# FILED September 10, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9703- CR-00117 ) Appellee, ) SULLIVAN COUNTY ) vs. ) ) HON. R.JERRY BE CK, JU DGE LON MITC HEL L PIER CE, JR ., ) ) (FELONY MURDER; THEFT OVER Appe llant. ) $10,000; MISDEMEANOR THEFT; ) EVADING ARREST)
FOR THE APPELLANT : FOR THE APPELLEE : JAMES S. ROACH JOHN KNOX WALKUP Attorney at

Law Attorney Generaland Reporter 128 E. Market Str

eet Johnson City, TN 37604 MARVIN E.CLEMENTS, J R. Assistant Attorney General and 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North DONALD E. SPURRELL Nashvill e, TN 37243 Attorney at

Law 128 E. Market Str

eet Johnson City, TN 37604 H. GREELEY WELLS Distri ct Attorney General TERESA M. SMITH Assistant Distri ct Attorney General P.O. Box 526 Blountvi lle, TN 37617

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE2 

# OPINION

The Appella nt, Lon M itchell Pierce , Jr., was fou nd guilty by a Sulliv an Coun ty jury of the crim es of fi rst degreefelony murder , theft over $10,000, misdemeanor theft, and evading arr est. At t he time of the instant offenses , the Appellant

wa s fift een years of age. Followinga hearing i n the Juvenil e Court, th e Appellant

was transfer red to the Cri minal Court for trialas an adult. Although the Appellant

was also indi cted o n a charge of simple pos session of co caine, the jury returned a verdict of

not guilty as to this count . In accor dance with t he sentencing provisi ons for the capital cri me of felony murd er, the tr ial cou rt fixed th e App ellant’s sentence at lif e imprisonment. Followinga sentencing hearing for t he remaining convictions, the tri al court i mposed an effective sentence of four years and ordered thatthis sentence run con currently to the life sente nce. In this a ppeal a s of right, the Appellant raises the f ollowing issues:
I. Whe therthe State of Tennessee had jur isdict ion over th e offense s of felony m urder an d felony the ft; II. Whet her the evide nce is su fficient to sus ta in the Appella nt’ s conviction for felony m urder; III. Whether the tri al court pr op erly denied the Appellant’s request for speci al inst ructions regarding t he felony murder charge; IV. Whether the court pr operly char

ged the jury

reg a rding les ser offenses of

felony murder ; and V. Whether the trial court err ed in allowing the j ury to sentence the Appellant to life in prison
. After a review o f th e r ecord, we aff irm the judg ment of the t rial court.3 Background
Although the events whi ch resulted in the App ell ant’s convi ction fo r felony murder occurred on November 22, 1995, in Sul livan County, Tennessee, the events which ultima tely lead to t his tragedy began in Orlando, Florida on November 2, 1995. O n this date in Orland o, Nora Com acho a nd her h usban d stopp ed at a convenience store for gasoline. Passenge rs in the Comacho’s blue 1995 Dodge Caravan included their fourtee n year old dau ghter, Sarah, the Appel lant, agefifteen, his sixteen year old gi rlfr iend, Apri l Worley, and a four year ol d child i n Worley’s care. Mrs. Com acho ent ered the conveni ence store to purchase a soft drink for

her d a ughter. Upon Mrs. Comacho’s ret urn to the min ivan, an ar gument ensued between herse lf and herdaughter, Sar ah, because the sof

t drink was

in a cup and not in a bott le. Mr. Comacho got out of t he minivan and went to purchase a bot

tled soft drink for his daugh ter. Meanwhile, Mrs . Comacho began to pum p gaso line into the minivan’s gas tank. Sarah “slippe d over in the dr iver’s se at, hit the autom atic [door] l ocks, tur ned the igni tion on and dro ve off with the gas hose i n the van.” An employee of t he c onv eni encesto re i mm edi ately notif ied the Orlando Police Depa rtment. Nora Comacho advised law enf orcement authorities that her daughter had taken her vehi cle on two pr ior occasi ons, only t o be returned wi thout legal repercussions. However, regar ding the pres ent offense, she advised aut horiti es that she wanted to press

charges. The Dodge Caravan wassubse quently e ntered in to the NCIC computer to pr ovide a nati onwide bull etin of t he stolen vehi cle.

