### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M ay 14, 2003 STATE OF TENN ESSEE v. RICKY LY NN LITTRELL Appeal from the Circuit Court for Bedford County

No. 14840 Lee Russell, Judge

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

The defendant, Ricky

Ly nn Littrell, was convicted by a Be dford County Circuit Court jury of theft of prope rty valued m ore than $1,000 but less than $10,000, a Class D felony , and the trial court sentenced him as a career offender

to twelve yea

rs in the Department of Correction. In this delayed appeal, the defe

ndant cla ims that (1 ) the evi dence isinsuffic ient to sup port h is conviction; (2) the trial court erred by

allowing the stol en mercha ndise into evidence because a chain of c ustody had notbeen est

a blished; a

nd (3) the trial cou rt erre d by

allowing a list of th

e stolen me

rchandi se into evidence because

the testif yin g witne ss did

not properly authe

nticate the list pursuant to Rule 901, Tenn. R. E

vid. We af

firm the j udgmen

t of the tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OSEPH M. T IPTON , J., delivered the opinion of the court, in which D AV ID H. W ELLES and A LAN E. G LENN , JJ., joined.
Donna Leig h Harg rove, Di strict Publ

ic Defe nder; an d Michael J. Collins, As sistant Dis trict Publi c Defend er, for the appe llant, Ric ky L

ynn Littr ell.
Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; William Michael McCown, District Attorney Genera l; and Andrew Jackson Dearing, I II , Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION
This case re

lates to th e theft o f ink pensfrom Sanf ord Corpo ration. Neville C. Adolf

testified that in June 2000, he was Sanford’s Shipping Manager and responsible for Sanf ord’s shipment of products to retail stores. He said that he was very familiar with Sanfo

rd’s pro ducts and retail prices and that Sanford sold an d shipped a ll ty pes of wr iting inst ruments, including

mechani cal penc ils, highlight e rs, and ink pe

ns. He sa id that San

ford’s c ost for pr

oducing the ink pe

ns was re ferre d to as the “cost price” and that the price Sanford charged r

etail stores was ref

erred t o as the “ wholesa

le-2-

price.” He said

that when retail stores received Sanford’s pr oducts, they marke d up the prices th irty to forty perc ent 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 wi th dru g 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 te

lephoned Jim M etler at the Tony Rice Center a nd asked Mr. Metler to search the defendant’s and Mr. We stern’s rooms fo r Sanford products. He said that about ten minutes later, Mr. Me t ler 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 employ ee to prepare an inventory list of the recovered pens and that the pric e of the s tolen pen s ranged from $1 t o $60 eac

h. He sa id that some of

the more expensive pens were worth $40 to $60 each, that the total wholesale va lue of the stolen pens was $1,100 to $1,200, and that the total r

etail price of the pens would have been highe r. He said he put the stolen items into a

box, put the b ox into an empty cubicle at the distribution center, and told other employees to stay

away f rom it.
On cross-examination, Mr . Adolf testified that Sanford Corporation kept ink pe ns worth mor e than $15 in a security c age at the distribution center and that the defendant did not have access to the cage. He said that at the t ime of the the fts, the d efenda nt had wor

ked at San

ford for about six months and that

he had thought the defendant was a g ood employee. He said that after Mr. Metler found the stolen pens in the defendant’s and Mr. Western’s rooms, Mr. Metler putthe items into one bag and gave the bag to him. He said tha t he w as not present during Mr. Metler’s searc h of the rooms and that he did not actually se e stolen pens in the defendant’s roo m. He said th at Sanford routinely gave damaged a

nd discontinued pens to employees but that damaged or discontinued pens kept in the security c age were alway s 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 tha

t Sanford had employed re sidents before. He said that in June 2000, the defendant and Mr. Western were reside nts at the Cent er a nd that he receiv ed a tele

phone ca ll from someone at Sanfo rd. He said that as a result of the call, he suspected that the de fendant and Mr. Western had stolen ink pens worth $50 to $60 each and sea rched 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 materia l. He said he found about eighteen expensive pens in the defendant’s room under the defenda nt’s roommate’s bed. He sai d he telephoned Sanf

ord Corpo rati on 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 an d given the m to the defendant and Mr. Western. He sai d the defenda nt admitte d putting

