State of Tennessee v. Jerry L. Dismukes

12/11/2023

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 25, 2023

STATE OF TENNESSEE v. JERRY L. DISMUKES

Appeal from the Criminal Court for Knox County

No. 117603 G. Scott Green, Judge

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No. E2022-01517-CCA-R3-CD

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A Knox County jury convicted Defendant, Jerry L. Dismukes, of possession of more than

fifteen grams of heroin with intent to sell or deliver; possession of less than 200 grams of

fentanyl with intent to sell or deliver; possession of more than twenty-six grams of a

substance containing cocaine with intent to sell or deliver; and possession of drug

paraphernalia. On appeal, Defendant argues that the trial court provided the improper

remedy when it modified one of his convictions to a lesser offense after the jury’s verdict.

Defendant also argues that there was insufficient evidence to prove an unbroken chain of

custody. The State argues that Defendant waived his first argument, and that the evidence

was sufficient to establish an unbroken chain of custody. We agree with the State.

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

MATTHEW J. WILSON, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and TOM GREENHOLTZ, JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Jerry L. Dismukes.

Jonathan Skrmetti, Attorney General and Reporter; Abigail H. Rinard, Assistant Attorney

General; Charme P. Allen, District Attorney General; and Mitch Eisenberg, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural History

A Knox County Grand Jury returned a six-count indictment charging Defendant

with a number of drug offenses. Count 1 alleged Defendant “did unlawfully and knowingly

possess with intent to sell or deliver a Schedule I controlled substance, to-wit: Heroin in an

amount of more than fifteen [] grams . . . .” Count 2 alleged Defendant “did unlawfully

and knowingly possess with intent to sell or deliver a Schedule II controlled substance, to-

wit: Fentanyl in an amount less than [] [200] grams . . . .” Count 3 alleged Defendant “did

unlawfully and knowingly possess with intent to sell or deliver a Schedule II controlled

substance, to-wit: more than twenty-six [] grams of a substance containing Cocaine . . . .”

Count 4 alleged Defendant maintained a place to keep controlled substances, Count 5

alleged he maintained a place to sell controlled substances, and Count 6 alleged he

possessed drug paraphernalia.

A. Trial

In October 2019, Khristian Pickett,1 a narcotics investigator for the Knox County

Sheriff’s Office, learned that Anna Vandergriff and another individual were selling

narcotics out of a house at 3416 Oak Grove Street, in Knox County. Investigator Pickett

surveilled the house and conducted several controlled buys using a confidential informant

to purchase drugs. He observed multiple vehicles and individuals approach the house. The

investigator frequently observed Ms. Vandergriff exit the house, get into the vehicles, stay

there for short time periods—between three and thirty minutes—and go back inside. Other

times, individuals who had either driven up or walked to the house would go into the house

and stay a similarly short time period. The investigator explained that this activity was

consistent with narcotics sales. He identified at least one of the individuals he observed as

a person he knew was involved in narcotics sales.

Investigator Pickett then obtained a warrant to search the house. On October 29,

2019, Detective John Sharp, another narcotics investigator with the Knox County Sheriff’s

Office, assisted Investigator Pickett and other officers in executing the warrant. When

officers searched the house, they found Ms. Vandergriff, Defendant, and several other

individuals inside. Investigator Pickett found Ms. Vandergriff and a female named Donna

Cummings inside Ms. Vandergriff’s bedroom. In that bedroom, the officers found two sets

of digital scales, multiple cell phones, torn paper used to package narcotics, and about a

gram of heroin. Officers also found a tourniquet, used needles, and syringes; items which

drug users employ to inject drugs intravenously. This led them to believe that drugs were

not just being sold out of the house, but that people also were coming to the house to use

drugs.

Investigator Pickett opined that a single dose of heroin would be approximately one-

tenth of a gram. He stated that a gram of heroin would typically cost between $75 and

1

Investigator Pickett was qualified by the trial court as an expert in narcotics investigation,

identification, and valuation.