After fleeingthe convenien ce store , Sarah Comacho commandeered the minivan for

approximatel y twenty mi nutes before ask ing the Appe llant to drive due to her inexp erience
. The Appellant took control of the vehi cle and ret urned the4

fouryear old chi ld to hi s home. April Worley sugg ested that the trio travel to Bristol, Virgini a, in order to visit her grandmother. With the Appellant and Worley drivi ng in alternat ing shifts , the trio reached Vir ginia i n about twelv

e hours. For

the n ext several weeks, the teenagers stayed with Worley’s gran dmotherat her res idenc e in the Rice Terrace Apartments an d in localmote ls. The three s pent th eir time “mos tly [ridi ng] around
. . . to diff erentciti es [in Tennessee] .” During this peri od, the group
was involved in severalincidents of shopli fting, and on one occasion, “Sara h [Comacho] got caug ht shop lifting a Notre Dam e jacket fro m K-M art i n Kin gsport.” Although they were abl e t o escap e, the group f eared that t he store personn el had obtained the li cense plate number of the minivan. This con cern prompt ed the trio to steal a “ license pl ate from the s ame color and type van [ they] were drivi ng.” They located Laura Alice Rippetoe Bassett’s light blue Dodge Caravan, bearing Sulliv an Coun ty tag numbe r 396- NXX, near the Target storein Johnson Cit y. After steali ng the plate, th ey “ threw th e old plate in the dum pster at a m ini-mark et.”

Twent y days af ter the t heft of t he van from Nora Comacho in Fl orida, police officer

s in Brist

ol, Vir ginia, r eceived inf

ormation conc erning a pos sible stolen blue Dodge minivan located in the Rice Terrace area. At a pproxi mate ly 3:1 5 p. m. on November 22, 1995, Off icers Matt hew Quillen and Vic Jo rdan lo cated a vehic le
m atc hing this descripti on parked on Buckner Street near the Rice Terrace Apartments. Although the van app eare d unoccupied and the officer s never observed anyone enter t he van, the v an pulled out

of the parki ng lot about ten minutes later. The officers no ticed that a male, late r identified as the App ellant, was drivi ng the van and that a female, l ater ident ified as April Wo rley, occupied the f ront passengerseat. Q uil len and Jord an began foll owing the mini van. As the van approached an inte rsectio n, it failed to stop before turnin g right. At this p oint the5

officers turned on the patrol car’s blue lights to initiate a vehiclestop. The van failed to respond, accel erated, and pr o ceeded to pass a schoolbus that was unl oading children. At this point, the officers act ivated the emergencysir ens. After a three minute pursuit thro ugh Br isto l, Virginia, du ring which the App ellant con tinued to violate nume rous traffic law s, th e mi nivan crossedinto the state of Tennesse e. Bristo l, Tennessee police wer e notifi ed of the purs ui t and Q uil len and Jordan returned to Virgini a.

Bristol , Tennessee Police Office r Jam es Bre uer co ntinue d the p ursuit of the minivan. Like his Vi rginia co unterpart , Breuer act ivated all emer gency equipment on his patr ol car, howev

er, the App ellant r efused to stop. Breuer described his pursuit as alow speed c hase, appro ximately forty-five miles per hour in a twen ty-five m ile per hour speed zone, during which ti me the Appellant continued to violate traffic law s. Breu er state d that th e min ivan “w ould slow down almost to a stop to all ow vehicles

in f ront of hi m to pul l ove r.”At one point dur ing the purs uit, t he
van “tapped” t he back of a civilian vehicle at an interse ction, w hich ca used Breu er’s patrol car

to hit the back end of t he van. No damage resulted to eith er vehicl e.

Lieu tenantDann y Bain es join ed Br euer’s fourtee n and one-h alf mil e pursu it as the chase proceed ed away from the Bristol city limits. Once leaving t he city limits, Captain Dary ll Chambers of t he Sulliv an County Sherif

f’s Depart ment took the lead. Alt hough the Br istol po lice office rs con tinued as ba ckup in the pursui t, the officers deactivated their emergenc y equipm en t. Both Bri stol pol ice offi cers and Sullivan Coun ty depu ties we re notifie d that th e pos sible stolen vehicle may c ontain both narcotics and weapons. The chase continue d throug hout the county on Ro ute6

44, with speeds va rying between twenty-five miles per h our to sixty-f ive miles per hour.

De puty Steve M ullins radioe d to Cha mbers that “ he was. . .coming dow n old 421 and h e adv ise d he woul d co me down Hick ory Tree Road and try to cut them off.” Shortly

thereafter, Chambers was able t o spot the bl ue lights of Mulli ns’ patrol car, appro ximate ly four-te nths o f a mile in the distance. It appeared t hat Mulli ns had “a road block set up” with hi s vehicl e. A lthough Mull ins’ pat rol car ex tended appro ximate ly tw o feet over the center l ine, enough roo m remained in which a vehicle could safely m aneuver aro und the de puty's car. Proof was int roduced at trial b ased u pon a reconstruc tion of t he colli sion. The reconst ruction r evealed that oncoming traffic co uld safely m aneuve r around the positio ned pa trol car. In fact, a Ford pickup truckpulli ng a dual axl e cattletrail er was able to pass. The reenact ment also revealed that a v ehicle travelin g app roxim ately 55 to 60 m iles pe r hour c ould safely maneuver past the p arked patrolcarand turn onto Gree n Roa d imm ediate ly past the roa d blo ck . Additional testimon y indicated that the A ppellant could h ave turned on to a side r

oad prior to reaching t he roadblock. Deputy Mulli ns positi oned hims elf behi nd t he patrol car, and rai sed his weap on at

theonc omi ng van. Cham bers testified that, as the minivan approa ched th e roadb lock:

. . .the v

an s lowed some. It

was in my mind at t hat time th at it was going to stop. But, he slowed dow n to a const ant speed and then he didn’t, he didn’t

slow down any more and I was sti ll ri ght behi nd hi m. He proceeded on towards where the crui serwas at i n thehigh way. He didn’t try to avoid co llision with the cruiser. H e didn’t try to go to the right
. He di dn’t, he dro ve straigh t into the fron t of that cruise r. . . . Upon impac t, th e van veered off to t he right. [Deputy]Mullins, i t just sent him flyi ng through the air, like a rag doll really, just, he went back and they [sic]was a tire truck . . . p arked some distance from the cruiser behind thecruiser. And, i t knocked him back, it lo oked like he hit the front of the truck and t hen veered off to the ri ght, landed in the midd le of the hi ghway
. . . . I jumped o ut of my c ruiser an d I run to Steve and h ollered at him and s hook him, a nd he was b le eding re al,7 real bad he was blee ding. . . . And , then he q uit bl eedin g, he w asn’t bleeding any more and I checked hi s pulse, he didn’t have a pulse, he wasn’t br eathing
. . . . Depu ty Mul li ns, a ni net een year vetera n of

theSheriff’ s Dep art me nt, died o n the
scene as a resu lt of massive head i njuries s ustained duri ng the inci dent. The Bristol police officer

s already on t he scen e arres ted the Appe llant, Ap ril Worley, and Sarah Comacho. No weapons we re found i n the vehicl e, although officer s did discov

er one-ten th of one gram of cocai ne, which t he teens stated be longed to Wo rley’s aunt.

In a subseque n t statement to law enfor cement offi cers, the Appel lant explained that “[t]he rea son I didn ’t stop [during the purs uit b y law enf orcement official s] was because I was scar ed . . . a ll I wanted to do was geton the inte rstate and get out of the van and leav e it ther e and get away fr

om it. . . .” Fur

thermore, he recounted his

version of

the coll ision res ulting i n Deputy Mulli ns’ death:
I saw the poli ce car pullout across t he road in fr ont of me. He was across his lane and in my lane just a lit tle bit , but I hadenoug h room to go around him in my l ane. I was t rying to go a round him an d that’s what I wa nted to do
. I saw the poli ce officer open his car door and he pointed a . . . pistol at the van. . . . When I saw the pistol, I thought I put m y foot on the brake , I’m not sure if I did or not. I let g o of the steering wheel an d ducked st raight down with my arm s covering my face. I the n heard and fel t the crash and knew I’d hit something. I thought I was swerving to the right

and would miss the police office r when I d ucked my hea d.

Based upon the eviden ce presented at tri al, thejury found the Appell ant guilty of felony

murder, fel ony theft

of the mini van, misd emeanor theft of a license plate, and evading arrest.8 I. Juri sdicti on

In his first

issue, t he Appellant c hallengeshis convic tion for felon y theft of the minivan which establ ished the predicate of fense for hi s first

degree murde r convicti on. The A ppellant, citi ng only an Il linois case as authori ty, arg ues that t he State of Ten nessee lacked j urisdic tion to pr

osecute the Appel lant for a felony committed in Florida a nd a killing c omm itted in Te nness ee. A fortiori , if th ere was no theft, t here could be no felony murder convicti on. He offers n o ar gument or explanati on in support of his concl usory statem ent. As such , he ha s effec tively waived review of

this i ssue. Ten n. R. App. P . 27( a)(7 ); Te nn. Ct . Cri m. App. R. 10(b). Notwithstan ding waive r, we elect to proceed upon t he merits of the Appe llant’s conte ntion.

Any person is liable to pu nishm ent unde r the la ws of this state for

an offense com mitted either w holly or partly within th is state. See Tenn . Code Ann. § 39-11-103 (a). Rule 1 8 of the Ten ness ee Ru les of C rimina l Proce dure p rovide s, in part: (a) . . . of

fenses shallbe prosecuted i n the c ount y where the offense was committed. (d) Offense s com mitted w holly or in pa rt outside th is sta te, unde r circumstancesthat give this state jurisdiction to prosecu te the offender, may be pros ecut ed in any county in which an element of t he offense occurs, or in the ca se of a n offen se co mm itted wh olly outside th is state in any cou nty in which the offend er is found
. There is n o dis putethat De puty Mullins was killed in S ullivan County, Tennessee. Thus, the State has ju risdict ion over t his homicide. However, the pena l laws of a parti cular sover eignty usual ly have no ex trater ritor ial eff

ect and, si nce one sovereig nty cannot enforce the penal l aws of another or punish offenses committed9

in and against anot her soverei gnty, i t is a gener al rule of c riminal law that the courts of a particul ar soverei gnty have nojurisdi ction of offens es co mm itted ou tside th eir
sover eign’s territorial jurisdictio n. 22 C.J .S. Criminal Law § 161(a ) (1989). See also Coffee v. Peterbil t of Nashvill e, Inc. , 795 S.W.2d 656, 659 (Tenn. 1990); 21 A M . J UR . 2 D Criminal

