         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs May 14, 2003

              STATE OF TENNESSEE v. RICKY LYNN LITTRELL

                       Appeal from the Circuit Court for Bedford County
                                No. 14840   Lee Russell, Judge



                    No. M2002-01298-CCA-R3-CD - Filed August 27, 2003


The defendant, Ricky Lynn Littrell, was convicted by a Bedford County Circuit Court jury of theft
of property valued more than $1,000 but less than $10,000, a Class D felony, and the trial court
sentenced him as a career offender to twelve years in the Department of Correction. In this delayed
appeal, the defendant claims that (1) the evidence is insufficient to support his conviction; (2) the
trial court erred by allowing the stolen merchandise into evidence because a chain of custody had
not been established; and (3) the trial court erred by allowing a list of the stolen merchandise into
evidence because the testifying witness did not properly authenticate the list pursuant to Rule 901,
Tenn. R. Evid. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.
GLENN, JJ., joined.

Donna Leigh Hargrove, District Public Defender; and Michael J. Collins, Assistant District Public
Defender, for the appellant, Ricky Lynn Littrell.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
William Michael McCown, District Attorney General; and Andrew Jackson Dearing, III, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

         This case relates to the theft of ink pens from Sanford Corporation. Neville C. Adolf testified
that in June 2000, he was Sanford’s Shipping Manager and responsible for Sanford’s shipment of
products to retail stores. He said that he was very familiar with Sanford’s products and retail prices
and that Sanford sold and shipped all types of writing instruments, including mechanical pencils,
highlighters, and ink pens. He said that Sanford’s cost for producing the ink pens was referred to
as the “cost price” and that the price Sanford charged retail stores was referred to as the “wholesale
price.” He said that when retail stores received Sanford’s products, they marked up the prices thirty
to forty percent and sold the products to customers.

        Mr. Adolf testified that in 2000, the defendant and Kenneth Western lived at the Tony Rice
Center, a halfway house for people with drug and alcohol problems, and worked part-time for
Sanford’s distribution center in Bedford County. He said that on June 22, 2000, a man from the
Tony Rice Center told him that the defendant and Mr. Western had stolen property from Sanford.
He said he telephoned Jim Metler at the Tony Rice Center and asked Mr. Metler to search the
defendant’s and Mr. Western’s rooms for Sanford products. He said that about ten minutes later,
Mr. Metler telephoned and told him that ink pens had been found in the rooms. He said that he
telephoned the police and met them at the Tony Rice Center. He said that he verified the ink pens
belonged to Sanford Corporation and that he took the stolen pens back to the distribution center. He
said that he asked another Sanford employee to prepare an inventory list of the recovered pens and
that the price of the stolen pens ranged from $1 to $60 each. He said that some of the more
expensive pens were worth $40 to $60 each, that the total wholesale value of the stolen pens was
$1,100 to $1,200, and that the total retail price of the pens would have been higher. He said he put
the stolen items into a box, put the box into an empty cubicle at the distribution center, and told other
employees to stay away from it.

        On cross-examination, Mr. Adolf testified that Sanford Corporation kept ink pens worth more
than $15 in a security cage at the distribution center and that the defendant did not have access to the
cage. He said that at the time of the thefts, the defendant had worked at Sanford for about six
months and that he had thought the defendant was a good employee. He said that after Mr. Metler
found the stolen pens in the defendant’s and Mr. Western’s rooms, Mr. Metler put the items into one
bag and gave the bag to him. He said that he was not present during Mr. Metler’s search of the
rooms and that he did not actually see stolen pens in the defendant’s room. He said that Sanford
routinely gave damaged and discontinued pens to employees but that damaged or discontinued pens
kept in the security cage were always returned to the manufacturer.

       Jim Metler, the Director for the Tony Rice Center, testified that residents of the Center were
required to be employed and that Sanford had employed residents before. He said that in June 2000,
the defendant and Mr. Western were residents at the Center and that he received a telephone call
from someone at Sanford. He said that as a result of the call, he suspected that the defendant and
Mr. Western had stolen ink pens worth $50 to $60 each and searched the defendant’s and Mr.
Western’s rooms. He said that he found eight or nine of the expensive ink pens in a black bag in Mr.
Western’s closet and that the pens were still wrapped in packing material. He said he found about
eighteen expensive pens in the defendant’s room under the defendant’s roommate’s bed. He said
he telephoned Sanford Corporation and returned the ink pens. He said that the next day, he
discharged Mr. Western and the defendant from the Tony Rice Center. He said the men denied
taking the pens but told him that other employees had stolen the pens and given them to the
defendant and Mr. Western. He said the defendant admitted putting the stolen pens under his
roommate’s bed.