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$100, and an ounce of heroin would cost approximately $1400. He stated that those who

sell heroin would typically purchase and possess an “eight ball,” or approximately 3.5

grams or more at a time, and that possession of a gram of heroin was consistent with

personal use.

Officers found Defendant in a separate bedroom and discovered about ten grams of

suspected heroin hidden inside tires, razors, at least one digital scale, drug packaging

materials, a mirror with powder residue on it, and four cell phones.2 Officers also found a

suitcase that contained a cell phone bill addressed to Defendant in the room. Investigator

Pickett surmised that Defendant’s room was where the narcotics “were being cut up and

packaged for resale” because of the packaging materials and the residue on the mirror as

well as other surfaces. After conducting their investigation, officers believed that Ms.

Vandergriff and Defendant lived at the house, but that the other people they found in the

house did not live there.

Officers eventually took Defendant and the others outside. When officers began to

search Defendant’s person, he “defecated on himself” while making “[s]light grunts and

laughing.” This hindered officers’ ability to fully search Defendant, so they secured him

in a chair and resumed their search inside the house. Anthony Wallace, a transportation

officer with the Knox County Sheriff’s Office, arrived at the scene later than other officers.

Officer Wallace found Defendant “sitting in a chair” outside and “escorted him to the

wagon.” When Officer Wallace went to pat Defendant down, Defendant “started bending

over and yelling.” Officer Wallace believed Defendant “was trying to sidetrack [him] from

the search,” but he continued searching Defendant. When Officer Wallace searched

Defendant’s midsection, Defendant started “doubling over,” but the officer felt an object

in Defendant’s pants and removed it. Officer Wallace testified the object was “hard

wrapped . . . kind into a ball . . . about the size of a baseball.”3 Officer Wallace gave the

object to one of the narcotics investigators and took Defendant to the detention facility.

After unwrapping the baseball-sized object, investigators discovered it contained

approximately forty-two grams of suspected heroin, twenty-eight grams of suspected crack

cocaine, and thirty grams of suspected powder cocaine. Investigator Pickett noted that

“[e]verything was packaged separately” which led him “to believe that [it was] going to be

for resale.” Investigator Pickett and Detective Sharp double bagged each of the suspected

narcotics packages found on Defendant’s person in three separate exhibits with a fourth

exhibit containing narcotics found in the house, labeled them, placed them in a manila

2

During the execution of the search, some of the cell phones were receiving calls from Michigan,

a source state for heroin and fentanyl ultimately distributed in Knox County.

3

Officers also found $1,684 cash on Defendant, who admitted to being unemployed.

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envelope and then into outer plastic packaging, which they heat sealed. The exhibits then

were sent to the Tennessee Bureau of Investigation (TBI) crime laboratory for testing.

During trial, Detective Sharp testified that the evidence inside the envelope was the

evidence found at the crime scene. The detective testified that the sample labeled “A” was

from Defendant’s bedroom, and the samples labeled “C,” “D,” and “E” were from

Defendant’s person. The detective testified that once he sealed and marked the envelope,

he either gave it to the evidence custodian or placed it in a secured locker.

Investigator Pickett identified the narcotics that were provisionally introduced into

evidence as Exhibit 3. The following exchange occurred between the investigator, the

parties, and the trial court:

State: I’m handing you what’s been pre-marked as Exhibit [Number]

3. Do you recognize this package?

Inv. Pickett: Yes, sir.

State: Is that the drugs that were submitted by your office to TBI in

this case?

Inv. Pickett: Yes, sir.

State: Your Honor, I’d offer this as Exhibit [Number] 3 and I’d ask

that it be introduced into evidence.

Trial Court: All right. Well, let’s—you can go ahead and introduce it

absent objection as Exhibit [Number] 3 once—are you

contesting the chain of custody to TBI?

Defense Counsel: No, Your Honor. But I would ask that the toxicology report be

removed and be admitted separately.

Trial Court: Well, we’re not going to do anything with it until TBI

completes the chain of custody.