Law § 344 (1981); P. H. Vartanian, Annota tion, Larcen y in Othe r State
or Country , 156 A.L.R. 862, 863 (1945). Thu s, altho ugh a criminal may be found within its territorial bord ers, a sta te will not attempt t o punish a person f

or the
comm ission in an other sta te of a crime which is consummated and which is not of such continui ng nature as to constit ute an inf ringement of t he laws of t he forum after the alleged c riminal ha s entere d its territorial jurisd iction. See P.H. Vartani an, Annotation, Larceny

in Other S tate or Co unty, A.L.R. at 863. The Appellant

contends that, since the felony theft of the Comacho van occur red in the State of Flori da, the State of Tennessee lacks jurisdict ion over the offense. Again, if t here is n o th eft, there can be no felony murde r. Accordingly , we are confr onted with t he following question: Is a perso n crim inally liabl e for thef t under our cur rent cri minal code if that person steals pr

operty outside thi s state and br ings the stolen prope rt y into Tennessee? We answer in the aff irmative.

According to an a ncien t rule of c omm on law , if a ma n stole good s in
one county and carried them into another, he mi ght be indi cted and tried in either; because, for con venien ce sa ke, it was easier to try the offend er in the coun ty in which he was apprehended, al though the l aw of venue requi red that t he crime b e tried by a jury

of the vi cinage
. See P.H. Vartania n, Anno tation, Larceny in Other State or Country , 156 A.L.R. at 864, foot note 3 (cit ing State v. Le Blanch , 31 N.J.L. 82 (186 4)). Thu s, a legal fiction was cre ated, that is ,10 the continued possession of stolen property, animo furandi , is, at every step, a new caption and t hat therefor e the steal ing of proper ty in one county of the State and taki ng it i nto another was l arceny in t he latter county. Every moment’s possess ion bythe thief is a conti nuance of the trespass, and am ounts, in le gal conte mplation , to a new ca ption and asporta tion. State v. Matt hews , 87 Tenn. 689, 691-9 2, 11 S.W. 793, 793-94 ( 1889) (citations omitted). See also 21 A M . J UR . 2d Criminal Law § 353; P.H. Vartanian, Annotat ion, Larceny in O ther State or Co untry , 156 A.L.R. at 866.

The State of Tennessee, which had at one time rejec ted this theory, see Simpson v. State , 23 Tenn . (4 Hum.) 455 (18 44), legi timatiz ed this f iction of the
common law through theenactme nt of statutes providing in substance that “[w]here property is stol en i n another S tate an d brou ght into this Sta te, the ju risdictio n is in any county into which the property is brou ght,” Matthews , 87 Tenn. at 690, 11 S.W
. at 793 (qu oting Te nn. Co de § 49 77 (185 7)); see also Henry v. S tate , 47 Tenn . (7 Cold.) 331, 33 3 (1870 ), and b y mak ing it an offens e in this state to “bring in to this state personal pro perty s tol en in another state, k nowing the same to have been stolen.” See Tenn . Code § 4697 (1857); s ee als o Tenn. Code Ann. § 39-3-1115 ( repealed

1989). This crime is author ized, not for thecri me committed in t he other state, but for th e larce ny com mitted within th is state by the a ct of brin g ing stol en property in to the jurisd iction. See 50 A M . J UR . 2d Larceny § 126 (1 995).
Argument may be made that, wi th the enact ment of the 1989 Cri minal Code, base d large ly on the Model Penal Code, Tennessee abolished the offens e of bringing stolen pro perty into this state. W e hold to the contrary. With the passage of Tennessee Code Annotated secti on 39-14-101 et seq. , the legislature eliminated the tradit ional di stinct ions between various unlawf ul takings i n favor of one general11

theft statute. State v. Byrd , No. 03S 01-970 5-CR -00057 , slip op. at 4, S evier Co unty (Ten n., Kno xville (he ard at K ingsp ort), Ap ril 27, 1998). The r eason for

the change
was to replace “antiquated and confusing statutes wit h a modern easily understood langua ge.” Sentencing Commission Comments, Tenn. Code Ann. § 39- 14-10 1. Although the new chapter eliminated th e antiq uated termin ology o f the old , it continuesto prohibit t he criminal conduct contemplated by the f ormer theft statutes, see Byrd , No. 0 3S01 -9705 -CR- 0005 7, slip op. at4, thereby , clearly encompassing the offense o f bringing s tolen pro perty into the state. See Tenn. Code Ann. § 39-3- 1115. Tennessee Code Anno tated section 39-14-101 provi des: Conduct denominated as theft in this par t constitutes a single offense embracing the separate offenses heretofore known as: embe zzlem ent, false pretens e, f ra udulent conver sion, l arceny, receiving/ concealing stolen proper

ty, and other

similar offenses. (emph asis add ed).