the stolen

pens unde

r his roommate’s bed.-3-

J.B. Broadous, Sanford’s Distribution General Manager, testified that he oversaw Sanford’s daily operations and was familiar with Sanfo

rd’s pro ducts and prices. He said he asked L inda 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 re covered from Mr. Western’s and the defe ndant’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 employ ees had keys to the room. He said that he did not persona lly 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 inve ntory lists showe d 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 defen dant cont

ends that the evide nce is ins ufficie

nt to suppor

t his convi ction bec ause the state fa

il ed to prov e that t

he value of the ink pens found in his room was more than $1,000. Sp ecif ic al ly, he arg

ues that b ecause

Jim Metler pl aced the

pens found in his roo m into a ba g with the pens found in Mr. Western’s room, it was impossible to determine the value of the pens that were under the defe ndant’s c ontrol. He

argue s that bec ause

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 ag ree with the state.
Our standar d of revi ew when

the defe ndant que stions the suf

ficiency of

the evidence on appeal is “whether, aft er viewing the evidence in the light most favor able to the prosecution, any rational trier of

fact could have f

ound the e ssential e

lements of

the crime

bey ond a rea sonable doubt.” Jackson v. V

irginia , 443 U.S. 3 07, 319, 99S. Ct. 2781, 2789 (1979). We do not re weigh the evidenc e but pre sume that t he jury has reso lved all c onflicts i n the testimony and drawn all reasona ble inferences from the evidence in fa vor of the state. See State v. She ffield , 67 6 S.W.2d 542, 547 (Ten

n. 1984); Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Que stions about witness cr ed ib il it y we re re so lv ed by t he ju ry. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).
As charg ed in the i ndictmen t, a pers on commits theft of property “if, with intent to deprive the owner of property , the person knowingly

. . . exerc ises 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 thef

t of property va

lued more than $1,000 but less than $10,000. Although the defendant claims that he cannot be held responsible for the value of the pe ns found in Mr. Western’s room, we note that Jim Metler te stified a s follows: Q. All right. Did they sa y how they

came to be in possession of the pens?-4- A. Yes. They

told me that the pens were given to them by other employees that they

walked u p on goin g to thei

r car to come home. And so they g ave them the pens because the other employees had stolen them an d they we re give n to them so they wouldn’t talk.
We believe this testimony is sufficient to establish that the defend ant and Mr. Western exercised control over the pens together and that eac h was responsible for the total value of the thef t. 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 defe ndant’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 allowi ng the st a te to intro duce 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 contendsthat 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 cha in of custody

for the pens could not be establish

ed beca use Sanfo rd offic ials plac ed the pe

ns in a box and stored the box in a room that other employees could a

ccess. He argues that as a result, the pens “could have easily been replaced withmore expensive pens, or someone could have added more pens to the box.” The state cla ims that the trial court properly admitted the pens into evidence. We agree with the state.
In determining the admissibility of tangi ble evidence, it is sufficient if the evidence establishes a reasonable assurance of the identity of the evidenc e. 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 concer ning the sufficie ncy of evide nce as to the chai n 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 r equested that a box containing the ink pens found in the defendant’s and M r. Western’ s rooms be admitted into evidence. The defendant objected , claiming

that the st

ate had f ailed to show that the

box contained the sa

me pens th at Mr

. Metler fo un d a t t he To ny R ice C enter. The trial court overruled the objection, stating that the defense could cr oss-examine Mr. Ado lf about th e chain o f custody

for the p ens. We believe

the trial court pr operly 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 pe ns into o ne bag an d gave the bag to Neville Adolf. Gi ven that w e conclu ded in the section above that the defendant was accountable for all of the ink

pens found in his and

Mr. Wester

n’s rooms , there i s no merit t o his claim tha

t the cha in of custody was “c ontaminated” by Mr. Metler’s placing all of the ink pens into o ne bag . Mr. Adol f-5-

had another Sanford empl oyee invento ry the pens a

nd prepa re a list s howing e ach pen and its wholesale value. According to Mr. Adolf, the pe ns then were placed in a box, thebox was stored in an empty cubicle

at the Sanford distribution center, and Sanford employee s 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 d istri butio n cen

ter s ince June 2 000. W e note that J.B. Broadous later testified that sometime before trial, the box of pens was reinventoried and the total whol esale