Defense Counsel: I understand, Your Honor.

Investigator Pickett testified that the narcotics were packaged just as they were when

they were sent to the TBI. At the request of the State, the investigator opened the envelope

in court and displayed the narcotics for the jury.

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Lori James, an evidence technician with the TBI at the Knoxville Crime Laboratory,

received the sealed manila envelope. Ms. James never opened the envelope, and explained

that any issues with the evidence, such as the chain of custody, would have been

documented and addressed near the time said issues were discovered. Ms. James stated,

“We try to verify that everything matches the paperwork versus the bag before we take it

in.” Ms. James told the jury that she checked the seals on packages when the agency

received them, but the envelope “was not like this when we received it. We wouldn’t have

accepted it in that condition.” When asked specifically whether there were any problems

with the chain of custody, Ms. James said that “[e]verything matche[d].”

Special Agent Hannah Peterson, a forensic chemist with the TBI, received the

suspected narcotics for testing.4 She also testified that there were no inconsistencies in the

chain of custody. Agent Peterson tested two of the substances and found one bag held

“31.18 grams of a white and brown rocklike substance that contained heroin and fentanyl.”

She admitted she did not test the substance for purity, so she could not identify “how much

heroin versus fentanyl was in the mixture.” Agent Peterson discovered that a second bag

contained 27.76 grams of cocaine. She testified that she did not test samples “A,” “B,” and

“D.”

After the State’s last witness, but before it rested its case, the State formally moved

Exhibit Number 3 (the narcotics) into evidence based on proving the chain of custody, and

Defendant objected to the exhibit’s admission. The following exchange occurred between

defense counsel and the trial court:

Trial Court: As I recall the testimony, Detective Sharp—

[Investigator] Pickett and Detective Sharp both testified

that they were present and either seized the evidence in

question and/or witnessed its seizure. Detective Sharp

testified that the evidence that’s contained within the

envelope he personally sealed up—sealed the envelope

and initialed. The TBI evidence tech testified that she

received that sealed envelope and would not have

received it had there been a problem. So it was sealed.

It was in that condition when the chemist—forensic

chemist examined the same and identified the

substances. Why has the chain of custody not been

proven?

4

Special Agent Peterson was qualified as an expert in forensic chemistry.

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Defense Counsel: Judge, initially, at first blush I thought the concern

would be over the fact that [Investigator] Pickett did not

put it into evidence and that we needed [Detective]

Sharp to come to verify how it was packaged and how

it was sent. And then we get to his testimony and he’s

unclear about the endgame, the end result of how he put

that either into an evidence locker or whether it was

turned over to a technician. And I think at that point in

time it becomes—the picture becomes much more fuzzy

for us about the chain of custody going forward from

there to the TBI.

Trial Court: Well, here’s the test. . . . [I]s the evidence what it

purports to be[?] It’s a question of authentication. Is

there sufficient proof within the record that identifies

what is being offered by the proponent of the evidence,

in this instance the State of Tennessee, that it in fact is

what they propose that it is. And there is. I mean, the

testimony is through the testimony of [Investigator]

Pickett and [Detective] Sharp that the evidence was

seized, the specific evidence that they both identified as

being in the smaller clear plastic bags, that they seized

it. Detective Sharp testified that he marked each of

those bags. He put them in the bigger manila envelope.

He sealed it. And whether it went to the back of a patrol

cruiser or into the evidence locker at the Sheriff’s

Department before it was ultimately taken to the TBI,

Detective Sharp has testified that that was his sealed

envelope that he initialed the seal that TBI received.

And TBI said it had not been altered or they would not

have accepted the evidence. The chain of custody has

been established. I mean, it’s quite frankly been proven

much more vigorously in this case than it normally is.

All right. The [c]ourt notes your objection. The [c]ourt

respectfully overrules the same. The evidence is

admitted within the record.