In construin g that "bring ing stolen property into this state" is i ncluded as an "other si milar offense" withi n the general theft pr ovision of

the current

code, we rely upon references

to judi cial deci sions and common law interpretations to eff ect the objec tives of the c ode. See Tenn. Code Ann. § 39-11-104.

W hile the gen eral theft sta tu te proh ib its the same conduct as the former, the State is no long er require d to prove the elem ents of the former in order to gain conviction un der the curr ent statute. By its terms, Tennessee Code Annotated section 3 9-14-10 3 provide s that “[a] pe rson co mm its theft of property if, with intent t

o deprive t he owner of proper ty, t he person knowingl y obtains or exercisescontrol ov

er the proper

ty wit hout the owner’ s effect ive consent. ” In the presentcase, it is un disputed that th e App ella nt exercised co ntrol over Nora12

Com acho ’s 1995 Dodge Caravan, wit hout Ms. Comacho’s consent, while i n Sulliv an County, Tennessee. See Tenn. Code Ann. § 39-11 -103; T enn. R . Crim . P. 18. T his issue is w ithout me rit.

II. Suffi ciency of the Evidence

Next, the Appellant a rgues that the e vidence is insufficient to su pport his convicti on for fel ony murder com mitted duri ng the perpetr ation of a

theft. The Appellant

does not contest

the suffi ciency of

the evidence resulti ng in his conv iction s forfelony t heft, mis demeanor theft, and evading arr est. Rely ing extensively upon a prior opinion by a panel of this cou rt, State v. Gilli am , C.C. A. No. 03-C- 01-91 09-CR0 0287, Ham ilton Cou nty (Ten n. Crim. A pp., Kno xville, Apr. 20, 1 992), perm. to appeal denied , (Tenn . Sept. 21, 1992), he limits his suffici ency issue to whet her the hom icide w as m erely incidental, and not in perpetr

ation of, the underly ing offens e. Additionally, he challenges t he constit utiona lity of the felony murder statute. Our supr eme court has, on previous occasions, addr essed this i ssue and de ter mi ned thatthe felon y murder stat ute is “a legiti mate and constit utional legislative fun ction.” State v. Walke r , 893 S.W.2d 429, 430 (Tenn. 19 95) (emphasis added) . The Appellant

questionsthe trial court’s interpretation of the lan guage “an y . . . theft” to includemisdem eanor thefts. A p anel of this court has recently addres sed this very argument and, rely ing upon Walker , concluded that it was t he legislature ’s intent to encompass all theft

offenses, regardlessof moneta ry value of t he property stolen, within the felony m urder sta tute. See State v. Harris , C.C. A. No. 02 C01-96 03-CR0 0095 (Tenn. Crim. A pp., Jack son, De c. 3, 1997 ); Walker , 893 S.W.2d at 430 (citi ng State v. Hop per , 695 S.W .2d 530 , 535 (T enn. C rim. App . 1985)); see also13

State v. Ra ndo lph , 676 S.W.2d 943, 946 (Tenn. 19 84). Thus, we r eject th e Appellant’ s constit utional challenge to Tennessee’s fel ony murder stat ute.

When there is a c hallenge to the verdict based upon the suff iciency of the evidence, this cour t must revi ew the evidence in the l ight most favorable to the p rosecution and determine whet her “any rat ional trier of f act could have found th e essentialelements of t he crime beyond a reasonable doubt.” Jack son v. V irginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 278 9 (1979 ); St ate v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13( e). We do no t reweigh or reeval uate the evidence; these are iss ues re solv ed by the trier of fac t. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Furthermore, a guilty verdict accredits the test imony of the witnes ses for the State, and a pres umption of gui lt repl aces the presumpti on of innocen ce. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973) . Guilt may be predicatedupon direct evidence, c ircumstanti al evidence, or a combination of direct and circums tantial evide nce. State v. Carey , 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995).

In order to determ ine the issue of su fficiency of the evid ence in this case, the control ling s tat utes must be analyzed. Appellant was convicted of first degree murd er in the perpetr ation of a

theft. Tennessee Code Annotated secti on 39-13-202 emb odies what is commonly referr ed to as “fel ony murder” and def ines it in part as “[a ] kill ing of ano ther com mitted in th e perpe tration of or a ttempt to perpetrate any . . . theft .” Tenn. Code Ann. § 39- 13-202(a)(2)(empha sis added). A person is guilty of the c rime of the ft if “wi th intent to deprive the owner of prop erty, the person know ingly obtains or exercise s control o ver the prop erty without t he
owne r’s effective consent.” Tenn. Code Ann. § 39-1 4-103 (em phasis add ed). Prior14

to the 1989 revi sion of t he criminalcode, the onl y type of theft i ncluded in t he felony
m urders tatute wa s larceny
. See Tenn. Code Ann. § 39-2-202 ( Supp. 1982) (repeale d 1989 ).

