State v. Holt , 1997 Tenn. Crim. App. LEXIS 1325 ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL SESSION, 1997 December 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9603-CC-00122
)
Appellee, )
)
) GREENE COUNTY
VS. )
) HON. JAMES E. BECKNER
WILLIAM LYNN HOLT, ) JUDGE
)
Appe llant. ) (Direct Appe al - Theft)
FOR THE APPELLANT: FOR THE APPELLEE:
LAWRENCE A. WELCH, JR. JOHN KNOX WALKUP
1104 Tusculum Blvd., Ste. 101 Attorney General and Reporter
Greeneville, TN 37743
CLINTON J. MORGAN
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
C. BERKELEY BELL
District Attorney General
ERIC D. CHRISTIANSEN
Assistant District Attorney
113-J West Church Street
Greeneville, TN 37743
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
A Green e Cou nty Crim inal Cou rt jury found Appella nt, William Lynn Holt,
guilty of theft of property valued over $10,000 and under $60,000. Appellant was
sentenced to six years in the Tennessee Department of Correction and fined
$10,000. On appeal, Appellant presents the following issues for review:
1) whether the evidence presented at trial was
insufficient as a mater of law to support the jury verdict of
theft of property valued between $10,000 and $60,000;
2) whether the trial court erred in denying the
defense request for a jury instruction on joyriding as a
lesser included offense;
3) whether the trial court erred in not giving the jury
instruction set out by the Tennessee Suprem e Cou rt in
State v. Dyle, 899 S.W.2d 607(Tenn. 1995); regarding
eyewitness identification.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
FACTUAL BACKGROUND
The evidence presented at trial established that in early June,
1995, Appellant and three other people worked at the home of J.C.
Jones, painting the Jones home. Mr. Jones testified that at that time he
owned a 1964 yellow Corvette convertible automobile, which he kept
hidden behind his house. On June 8, the Jones fam ily left for a
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vacation without having given anyone permission to drive the car. They
were inform ed late r that we ek tha t the au tomo bile had been stolen and
burned. Mr. Jones testified that the car had a fair market value of at
least $25,000.
Mr. Hobert Carter, familiar with Mr. Jones’ automobile, saw the
car being driven at about 8:45 p.m. on June 8, 1995. Mr. Carter
identified Appe llant as having been the drive r of the c ar. Mr. R onnie
Brown testified that A ppellant came to his body and repair shop and
asked him to paint a ‘64 Corvette convertib le. Mr. Brow n refuse d to
paint the car, telling Appella nt, “I ain’t getting in trouble.” Ms. Kay Lane
testified that she to ok App ellant to a field beh ind a tresp assing g ate in
order to retrieve a car for which he said he had traded a motorcycle and
a Camero. Ms. Lane testified that he got the keys to the car from the
trunk and drove the car to a trailer park. She later received a phone call
telling her that Appellant had wrecked. She drove to where Appellant
was and overheard h im talking abou t having to get rid of the ca r.
Several other witnesses testified they saw Appellant driving the
Corvette .
SUFFICIENCY OF THE EVIDENCE
Appellant argues that the evidence presented at trial was
insuffic ient to support the verdict of guilty in that there was no
competent evidence to establish the value of the stolen automobile. He
bases this argument upon the fact that J.C. Jones is not the owner of
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record, though he provided the only testimony regarding the value of
the car. In State v. B ridgeforth , 836 S.W.2d 591 (Tenn. Crim. App.
1992), this court held that Tennessee Rule of Evidence 701 pro hibits
value testimony from any lay witness other than the property owner.
Howeve r, Bridgefo rth involved testimony from a bailee regarding the
value of property in the bailment. The situation in the case sub judice
is very different from that pre sented by Bridgefo rth. Here, the witness
who testified regarding th e value of the car was married to the titled
owner of the car. The testimony was that the car was their joint marital
property. While the figure put into evidence by the bailee in Bridgefo rth
did not in anyway demonstrate how the amount was arrived at or even
that the bailee had any reliable knowledge o f the value of the goods,
the value attributed to the car by Mr. Jones was clearly arrived at
through intimate k nowled ge of the v ehicle. T his issue is without m erit.
FAILURE TO CHARGE JOYRIDING
Appellant argues that the trial court erred in failing to charge the
jury on the lesser offense of joyriding, Tennessee Code Annotated
Section 39-14-106. A person commits “joyriding” when he or she:
“takes another’s automobile, airplane, motorcycle, bicycle, boat or other
vehicle without the consent of the owner a nd the perso n does no t have
the intent to deprive the owner thereo f.”
A trial court ha s a duty to instruct the jury on all lesser included
or lesser grade of offen ses w hethe r or not it is requested to do so.
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State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996). However, the trial
court is not re quired to instru ct the ju ry regarding a lesser included or
lesser grade of offense where no evidence has been presented to
support a lesser o ffense. Id.; W hitwell v. State, 520 S.W.2d 338, 343
(Tenn. 1975); and State v. Rhoden, 739 S.W.2d 6,11 (Tenn. Crim. App.
1987). The facts in this ca se do not su pport a jury charge for joyriding.
Appellant consulted with a body shop about painting the vehicle. After
wrecking, Appellant burned the c ar. There is no evidence in this record
that Appellant intended anything but to deprive the owner of the car of
his property. Therefore, the trial judge's failure to charge the jury on the
lesser offense of joyridin g was not rev ersible error. This issue is without
merit.