At the close of the State’s proof, Defendant moved for a judgment of acquittal under

Tennessee Rule of Criminal Procedure 29, arguing that the proof was insufficient on all

counts. As to Count 1, Defendant argued that the State’s proof, specifically Agent

Peterson’s testimony, showed that the heroin was not tested for purity, and therefore, the

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State had not proven the threshold amount of more than fifteen grams of heroin. The court

granted the Rule 29 motion for Counts 4 and 5, charging Defendant with maintaining a

dwelling for keeping and selling controlled substances. The court announced it had

reservations as to Count 1 because the heroin was not tested for purity. The court noted

that in Count 1, the State did not charge “‘a substance containing heroin’—just like [it] did

down here in Count [3].” As to Count 3, the court found the language charged “more than

[twenty-six] grams of a substance containing cocaine. . . . [T]hat’s the specific language

from the statute.” The trial court announced it would submit the charge to the jury, but if

the jury convicted on Count 1, the court would reassess the verdict on that count in light of

the indictment’s language. The court denied Defendant’s Rule 29 motion for the remaining

counts.

In Defendant’s case-in-chief, he offered two exhibits into evidence, which were

judgments relating to Ms. Vandergriff’s convictions for drug offenses from the same

incident. Defendant presented no further proof and elected not to testify. After

deliberations, the jury convicted Defendant in Count 1 of possession of more than fifteen

grams of heroin with intent to sell or deliver, in Count 2 of possession of less than 200

grams of fentanyl with intent to sell or deliver, in Count 3 of possession of more than

twenty-six grams of cocaine with intent to sell or deliver, and in Count 6 of possession of

drug paraphernalia.

At Defendant’s sentencing hearing, the State conceded there was insufficient proof

to sustain a verdict for Count 1, Defendant’s conviction for possession of more than fifteen

grams of heroin with intent to sell or deliver, but argued there was sufficient proof to sustain

a conviction for the lesser-included offense of possession of heroin with intent to sell or

deliver. The State informed the trial court that Defendant would remain convicted of a

Class B felony as to Count 1, but “[t]he only difference . . . would be as to the effective

fine.” The trial court sentenced Defendant, as a Range I standard offender, to eleven years

in Count 1 and Count 3, three years in Count 2, and eleven months and twenty-nine days

in Count 6. The court imposed the sentences to run concurrently, for an effective eleven-

year sentence of imprisonment at thirty-percent service.5

B. Motion for New Trial

Defendant timely moved for a new trial, arguing that the jury’s verdict was against

the weight of the evidence, and that the trial court should have dismissed Counts 1 and 2

because the forensic chemist “could not specify the amount” of heroin and fentanyl

“contained in the sample.” At the hearing, Defendant argued that “the indictment did not

charge a substance in an amount, it charged a specific substance in a specific amount.”

5

Defendant does not challenge the length of his sentences on appeal.

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Referring to Count 1, the trial court acknowledged that there was “a question of the

sufficiency of the State’s evidence based on upon how the case [was] indicted.” As it did

at Defendant’s sentencing hearing, the State stated that the specific weight of the heroin

impacts “the amount of fine” the jury can impose, not the classification of felony offense.

The trial court then instructed the State to prepare “a corrected judgment, . . . finding

[Defendant] guilty of the lesser[-]included offense of less than [fifteen] grams” and to

“[a]ssess the minimum fines on each of these.” When defense counsel asked the court to

clarify, the court stated, “[The State is] going to prepare a corrected judgment finding

[Defendant] guilty of the lesser offense of less than [fifteen] grams of heroin because that

way there’s no question about which part of the substance was heroin, which part was

fentanyl.” The court also noted that the lesser-included offense was still a Class B felony,

but Defendant was not subject to a greater fine. Defense counsel responded, “Less than.

Right.” Defendant lodged no contemporaneous objection to the trial court’s instruction to

the State.

Ultimately, the trial court denied the motion for a new trial. It noted that because

officers found Defendant with narcotics “wadded up in a ball and down the front of his

pants when the officers arrest[ed] him,” the proof was overwhelming and a new trial was

not warranted. Defendant’s timely appeal follows.

