.

        On cross-examination, Officer Cribley testified that the laboratory technician was a
phlebotomist and that “I think her name was Heather something. . . . I don’t ask them their
name. It’s on the form.” He was five or six feet away from the appellant and the technician
at the time of the blood draw. Initially, he said that the appellant’s blood kit was mailed to
the Tennessee Bureau of Investigation (TBI). However, he later said that he did not know
if the kit was mailed or hand-delivered to the TBI. Only one person, Ricky Sanders, was
authorized to remove evidence from the locked refrigerator and mail it to the TBI. Officer
Cribley said, “I can’t testify for sure he was the one that done it but he’s our evidence
custodian.”

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        Melanie Carlisle, a special agent forensic scientist for the TBI Knoxville Crime
Laboratory, testified that the kit in question arrived at the lab on August 13, 2010, at 4:30
p.m. She said the kit was received in the lab’s “drop box,” which was outside the evidence
windows “securely in our building.” The kit was not received in the mail. A forensic
technician would have taken the kit out of the drop box. Agent Carlisle said the kit “was in
a sealed condition and if there was any kind of tampering with the box itself, it would have
been noted in the case file.” The technician would have opened the kit and compared the
information on the blood tubes to the information on the form in the kit. The technician
would have assigned the same laboratory number to the form and the tubes and put the tubes
in the refrigerator.

        Agent Carlisle testified that she obtained the tubes from the technician on August 23,
2010. The tubes were labeled with the appellant’s name, date and time of the blood draw,
the initials “HH,” and the appellant’s date of birth. The form from the kit showed that Devin
Cribley was the requesting officer, that Ernest Ray Laning was the subject, and that Heather
Hall drew the blood. Agent Carlisle compared the information on the tubes to the
information on the appellant’s form. She said that blood tubes not opened previously had a
vacuum “so you can hear a suction come out of the tube when you open the lid.” Agent
Carlisle tested a tube of the appellant’s blood on August 24, 2010, and did not make a note
in her report to indicate that the vacuum had been lost from the tube. The State asked Agent
Carlisle about the test result, and the defense renewed its objection based on the lack of the
chain of custody. The trial court overruled the objection, stating that “the identity and
integrity of the evidence is reasonably assured.” Agent Carlisle testified that the appellant’s
blood contained 0.22 gram percent ethyl alcohol, almost three times higher than the legal
limit of 0.08 in Tennessee.

       On cross-examination, the defense asked Agent Carlisle if she would have been
concerned to learn that the kit reportedly was mailed to the TBI. She answered, “[O]ur chain
of custody begins when we get it, the way we received it, and the day we received it and who
we receive it from. . . . Anything before that, I really couldn’t answer to.”

       Generally, Tennessee Rule of Evidence 901 governs the authentication of evidence.
In order to admit physical evidence, the party offering the evidence must either introduce a
witness who is able to identify the evidence or establish an unbroken chain of custody. State
v. Holbrooks, 983 S.W.2d 697, 700 (Tenn. Crim. App. 1998). “Even though each link in the
chain of custody should be sufficiently established, this rule does not require that the identity
of tangible evidence be proven beyond all possibility of doubt; nor should the State be
required to establish facts which exclude every possibility of tampering.” State v. Cannon,
254 S.W.3d 287, 296 (Tenn. 2008). However, the circumstances must establish a reasonable
assurance of the identity of the evidence. State v. Kilburn, 782 S.W.2d 199, 203 (Tenn.

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Crim. App. 1989). “The purpose of the chain of custody is to ‘demonstrate that there has
been no tampering, loss, substitution, or mistake with respect to the evidence.’” State v.
Scott, 33 S.W.3d 746, 760 (Tenn. 2000) (quoting State v. Braden, 867 S.W.2d 750, 759
(Tenn. Crim. App. 1993)). Whether the required chain of custody has been sufficiently
established to justify the admission of evidence is a matter committed to the sound discretion
of the trial court, and the court’s determination will not be overturned in the absence of a
clearly mistaken exercise of that discretion. Holbrooks, 983 S.W.2d at 701.

        The State argues that the facts of this case are “strikingly similar” to the facts in State
v. Michael Joseph Arbuckle, No. M2000-02885-CCA-R3-CD, 2001 Tenn. Crim. App.
LEXIS 931 (Nashville, December 5, 2001). In Arbuckle, a police officer testified that he
witnessed the defendant’s blood being drawn, that he sealed the blood sample in a protective
box, and that he put the box in the police department’s evidence locker to be mailed to the
TBI. Id. at *7. An agent for the TBI testified about the procedure for receiving and
documenting blood samples and said any irregularities in the shipping or receiving of the
defendant’s blood sample would have been noted by the TBI. Id. The defendant claimed
that the State failed to establish the chain of custody for the sample because the hospital
employee who drew the blood and the TBI employee who received the blood did not testify.1
Id. at *6. However, the court noted that “the failure to call all of the witnesses who handled
the evidence does not necessarily preclude its admission into evidence.” Id. (citing State v.
Johnson, 673 S.W.2d 877, 881 (Tenn. Crim. App. 1984)). Moreover, there was no evidence
of tampering, loss, or substitution of the defendant’s sample. Id. at *7. Thus, this court
concluded that the trial court did not abuse its discretion by admitting the evidence because
“the State established the identity and integrity of the evidence through a sufficient chain of
custody.” Id. at *8.

       Turning to the instant case, Officer Cribley testified that he witnessed the
phlebotomist draw the appellant’s blood, put the blood tubes in the bag, seal the bag, and put
the bag into the box. Officer Cribley filled out the form in the blood kit, put the form in the
box with the blood tubes, and put a self-adhesive “flap” over the box. He dated and initialed
the flap on the box to indicate tampering and put the box into the locked evidence
refrigerator. He said that only the evidence custodian could remove evidence from the
refrigerator, and he did not know whether the kit was mailed or hand-delivered to the TBI.
Agent Carlisle testified that the kit was received in the TBI’s drop box. A technician would
have opened the box and would have noted in the case file if someone had tampered with the
box. Agent Carlisle inspected the blood tubes and the form in the box, and the labels on the
blood tubes corresponded to the form containing the appellant’s personal information. Agent


       1
        Although not raised by the defendant, there also is no indication from the facts that the police
department employee who mailed the sample testified.

                                                  -4-
Carlisle said that when she tested the appellant’s blood, the blood tube was still vacuum-
sealed, meaning it had not been opened. As in Arbuckle, there is no evidence of tampering
or irregularities with the appellant’s blood sample. Therefore, we agree with the trial court
that the State established a sufficient chain of custody to reasonably assure the blood
sample’s identity and integrity. The trial court did not abuse its discretion by admitting the
test result into evidence.

                                      III. Conclusion

      Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgments of the trial court.


                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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