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        J.B. Broadous, Sanford’s Distribution General Manager, testified that he oversaw Sanford’s
daily operations and was familiar with Sanford’s products and prices. He said he asked Linda Black,
Sanford’s Inventory Control Coordinator, to inventory and make a list of the recovered items. He
said that after Ms. Black prepared the list, he “spot [checked]” it to make sure it was accurate. He
said that the total wholesale value of the pens recovered from Mr. Western’s and the defendant’s
rooms was $1,189.11. On cross-examination, Mr. Broadous testified that after Mr. Metler returned
the stolen pens to Sanford, the pens were kept in a sealed box in a training room. He said that the
room was secure but that six or seven employees had keys to the room. He said that he did not
personally inventory the stolen items. He said that the stolen items were inventoried twice, once in
June 2000 and more recently for trial. He said that the old and new inventory lists showed the same
items and the same wholesale values. The jury found the defendant guilty of theft of property valued
more than $1,000 but less than $10,000.

                           I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends that the evidence is insufficient to support his conviction because
the state failed to prove that the value of the ink pens found in his room was more than $1,000.
Specifically, he argues that because Jim Metler placed the pens found in his room into a bag with
the pens found in Mr. Western’s room, it was impossible to determine the value of the pens that were
under the defendant’s control. He argues that because the state did not prove the value of the pens
found in his room, the evidence only supports a misdemeanor conviction for theft of property valued
less than $500. The state claims that the evidence is sufficient. We agree with the state.

        Our standard of review when the defendant questions the sufficiency of the evidence on
appeal 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, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       As charged in the indictment, a person commits theft of property “if, with intent to deprive
the owner of property, the person knowingly . . . exercises control over the property without the
owner’s effective consent.” Tenn. Code Ann. § 39-14-103. In this case, the evidence shows that the
defendant is guilty of theft of property valued more than $1,000 but less than $10,000. Although the
defendant claims that he cannot be held responsible for the value of the pens found in Mr. Western’s
room, we note that Jim Metler testified as follows:

               Q.      All right. Did they say how they came to be in possession of
                       the pens?




                                                -3-
               A.      Yes. They told me that the pens were given to them by other
                       employees that they walked up on going to their car to come
                       home. And so they gave them the pens because the other
                       employees had stolen them and they were given to them so
                       they wouldn’t talk.

We believe this testimony is sufficient to establish that the defendant and Mr. Western exercised
control over the pens together and that each was responsible for the total value of the theft. Neville
Adolf and J.B. Broadous testified that they were familiar with the value of Sanford’s ink pens and
that the pens recovered from the defendant’s and Mr. Western’s rooms had a wholesale value over
$1,000. Thus, the evidence is sufficient to support the defendant’s conviction.

                                    II. CHAIN OF CUSTODY

        Next, the defendant claims that the trial court erred by allowing the state to introduce into
evidence the ink pens found in the defendant’s and Mr. Western’s rooms because the state had not
established a chain of custody for the pens. He contends that the chain of custody for the pens was
“contaminated” when Jim Metler mixed the pens he found in the defendant’s room with the pens he
found in Mr. Western’s room. In addition, he claims that a chain of custody for the pens could not
be established because Sanford officials placed the pens in a box and stored the box in a room that
other employees could access. He argues that as a result, the pens “could have easily been replaced
with more expensive pens, or someone could have added more pens to the box.” The state claims
that the trial court properly admitted the pens into evidence. We agree with the state.

        In determining the admissibility of tangible evidence, it is sufficient if the evidence
establishes a reasonable assurance of the identity of the evidence. State v. Woods, 806 S.W.2d 205,
212 (Tenn. Crim. App. 1990). Absent a clear mistake or abuse of discretion, the decision of the trial
court concerning the sufficiency of evidence as to the chain of custody will not be disturbed. Wade
v. State, 529 S.W.2d 739, 742 (Tenn. Crim. App. 1975); State v. Goodman, 643 S.W.2d 375, 381
(Tenn. Crim. App. 1982).

       During Neville Adolf’s testimony, the state requested that a box containing the ink pens
found in the defendant’s and Mr. Western’s rooms be admitted into evidence. The defendant
objected, claiming that the state had failed to show that the box contained the same pens that Mr.
Metler found at the Tony Rice Center. The trial court overruled the objection, stating that the
defense could cross-examine Mr. Adolf about the chain of custody for the pens.