II. Analysis

On appeal, Defendant argues that there was insufficient evidence to support his

heroin conviction (Count 1) and that the trial court provided the improper remedy when it

modified his conviction to a lesser offense. Defendant also argues that there was

insufficient evidence to prove that the chain of custody was unbroken as to all the narcotics.

The State counters that Defendant waived his first argument by failing to

contemporaneously object and that he cannot establish plain error. The State also argues

that the evidence was sufficient to support the finding that the chain of custody was

unbroken.

A. Improper Remedy

The jury convicted Defendant for possession of more than fifteen grams of heroin

with intent to sell or deliver. This conviction related to a mixed substance of heroin and

fentanyl that weighed 31.18 grams. Under Tennessee Code Annotated section 39-17-

417(a)(4), “it is an offense for a defendant to knowingly . . . [p]ossess a controlled substance

with intent to manufacture, deliver or sell the controlled substance.” Violating “subsection

(a) with respect to a Schedule I controlled substance is a Class B felony,” and possession

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of “[f]ifteen (15) grams or more of any substance containing heroin” subjects a defendant

to a fine not more than $200,000. Id. § 39-17-417(b), (i)(1) (emphasis added). Defendant

does not challenge whether he possessed fifteen grams or more of any substance containing

heroin; instead, Defendant argues that he did not possess “[h]eroin in an amount of more

than fifteen (15) grams, in violation of [Tennessee Code Annotated section] 39-17-417” as

charged in the indictment.

The forensic chemist admitted that she did not test the substance for purity and thus

could not determine the individual weights of heroin and fentanyl in the exhibit. At the

hearing on the motion for new trial, Defendant consequently argued that “the jury was

clearly speculating.” The trial court attempted to correct this error by issuing a “corrected

judgment finding [Defendant] guilty of the lesser-included offense of less than [fifteen]

grams of heroin.” Defendant did not object and now argues that this remedy was improper.

The State argues that Defendant has waived this issue by failing to contemporaneously

object and notes that Defendant has not requested plain error relief. The State further

argues that Defendant could not establish plain error anyway. Defendant did not file a

reply brief to address either of these issues. Accordingly, we agree with the State that

Defendant waived this issue, and we decline to exercise plain error review.

1. Waiver

“When a defendant raises an issue for the first time on appeal, the issue will

generally be deemed waived and will be considered only within the limited parameters of

an appellate court’s discretionary plain error review.” State v. Banks, 271 S.W.3d 90, 119

(Tenn. 2008) (first citing State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005); and then

citing State v. Maddin, 192 S.W.3d 558, 561 (Tenn. Crim. App. 2005)); see also Tenn. R.

App. P. 36. Indeed, “[n]othing in [Rule 36] shall be construed as requiring relief be granted

to a party responsible for an error or who failed to take whatever action was reasonably

available to prevent or nullify the harmful effect of an error.” Tenn. R. App. P. 36(a). And

as we have previously noted, “[t]he failure to make a contemporaneous objection

constitutes a waiver of the issue on appeal.” State v. Gilley, 297 S.W.3d 739, 762 (Tenn.

Crim. App. 2008).

Here, at the motion for a new trial, the trial court instructed the State to “do a

corrected judgment, . . . finding [Defendant] guilty of the lesser-included offense of less

than [fifteen] grams.” When defense counsel asked the court to repeat its statement, the

court said the State would “prepare a corrected judgment finding [Defendant] guilty of the

lesser offense of less than [fifteen] grams of heroin because that way there’s no question

about which part of the substance was heroin, which part was fentanyl.” Defense counsel

responded, “Less than. Right.” Defendant never objected. Because Defendant failed to

contemporaneously object, we agree with the State that Defendant did waive this issue.

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See id.; see also State v. Thompson, No. W2022-01535-CCA-R3-CD, 2023 WL 4552193,

at *5 (Tenn. Crim. App. July 14, 2023), no perm. app. filed.