I t is well-est ablished t hat the fundamental role of this Court

in constr uing statutes is to ascer tain and g ive effect to legisl ative intent. State v. Sliger , 846 S.W.2d 262, 263 (Tenn. 1993). The Legislature is pr esu me d to know the exi sting state of the law w hen it ena cts a statu te. Owen s v. State , 908 S. W. 2 d 923, 926 (Tenn. 1995). Moreover , the Legi slature has said that

statutes

must “be constr ued according to the fa ir impo rt of their terms , in cludin g reference to judici al decisi ons and common law interpretati ons.” Tenn. Code Ann. § 39-11-104. Where, as her e, the intent of

the Legislature appears clear when reading theordinary meaning of the st atutory language, this Court should not limit or extend that language’s import , regardless of h ow wemi ght pe rceive the equities o f the caus e. Overma n v. Overman , 570 S.W.2d 857, 859 (Tenn. 1978). By the Legisl ature not l imitingthe term “theft” in the f

elony murder statute, t hen we can only concl ude tha t the Legislature intende d it to em body a ll types o f theft, inc luding all types forme rly defined as som ething oth er than larc eny.

As noted above , the Ap pellan t princip ally relies upon the case of State
v. Gilli am , C.C.A. No. 03- C-01-9109-CR-00 287, H amilton C ounty (T enn. C rim. App ., Knoxvill e, Apr. 20, 1 992), perm. to appeal denied , (Tenn ., Sept. 21, 1992) . The instant cas e, h owever, can be d ist ing uis hed f rom Gilli am . In Gil liam , the court focused on the fact that t he underlying felony of theft was theft by taking and that th e Appe llant’s purpose was to stea l the ca r and th at this goal had been accompli shed. Id
. at 3. In t he instant case, the t heft

with which Ap pellant was charged and15

convictedwas based on his exercise of controlover the s tolen pro perty without t he
owne r’s effective consent. The police chase was already in progress

when the cri me of theft (exerc ising con tr ol o ver the stolen propert y) occurred in Sullivan County, Tennessee. Because Appellant was drivi ng the stol en vehicle at theti me of the incident, he was certainly exerci sing co ntrol over the s tolen pro perty. See Tenn. Code A nn. § 39-14-1 03. The A ppellant exp lai ned th at “[t]he reaso n I didn ’t stop [duri ng the pursui t by law enf orcement offi cials]was because I was scar ed

. . . allI wanted to d o was get on the i nterstate and get out of the van a nd l eave it there and get away from it .” Obviously, from Appellant’s statement, he was in the act of exerci sing contr

ol over the stol en property as he admitted t hat he wanted to get rid of property of which he was not t he owner. Furt hermore, the i nstant case can be distin guished from Gilli am in that the offi cers involved here knew that the veh icle was stolen, regardless of the fact that the initial atte mpt to pull the vehicl e over was for a traff ic viol ation.

We acknowledge that the kill ing must have been co mm itt ed “in pursuance of the unl awful act, and not coll ateral to it.” State v. Farmer , 296 S.W.2d 879, 883 (Tenn. 1956) . Ho wever, we disagree wi th the Appell ant’s argument that his actions in the pres ent case we re collateral to t he homic ide and bore no intimate relation ship to the underlying f elony of theft. A homicide is committed duringthe perpetrat ion of a fel ony if t he hom icid e is committed within the res gestae of the felony. See Smith v. State , 354 S.W.2d 450, 452 (Ten n. 1961). W ithin the context of the felon y murder rul e, the res gest ae require s that thefelony and homi cide be part of a conti nuous transaction, that the h omicide be incident to the felony, or that there be no brea k in the ch ain of eve nts betw een the felony an d the ho micide. See gene rally Erwin S. Barbre, Annotation, What Constitutes Ter mination of

Felony for16

Purpose of Felo ny-M urder Rule , 58 A.L.R.3d 85 1, 856, 865 -874 (1974). The res gestae embraces not only t he actual facts of t he transacti on and the cir cumstances surrounding it, but

also the matters i mmediately antecedent to the transacti on and having a directcausa l connec tion with it, as well as acts immediately followi ng it and
so closely co nnecte d as to form in reality a pa rt of the occ urrence . Payne v. State , 406 P.2d 922, 925 (Nev. 1965). Thus, t he re s gestae of the crime begi ns at the pointwhe r e an indic table attem pt is reach ed, and ends w here the chain of e vents between the initia l crime and th e hom icide is broken
. See Parkerv. State , 570 So. 2d 104 8, 1051 (Fla. Dist. C t. App. 1 1 990); State v. Rider , 625 P.2d 425, 430 -431 (Kan. 1981); Payne , 406 P.2 d at 924 ; Com mon wealth v. Kelly , 10 A.2d 431, 433 (Pa. 1940).