         We believe the trial court properly admitted the ink pens into evidence. Jim Metler testified
that he found eight or nine expensive ink pens in Mr. Western’s room and about eighteen expensive
pens in the defendant’s room. He then placed all of the pens into one bag and gave the bag to
Neville Adolf. Given that we concluded in the section above that the defendant was accountable for
all of the ink pens found in his and Mr. Western’s rooms, there is no merit to his claim that the chain
of custody was “contaminated” by Mr. Metler’s placing all of the ink pens into one bag. Mr. Adolf


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had another Sanford employee inventory the pens and prepare a list showing each pen and its
wholesale value. According to Mr. Adolf, the pens then were placed in a box, the box was stored
in an empty cubicle at the Sanford distribution center, and Sanford employees were instructed to stay
away from the box. During Mr. Adolf’s testimony, the state showed him a box of ink pens, and he
identified it as the same box that had been stored at the distribution center since June 2000. We note
that J.B. Broadous later testified that sometime before trial, the box of pens was reinventoried and
the total wholesale value of the items on the second inventory list matched the total wholesale value
of the items on the June 2000 list, indicating that no one had tampered with the recovered ink pens.
We conclude that the trial court properly admitted the ink pens into evidence.

                                     III. INVENTORY LIST

       Finally, the defendant claims that the trial court erred by allowing the state to introduce the
second inventory list into evidence because J.B. Broadous could not authenticate the list. The state
claims that the trial court properly admitted the list into evidence. We agree with the state.

       J.B. Broadous testified that in June 2000, a Sanford employee inventoried the pens found in
Kenneth Western’s and the defendant’s rooms and prepared an inventory list. He also testified that
sometime before trial, the box of ink pens was reinventoried, a second list was prepared, and the
items and wholesale prices on the second list matched the items and wholesale prices on the June
2000 list. The state showed Mr. Broadous a copy of the second inventory list and the following
exchange occurred:

               Q.      Is that a copy of the inventory of the box that’s Exhibit 1 that
                       was prepared at your direction?

               A.      Yes, it is.

               Q.      And have you seen and verified that, in fact that is an accurate
                       inventory of the contents of Exhibit No. 1?

               A.      Correct, I did spot check and verify.

               ....

The state then asked that the trial court admit the second inventory list into evidence, and the defense
objected on the grounds that Mr. Broadous had not prepared the list and was not the custodian of
Sanford’s records. The trial court asked the state to question Mr. Broadous further about the
inventory list, and Mr. Broadous’s testimony continued as follows:

                Q.      Did this inventory that you had prepared, were you present
                        when that was being done?



                                                  -5-
               A.      I was not physically present when it was being done. I did
                       leave specific instructions on how to inventory as well as
                       what areas to confirm the actual prices.

                       THE COURT: All right. Then I need to know what he means
               by spot checking.

               A.      I checked one or two items on the list, [confirmed] the
                       quantity in the box as well as the price listed in the newer
                       processing system.

               Q.      I noticed in the left-hand corner that there is a long column.
                       It looks like five-digit numbers. Do you recognize those
                       numbers?

               A.      Correct, those are our product numbers we use in identifying
                       the items in our facility.

               Q.      Do you recognize those as Sanford product numbers?

               A.      Yes, they are.

               Q.      And the prices which I realize are numerous different prices,
                       but do you recognize those as being Sanford prices that you
                       particularly sell these products for?

               A.      Yes, they are. Those are our standard prices.

The defense then questioned Mr. Broadous about the list. Mr. Broadous testified that he did not have
the June 2000 inventory list and that he did not check every item on the second list. The trial court
overruled the defendant’s objection and allowed the state to introduce the second inventory list into
evidence.

        The defendant claims that the inventory list was inadmissible pursuant to Rule 901(a), Tenn.
R. Evid., because Mr. Broadous had no personal knowledge about the contents of the list and,
therefore, could not authenticate it. In support of his argument, he points out that Mr. Broadus did
not prepare the list and only checked the accuracy of one or two items on the list.

        Rule 901(a), Tenn. R. Evid., provides that the “requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to the court to support a
finding by the trier of fact that the matter in question is what its proponent claims.” Authentication
can be established through the testimony of a witness with knowledge “that a matter is what it is



                                                 -6-
claimed to be.” Tenn. R. Evid. 901(b)(1). The admission of demonstrative evidence is within the
discretion of the trial court. State v. West, 767 S.W.2d 387, 402 (Tenn. 1989).

         We believe that Mr. Broadous authenticated the inventory list. Mr. Broadous identified the
list and testified that it contained every Sanford item that was recovered from the defendant’s and
Mr. Western’s rooms. In addition, he stated that the list showed a product number and wholesale
price for each stolen pen. He said that he was familiar with Sanford’s prices and product numbers
and that the prices and product numbers on the list were Sanford’s prices and product numbers.
Although Mr. Broadous did not prepare the list himself, he directed an employee to prepare it and
he checked the list briefly for accuracy. In light of Mr. Broadous’s testimony, we conclude that the
trial court properly admitted the inventory list into evidence. In any event, the purpose of the list was
to illustrate the total wholesale value of the stolen ink pens. Mr. Adolf and Mr. Broadous both
testified that the total wholesale value of the pens was over $1,000. Thus, any error would be
harmless because the witnesses’ testimony was sufficient to establish the pens’ value.

        Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.




                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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