value of the items on the second inventory list matched the total wholesale value of the items on the June 2000 lis t, indica ting tha t no one ha

d tamper ed with the rec overed ink pens. We conclude that the trial court properly admitted the ink pens into evidence.
III. INVEN TORY LIST
Fi na ll y, the defendant claims that the trialcourt erred by allowing the state to introduce the second inventory list i nto evidenc e because J. B. Broadous could not authe nticate t he list. The state claims that the trial court properly admitted the list into evidence. We agree with the state.
J.B. Broadous testifi ed that in June 2000, a Sanford employee inve ntoried the pens found in Kenneth Western’s andthe defendant’s rooms and prepared a n inventory list. He also testified that sometime before trial, the bo x of ink pens was reinventoried, a second list was prepared, a nd 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 s econd inventory list and the f ollowing exchange occurred:

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

our direction?
A. Yes, it is. Q. And have you

seen and verifie d that, in f

act that i s an accurate inventory of the c ontents of Exhibit No. 1?
A. Co rr ec t, I di d s po t c he ck an d v er if y.

. . . . The state then aske d that the

trial cou rt admit the second

inventor y lis t into evide

nce, an d the def

ense objectedon the grounds that Mr. Broadous had not prepa red the list an d was not the custodian of Sanford’s records. The tria l court asked the state to question Mr. Broadous further a bout the inventor y lis t, and Mr. Broadous’s testi mony continue d as follo ws: Q. Did

this inventory that y

ou had prepared , we re you pre sent when that was being done?-6- A. I wa s not physically present when it was being done. I di d leave specific instructions on how to inventory a s we ll as what are as to conf

irm the actual pric es. THE COURT: All

right. Then I need to know what he means by spot ch eckin g. A. I checked one or two items on the list, [confirmed] the quantity in the bo x as well as the price listed in the newer process ing sy stem. Q. I noticed in the left-hand corner that there is a lo ng column. It looks like five- digit n umbers. D o yo u recognize those numbers?
A. Correct , those are our product numbers we use in identify ing th e i te ms in ou r f ac il it y. Q. Do y ou recog

nize those

as Sanfor

d produc t numbers ?
A. Yes, they ar

e. Q. And the prices which I re alize are numerous differe

nt price s, butdo you re cognize those as being Sanford prices tha t you particularly se

ll these products for?
A. Yes, the

y a re. Thos e are ou

r standa rd price s. The defense then questioned Mr. Broadous about th e list. Mr. Broadous testified that he did not have the June 2000 inventory list and that he di d not chec

k every item on the

second li st. The trial court overruled the defendant’s objection and allowed t

he state to introdu ce the second inve ntory list into evidence.
The defendant

claims tha

t the inve ntory list was inadmissible pursuant to Rule 901(a), Tenn. R. Evid., because Mr. Broadous had no persona l knowledge about

the co ntents of the list and, therefore, could

not authe nticate i t. In s upport of

his argument, he

points out that Mr . Broad us 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 authe ntication or identific atio n as a condition precedent to admissibility is satisfied by evidenc e suffic ient to the court to s upport a finding by the trier of

fact tha t the matte

r in quest ion is what

its proponent claims.” Authentication can be estab lished th

rough the testim

ony of a witne ss with know ledge “ that a mat ter is wha t it is-7-

claimed to be.” Tenn. R. Evid. 901(b)(1). The admis sion of de monstrati ve evide

nce is within the discretion of the trial court. State v. We st , 767 S.W.2d 387, 402 (Tenn. 1989). We believe that Mr. Broadous authenticated the inventory list. Mr. Broadous identified the list and testif ied 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 n

umber an d wholesa

le price for each stolen pen. He said that he was fa miliar with Sanford’s prices and product numbers and that the p

rices a nd produc t numbers on the list were S anford’ s prices and prod uct numbe

rs. 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 w

holesale value of the stolen

ink pens. M

r. Adolf a

nd Mr. Br

oadous bo th testified that the total wholesale value of the pe ns was over $1,000. Thus, any err or would be harmless because the witnesses’ testimony was sufficient to establish the pens’ value.
Based upon the foregoingand the rec ord as a w hole, we affirm t he judg ment of the

trial cou rt.

___________________________________ JOSEPH M. TIPTON, JUDGE