The defendant’s actionsmust b e one c ontinuo us integra ted attem pt to succ essfu lly com plete h is c rime a nd es cape . Facto rs to be cons idered in determiningwhether ther e has been a break in the chain of circ umstances inclu de the rela tionshi p between the underlying fel ony and the homici de in point of time, place, an d caus al relations hip. Farmer , 296 S.W.2d at 883. I n State v. Terry , our supr eme court discuss ed t he following factor s relati ng to the rel ationshi p between the underlyi ng cri me and the homic ide: whe ther the victim was a w itness to th e theftrelated crime; w hether th e vict im wa s in close pr oximity to the cri me; and whether the victi m was killed because he m ight have t ried to t hwart the t heft, expose the theft, or interfere in any way with the commission of the t heft. 813 S. W.2d 420, 424 (Tenn. 1991 ). In the c ase o f flight, an impo rtant co nside ration is whether thefleeing felon has reache d a place of temp orary safe ty. See People v. Fo rd , 416 P.2d 132, 141 (Cal. 196 6), cert. deni ed , 385 U.S. 1018, 87 S. Ct. 737 (1967), overruled in part by , Peop le v. Satc hell , 489 P.2 d 1361 (Cal. 197 1); People v. Boss , 290 P. 881, 88317

(Cal. 1930); Parker , 570 So. 2d at 1051 (ci ting LaFave, Substantive Cr iminal Law

§ 7.5 (1986)); Lamp kin v. State , 808 P.2d 694, 696 (Okla. Crim. App. 1991). I f these factors, considered i n light of the circ umstances of the par ticula r incide nt, reve al a defin ite brea k in the chai n of events, eliminat ing the possi bilit y of one conti nuous transacti on from the initial at tempt of theunderlyi ng felony to the homici de, then the felony m urder rule canno t be app lied.

The police of

ficer whowas kill ed in the i nstant case wasa witness to the theft (as that term is defi ned by the Legis lature) and he was standing i n the pathway of the stolen van as A ppellant e xercised control ove r that van b y driving it right into the offic er. The victi m was attempting to apprehend Appellan t during t he commission of the theft. T he th eft pl ayed a n integ ral role in the po lice office r’s death. The thef

t was not col lateralto the homici de.

The Appella nt a rgues t hat it i s conceivabl e that a st rict and l iteral interpr etation of the theft sta tute as it relates t o felony murder

could sometimes l ead to “irrational ou tc o mes n ot contem plated by either the le gislature o r the cou rts.” Howeve r, Appellant’ s case is not one of those s ituations. Sufficient e vidence exists to supp ort the con viction for felon y murd er, and th is issue is w ithout me rit.

III. Special Jur

y Instr uctions
Appellant

submitted seven requests for jury i nstructi ons, four of which related to the j ury’s deter mi nation of whether the ki lling occurred duri ng the perpetrat ion of the thef t. The issue befor

e us only i nvolves t he four request s dealing with the perpetr

ation of t he theft. The trialcourt granted one of tho se reques ts in18

part, as that part

followedthe Tennessee Pattern I nstructi on, but it wholly deni ed the other thre e.

The trialcourt’s jury i nstructi on on a kill ing committed i n the perpetr ation of a theft pro vided th at the k illing m ust ha ve bee n “clos ely connected to t he alleged theft and was not a separate, disti nct and indepe ndent e vent.” Appellant s ubmitted instruct ions which expanded on t he explanati on of the te rm “perpetrat ion” (proposed jury instruct ions 1, 5, 6 and 7). See , e.g. , Terry , 813 S.W .2d 420 ; Farmer , 296 S.W .2d 879 ; Gilli am , C.C.A. N o. 03-C -01-910 9-CR -00287
.

In Tennessee, the trialcourt must charge the j ury completely on the law applicab le to the facts of the case
. Poe v. S tate , 212 Tenn. 413, 370 S. W.2d 488, 491 (Tenn . 1963). Althou gh sp ecial re ques ts usu ally are entertained if fundamental to the case, t he trialjudge may denya special r equest when the exist ing inst ructions fully cover the law on a s ubject. State v. Bryant , 654 S.W .2d 389, 390 (Tenn. 198 3). S pecial jury instructions need not be given when theexisti ng instruc tions are a correct state men t of the la w and adeq uately c over th e sub ject m atter co ntaine d in the special r

eques t. Id ; see also State v. Taylor , 771 S.W.2d 387, 399 (Tenn. 1989).

The statute p roscribi ng felony murder defines t he crime as “[a] kil ling of another committed in t he perpetrat ion of or attempt to perpet rate” any of several enumerated offenses. Te nn. Code Ann. § 39-1 3-202(a). As the court’s jury instruct ions elaborated, our law require s that th e killing b e “clos ely connected” to the felony and not be a “separ

ate, distinct and indepe ndent e vent.” Althou gh Ap pellan t’s instruct ions might have furt her elab orated o n the not ion of “clos ely conn ected, ” we19

nevertheless conclude that the inst ructionsgiv en by the trialcourt were a correct statementof the l aw and adequately covered the s ub ject m atter co ntaine d in Appe llant’s special reque sts. We therefore, hold that the tri al court d id not e rr in refusing to give Appellant’s sp ecially requested ins tru ctio ns. This i ssue is wit hout merit.

