### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE July 25, 2000 Sess

ion
STATE OF TENNESSEE v. MATTHEW SC OTT JOHNSTON

Direct Appeal from the Criminal Court for Roane County

No. 11624A E. Eugene Eblen, Judge

April 6, 2001

No. E1999-00496-CCA-R3-CD

A Roane County jury convicted the Defe ndant of t heft of an automobile valued at greater than $1,000.00, a Cl ass D fel ony. He now appeals, arguing that the trial court erred in failing to instruct the jury on the lesser-included offense of unauthorized use of an automobile. We conclude that the trial court erred in failing to instruct the jury on the requested lesser-included offense but that the
error was harmless beyond a reasonable doubt. Therefore , we affirm the judgment of the trial court. Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which J OS EPH M. T IPTON and J OHN E VERETT W ILLI AMS , JJ., joined.

Joe Walker, District

Public Defender; Walter B. Johnson, II, Assistant Public Defender (on appeal); and Roland Cowden, AssistantPublic Defender (at trial); for the appellant, Matthew Scott Johnston.

Pa ul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney Gen eral; J

. Scott McCluen, District

Attorney General; and

D. Roger Delp, A

ssistant District At

torney Gen

eral; for the appellee, State of Tennessee.
OPINION

Facts

In 1996, Ronald Muecke owned a 1979 Porsche 928 automobile, which was advertised for salein aKnoxville newspaper. On June 7, 1996, the Defendant, Matthew Scott Johnston, contacted Muecke in response to the ad vertisement. The Defendant went to see the automobile at Muecke Marine and Tire in Roane C ounty, Tenne

ssee, where Mue

cke worked. Aft

er so m e negotiati ng, Muecke agreed to sell

the vehicle to the Defendant for $8,200.00, with the Defendant to pay $600.00 imm edi ate ly; $400.00 the next day; and the balance of $7,200.00 in three monthly pa yments of1 The transcript indic ates that the do cuments related to the sa le were introd uced as an exhibit, but the e xhibit

is not included in the record on appe al.
-2- $2,400.00 each, beginning on June 30, 1996. Muecke had his secretary prepare a “Bill of Sale” 1 that set out the terms of the transac t ion, which include d a two-week gr

ace period for t

he monthly payments and an acceleration clause. The title of the vehicle was to remain with Muecke until the Defendant paid i

n full. Although not stated in the Bill of Sale, Mueckerequired the De fendant to obtain insurance
on the vehicle before taking possession. Rather than o btaining insurance on the vehicle, the Defendant

made a rrang ements with a f riend, Mike Jo lley, whe reby Jolley would pretend to be “JolleyInsurance” when called by Muecke. Muecke’s father, Jack Muecke, called Jolley and, after giving the appropriate information about the vehicle to Jolley

, was told by Jolley that the vehicle was covered by insurance. A lthough Jolley was not a n insurance ag

ent, he apparently was convincing enough to deceive Jack Muecke.

Based on the insurance deception and his receipt of $600 .00 cash fr om the Defendant , Muecke gave the

Defendant possession of thevehicle on June 7, 1996, the day the agreement was reached. The next week, Muecke received an additional sum of $380.00 from

the Defendant in

the form of a money order. The Defendant made no other payments to Muecke for the vehicle. Between June 7, 1996 and Jul y 29, 1996, Muecke and his father learned that “Jolley Insurance”did not exist and that the Defendant did not wo rk where he had said he did on June 7, 1996. When the grace period for the June 30, 1996 payment expired, Muecke began looking for the Defendant

in an attempt to recover posses sion of the vehicle. Muecke eventually spoke to the Defendant

and told him to pay the full balance due or return pos session of the vehi cle to Muecke. When the vehicle was not returned, Muecke obtained an arrest warrant aga inst the Defendant for theft of the vehicle.

The Defendant had possession of the vehicle from June 7, 1996 until

July 29, 1996. O

n July 29, 1996, the Defendant returned the vehicle to Muecke and was immediately arrested for the theft of the vehicle. On the da

y of his arr

est, the Defenda

nt was twenty

-nine days l

ate in paying th

e first payment of $2,400.00 a nd tw o days from becoming late on the second pay ment of $2,400.00. Muecke asserted