2. Plain Error

As noted, even when a defendant fails to properly preserve an issue for appeal, this

court may still consider it under our “discretionary plain error review.” Banks, 271 S.W.3d

at 119; see also Tenn. R. App. P. 36. “When necessary to do substantial justice, an

appellate court may consider an error that has affected the substantial rights of a party at

any time, even though the error was not raised in the motion for a new trial or assigned as

error on appeal.” Tenn. R. App. P. 36(b). Still, appellate courts are instructed to “sparingly

exercise[]” this discretionary power. State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007)

(citations omitted). It is also a defendant’s “burden to persuade an appellate court that the

trial court committed plain error.” Id. at 355 (citing United States v. Olano, 507 U.S. 725,

734 (1993)). “[A] defendant’s failure to [even] request this relief weighs against any such

consideration on our own.” Thompson, 2023 WL 4552193, at *5 (citing State v. Cornwell,

No. E2011-00248-CCA-R3-CD, 2012 WL 5304149, at *18 (Tenn. Crim. App. Oct. 25,

2012)). Finally, the State raised the possibility of waiver in its response brief. However,

despite being on notice of a waiver issue, Defendant did not respond to this argument in a

reply brief or otherwise. “Where a defendant fails to respond to a waiver argument, only

particularly compelling or egregious circumstances could typically justify our sua sponte

consideration of plain error.” Id. Defendant is, therefore, not entitled to relief on this issue.

B. Chain of Custody

As to his second issue, Defendant argues that “there was insufficient evidence to

support the convictions based on the State’s failure to prove chain of custody.”

Specifically, Defendant claims that because Detective Sharp could not remember whether

he gave the sealed evidence to an evidence custodian or placed it in an evidence locker,

“there is a critical link missing in the chain of custody.” Defendant also argues that Lori

James, an evidence technician with the TBI, testified that there was a problem with the seal

and that it had been opened by someone else. The State argues that “[w]itness testimony

established an unbroken chain of custody.” We agree with the State.

This court reviews chain of custody challenges under an abuse of discretion

standard. State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008) (first citing State v. Scott,

33 S.W.3d 746, 752 (Tenn. 2000); and then citing State v. Beech, 744 S.W.2d 585, 587

(Tenn. Crim. App. 1987)). A reviewing court should uphold a trial court’s ruling unless

the trial court “applies an incorrect legal standard, . . . reaches an illogical or unreasonable

decision, or . . . bases its decision on a clearly erroneous assessment of the evidence.” State

v. Mangrum, 403 S.W.3d 152, 166 (Tenn. 2013) (citations omitted).

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Here, Tennessee Rule of Evidence 901(a) is the applicable rule, providing that “[t]he

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.” Our supreme court has repeatedly held

that “‘as a condition precedent to the introduction of tangible evidence, a witness must be

able to identify the evidence or establish an unbroken chain of custody.’” State v. Scott,

33 S.W.3d 746, 760 (Tenn. 2000) (emphasis added) (quoting State v. Holbrooks, 983

S.W.2d 697, 701 (Tenn. Crim. App. 1998)); see also Cannon, 254 S.W.3d at 296. The

chain of custody rule “is designed to insure ‘that there has been no tampering, loss,

substitution, or mistake with respect to the evidence.” Id. (quoting State v. Braden, 867

S.W.2d 750, 759 (Tenn. Crim. App. 1993)). Although the State should sufficiently

establish each “link” in the chain of custody, it is not required to prove the identity of

tangible evidence “beyond all possibility of doubt.” Cannon, 254 S.W.3d at 296. The

State need not exclude every possibility of tampering, and an “item is not necessarily

precluded from admission . . . if the State fails to call all of the witnesses who handled the

item.” Id. (first citing Scott, 33 S.W.3d at 760; and then citing State v. Johnson, 673 S.W.2d

877, 881 (Tenn. Crim. App. 1984)). Indeed, “when the facts and circumstances that

surround tangible evidence reasonably establish the identity and integrity of the evidence,

the trial court should admit the item into evidence.” Id.