IV. Lesser I ncluded Offenses

In its charge to the jury, the trial court instru cted the jury on the offenses of felony m urder, se cond d egree m urder, v olu ntary manslaughter, reckl ess homicide, and criminal ly negli gent homicide. Appellant contends tha t the trial court erred in ch arging th e lesser o ffenses to the crime of felony m urder.

Appellant

has not demonstrated th at he was prejudi ced in any way by the trial cou rt’s instructi ons on these offenses. Furthermore, this Court does not see how any prejudice could exi st since Appellant was convicted of the highest offense forwhich he wa s cha rged. A s the S tate co rrectly points ou t, this is certain ly not a case where the Appel lant can argue that he could have been found gui lty ei ther of the greatest of

fense or nothi ng at all, and that a ver dict of a lesser of

fense prejudi ced him by permitt ing a convi ction of an offense whi ch liesbetween the two extremes. The jury rejected al l of the lesser of fenses and c onvicte d him of the greatest off ense charged. Therefore, Appel lant was not prejud iced by the trialcourt chargi ng the lesser includ ed offenses t o felony murder . Even if there was any er ror in t he trial court charging the lesser included of

fenses, t hat error

woul d be ha rmle ss. Tenn. R. App. P . 36(b); Te nn. R. C rim. P. 52 (a). This iss ue is witho ut merit.20 V. Sentencing
Appellant

argues that the trial co urt erred in allowing th e jury to sentence him to life i n prison. When the jury announced its verdict of guilty

of first degree m urder, the foreman responded to t he trialcourt that the jury had fixed t he sentence at life i mprisonment. The trial judge then pol led each juror, and each juror answered affirma tiv ely that he or she had found Appel lant gui lty of first degree murder and had set the sentence at li fe impriso nment. After the jury was dismissed, the trialjudge ad dresse d Appe llant and s tated that b ased o n the jury’s ve rdict, the trialcourt found him guilt y of fi rst degreem urder an d sente nced h im to life imprison ment.

Under Tennessee Code Annotated secti on 39-13-202(c) , the mini mum sentence avai lable for a App ellant who is convicte d of first deg ree mu rder is life imprison ment. Tennessee Code Annotated sect ion 39-13-208( c) does provi de that
w here n o notice is g iven of the S tate’s inten t to seek th e death penalty o r life imprisonmentwithout t he possibil ity of parole, t hen upon convict ion forfirst degree murder, the App ellant sha ll be sente nced to imprisonment for life by the trial co urt. The State in this ca se did not seek the deat h penalty or life imprisonment wi thout the possibility of parole. Therefore, Appella nt asserts that si nce the stat ute clearly states thatthe court must render such a sentencing d ecision, then it was e rror for the court to allow the jury to do so . H owever, thefact that the jury indicated that it

set the sentence at life impriso nmen t is imma terial. Appe llant r eceiv ed the minimum sentence under the law and can therefore show no prejudicefrom the fact that the jury stated that i t i mpos ed t he mi nimu m s entence prior to the t rial court al so imposing the mini mum sentence.21 Appellant

further argues that the tri al court erred in instructing the jury thata Appellant who receives a s entence o f life impris onm ent sh all not b e eligib le forparole consi deration unt il the Appellant has served at

least 25 full calenda r years of that s entence. However, upon revi ew of the rec ord, it ap pears that no t only did defense counsel consent to the i nstructi on, but act ively insisted that the instruct ion shou ld in fact b e given to the ju ry. Spe cif ically, d efense counsel quoted from Tennessee Code Annota te d s ection 39-13-204(e)(2) stating, “[t] he jury shal l be instructed that a defe ndant who rec eives a se ntence of impriso nmen t for life shall not be eligible for paro le con sidera tion un til the defendant has served at least twenty-five (25) full calendar

years of such sente nce.” H e wen t on to s ay, “If tha t is not, if th at’s not, if the Jury’s not

instructed on that, we think that’s a rea l problem.” Again, it was defense counsel who brough t this statute to the cour t’s attention, a nd whe n the Sta te and the co urt sub sequ ently agreed that it should be given, the trial ju dge a ccord ingly added this to the jury

charge. A part

y may not, i n effect, invite or condone acti on and then claim the act ion to be an er rorthat requi res reli ef to that party. See Tenn. R. App. P . 36(a). Th is issue is w ithout me rit.

Having found that Appellant can not prevai l on any of his is sues, we affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:22

_________________________________ DAVID G. HAYES, Judge

_________________________________ DAVID H. WELLES, Judge