HEARSAY OBJECTION
Appellant mainta ins that the trial court erred in sustaining the
State ’s objections to certain questions asked during the cross-
examination of Detective Ellison. On direct examination the prosecutor
elicited from Detective Ellison that Mr. Hobert Carter had told Ellison
that he had seen Appe llant drivin g the J ones ’ vehicle . This testimony
was admitted pursua nt to Tenn. R. Evid. 803(1.1) which allows, as an
exception to the h earsa y rule, a p rior state men t of iden tification by a
witness if the declara nt testified and is subject to cross-examination.
On cross-examination counsel for Appellant asked questions of Ellison
concerning whether Carter had told Ellison that appellant had waived
at Carter w hen C arter saw him in the Jones’ Corve tte. Th e State ’s
objections to these questions were sustained on hearsay grounds.
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Hearsay is defined at Tenn. R. Evid. 801(C) as:
. . . a statement, other than one made by the
declarant while testifying at trial or hearing,
offered in evidence to prove the truth of the
matter asserted.
Clearly, co unsel w anted to show by this line of questioning that
Appellant was not afraid of being seen driving the Corvette, and h ad in
fact waved to Carter. However, it is equally clear that eliciting this
information through Ellison amounted to an attempt to introduce
hearsay for which no exception exists and it was th erefor e prop erly
excluded. In any event during Mr. Carter’s testimony counsel asked
Carter if Appellant had waved to him. Carter responded that Appellant
had indeed waved. The jury had the benefit of th is informa tion and its
exclusion during Ellison ’s testimon y could no t have ha rmed A ppellant.
JURY INSTRUCTION REGARDING IDENTITY
Appe llant’s last complaint concerns the jury instruction regarding
identity. At trial the jury instructed the jury with the traditional pattern
instruction regarding identity. T.P.I.Crim. (3d ed.) 42.05 (1993).
Appellant maintains that this instruction was insufficient in light of the
Tennessee Supreme Court’s holding in State v. Dyle, 899 S.W.2d 607(Tenn. 1995). In Dyle our sta te sup reme court h eld tha t in cases wh ere
the identity of the defendant is a material issue, a m ore comp rehensive
jury instruction than that of the traditional pattern charge should be
given to the jury if the defendant requests the more comprehensive
instruction.
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The jury instruc tions p romu lgated by the C ourt in Dyle reads as
follows:
One of the is sues in this ca se is the
identification of the defendant as the person
who committed the crime. The state has the
burden of proving identity beyond a
reaso nable doubt. Identification testim ony is
an expression of belief or impression by the
witness, and its value may depend upon your
consideration of several factors. Some of the
factors which you may consider are:
(1) The witness’ capacity and op portunity to
observe the offender. This includes, among
other things, the length of time available for
observation, the distance from which the
witness observed, the lighting, and whether
the person who committed the crime was a
prior acquaintance of the witness;
(2) The degree of certainty expressed by the
witness regarding the identification and the
circumstances under w hich it was made,
including wheth er it is the product of the
witness’ own recollection;
(3) The occasions, if any, on which the
witness failed to made an identification of the
defend ant, or made an identification that was
inconsistent with the identification at trial; and
(4) The occasions, if any, on which the
witness made an identification that was
consistent with the identification at trial, and
the circumstances surroundin g such
identifications.
Again, the state has the burden of proving
every elem ent of th e crim e cha rged, a nd this
burden spec ifically includes the identity of the
defendant as the person who committed the
crime for which he or she is on trial. If after
considering the identific ation te stimo ny in
light of all the proof y ou ha ve a rea sona ble
doubt that the defen dant is the person who
committed the crime, you must find the
defendan t not guilty.
Id. At 612.
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If a defend ant fails to request the instruction set forth above, the
case under consideration must be analyzed to determine whether the
failure to give the in struction a moun ts to harm less error. Id. In the
instant case Appellant did not request that the Dyle instruction be given.
W e there fore re view the case unde r a harm less er ror stan dard. 1
In this case Kay Lane testified she was with Appellant when he
first took the Corvette. Appellant was positively identified as driving the
car on June 8 , 1995. The next day Appellant asked Ronnie Brown to
paint the Corvette. In addition four other witnesses who knew Appellant
also saw him driving the stolen Corvette. We are convinced that any
error in the failure to give the Dyle instruction did not effect the verdict
in this case . Tenn. R . Crim. P . 52(a). Th is issue is w ithout me rit.
Having reviewed the rec ord and the arguments of the parties we
conclude there is no reversible error in this record. Accordingly, the
judgment of the trial court is affirmed.
_____________________________
JERRY L. SMITH, JUDGE
1
It should be noted that only if identity is a material issue is a defendant entitled to the Dyle
instruction upon request or a harmless error analysis in the absence of a special request. If identity is not
a material issue failure to give the Dyle instruction is not error at all. Identity is a material issue when the
defend ant puts it in iss ue or wh en eyewitn ess tes timony is u ncorro borated by circum stantial evide nce.
Dyle at 612 F.N.4. In the case sub judice App ellant only hin ted th at the eyew itnes ses were mis take n in
identifying him as the pe rpetrator o f the car th eft. His prim ary defen se was that he did n ot intend to
permanently deprive the owner of the vehicle. Thus, it is questionable whether identity was a material
issue in this case. We nevertheless will address this issue under the harmless error standard.
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CONCUR:
___________________________________
JOE G. RILEY, JUDGE
___________________________________
CHRIS CRAFT, SPECIAL JUDGE
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