First, we address Defendant’s claim that there is a “critical link missing in the chain

of custody” of the narcotics because Detective Sharp could not remember whether he had

submitted the item to an evidence locker or to an evidence custodian. Defendant’s

argument implies that the State’s failure to call the evidence custodian was fatal.

In State v. Johnson, the defendant objected to the admission of a “rape evidence

kit,” arguing that the chain of custody was not sufficiently proven. 673 S.W.2d at 880-81.

A doctor had collected the evidence kit from the victim and submitted the kit to nursing

personnel. Id. at 881. The kit was later given to various law enforcement officers, and

ultimately submitted to the crime laboratory in a sealed condition. Id. At trial, the State

called no nursing personnel to testify. Id. This court upheld the kit’s admission and

accompanying testimony into evidence under an abuse of discretion standard, finding that

the evidence’s admission was a matter for the trial court to determine, and “[w]hether [the

police officer] received the evidence kit directly from the hands of [the doctor] or through

the intervention of a nurse attendant in the examining room is inconsequential.” After

Johnson, this court repeatedly has held that the State need not call as a witness every person

who handled an item of evidence, and “the circumstances must only show with reasonable

assurance the identity of the evidence.” State v. Ferguson, 741 S.W.2d 125, 127 (Tenn.

Crim. App. 1987) (internal citations omitted); see also State v. Patton, No. E2013-01355-

CCA-R3-CD, 2014 WL 1512830 at *9 (Tenn. Crim. App. Apr. 16, 2014); State v. Mitchell,

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No. W2020-01488-CCA-R3-CD, 2021 WL 5811245 at *12-13, (Tenn. Crim. App. Dec. 7,

2021), perm. app. denied, (Tenn. Apr. 14, 2022).

Here, contrary to Defendant’s claim, the record is clear as to what happened with

the exhibit. Investigator Pickett and Detective Sharp were present at the scene when

officers recovered narcotics from Defendant and his room. Detective Sharp collected the

narcotics and put them into individual evidence bags and sealed them. He then placed each

individually sealed bag into one manila envelope. He initialed, dated, and sealed that

envelope as well. Though Detective Sharp could not remember whether he gave the

envelope to an evidence custodian or placed it in a secure locker, calling the custodian was

not required. See Cannon, 254 S.W.3d at 296. At trial, Investigator Pickett testified that

the drugs were packaged just as they were when they were sent to the TBI. He then opened

the exhibit in open court at the prosecutor’s request. Detective Sharp testified that the

evidence inside the envelope reflected the evidence found at the crime scene. Ms. James

and Special Agent Peterson testified that there were no chain of custody issues. Thus, the

State sufficiently identified the evidence “to support a finding by the trier of fact” that the

evidence is what the State claims it to be. Scott, 33 S.W.3d at 760; Tenn. R. Evid. 901(a).

We, therefore, conclude that the trial court acted within its discretion in finding that the

State properly established a chain of custody.

Defendant further argues that Ms. James “testified . . . that there was a problem with

the seal; and that it had ‘been opened by someone else.’” Defendant misconstrues Ms.

James’s testimony because, from our review of the record, Ms. James was referring to the

investigator’s opening of the envelope during trial. Ms. James testified after Investigator

Pickett. She viewed the exhibit after the investigator had opened it in court. Ms. James

testified the laboratory would not have accepted the exhibit for testing had it been received

opened as it appeared in court. In other words, she was hypothetically explaining that

evidence in that condition—with a broken seal as it appeared when she testified—would

not have been accepted. She was not testifying that she received the envelope with a broken

seal at the crime laboratory. Again, Ms. James and Agent Peterson testified that there were

no inconsistencies with the evidence regarding the chain of custody. Thus, Defendant’s

argument is without merit.

III. Conclusion

For the foregoing reasons, we affirm the judgments of the trial court.

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MATTHEW J. WILSON, JUDGE

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