at trial that when the vehicle was returned on July 29, 1996, it was damaged in the amount of $4,572.52, and he stated that he later s old the ve hicle (presumably in its damaged condition) for $4,500.00. Analysis The Defendant was charged wi t h and convicted of theft of property, which is defined as follows: “ A pe rson co mmits theft of property if, with intent to deprive the owner of property , the person knowingly obtains or ex er cises control over the property without the owner’s effective consent.” Tenn. Code Ann. § 39- 14-1 03. The lesser-included offense at issue in this case, the unauthorized use of an automobil e, is defined as f

ollows: “ A person commits a C lass A misdemeanor

who takes another’s automobile . . . without the consent of the owner and the person does not have the intent

to deprive the owner thereof.” Id. § 39-14-106. As the State points out in-3-

its brief, the difference between the two offenses is whether there is an intent to deprive the rightful
own er of the pro pert y.
The State and the Def

endant agree that

in this case the una

uthorized use of a v

ehicle is a lesser-included

offense of thef

t of property . The issue, then, i s whether th

e evidence in this

case justified a jury instruction on the lesser-include

d offense. Our su

preme court, in State v. Burns , 6 S.W.2d 453 (Tenn. 1999), adopted the following two-step process for determining if the evidence justifies a jury

instruction on the le

sser-included of

fense:
First, the trial court must de termine whether

any eviden

ce exists that reas

onable minds could accept

as to the lesser-included offense. In making this determination, the trial court must view the evidence liberally in the light most fav o rable to the existence of the lesser-included offense witho ut making any judgments on the credibility

of such evidence. Second, the trial court must determine if the evidence, viewedin this l ight, is legally sufficient to support a conviction for the lesserincluded offense.

Id. at 469.

In applying the Burns analysis to th is case, it is clea

r that evidence e

xists that reasonabl

e minds could accept as to the lesser-includ ed offense of unauthorized use of a vehicle and that the evidence is legally sufficient to support a conv iction for the unauthorized use of a vehicle. Our review of the evidence

at trial, viewed l

iberally in t

he light most favo

rable to the lesse

r -included offense, reveals the following: First, the Defendant e ntered into a cont

ract with Ronald Me

ucke to purchase the vehicle. Although there was no contract provision requiring the Defendant to obta

in insurance, it is clear that possession of the vehicle was obtained b y the Defendant t hrough deception concerning insurance cove rage. Theref

ore, there is

no question that the Defenda nt took the vehicle from Muecke witho

ut Muecke’s eff

ective consent.
Second, the jury heard evidence supporting a possible conclus

ion that the Defen

dant, despite having deceptively obtained possession of the vehicle wit hout the owner’s e

ffective conse

nt, intended to pay for th

e vehicle pursua

nt to the terms of the contract and to receive ti

tle to the vehicle up on payment in full. The terms of the contract for sale and the pay ment of $980.00 to Mueck e could support a theory

that the Defendant intended to pay for the vehicle. In addition, the contract provided that if

the Defendant could not pay for the vehicle as agreed, he wo

uld return the veh

icle to Muecke. Upon becoming $2,400.00 behind in his contractual obligation and within two days of becoming $4,800.00 behind, t he Defendant re

turned th e veh icle to Muecke. A gain, liberally construed, this evidence cou ld be used to infer

that th e Defendant did not intend to unla wfully deprive Muecke of the vehicle.

Based upon the evidence presented at trial and subject to the judgment of the jury as to the credibility

of such evidence

, the jury co

uld have conclude

d that the Defend

ant was g uilty of the unauthorized use of the vehicle because he took the vehicle

without the owner’s effective consent-4-

on June 7, 1996, but did not have “the intent to deprive the owner thereof.” Therefore,we conclude that the trial court erred

by failing to instruct the jury on the lesser-included offense of unauthorized use of a vehicle.

The Tennessee Supreme Court has held that the fai lure to instruct on a lesser-included offense is subject to a harmless error analysis. See State v. Williams , 977 S.W.2d 101, 105 (Tenn. 1998). Reversal is only

required “if the

error affirma

tively appe

ars to have affected

the result of the trial on the merits, or in other words, reversal is required if the error more probably than

not affected the judgment to the defendant’s prejudice.” Id. This standard of appellate review was reaffirmed by our Supreme Court in State v. Swindle , 30 S.W.3d 289, 293 (Tenn. 2000). However, there has been somedisagreeme

nt among members of this Court concerning the proper standard for determining whether

a trial court’s f

ailure to charg

e a lesser-inclu

ded offense con

stitutes reversib

le
or harmless error. State v. Cornelius Michael Hyde , No. E2000 -00042-CC

A-R3-CD,

2000 WL 1877490, at *11 n.5 (Tenn. Crim. Ap p., Knoxville, Dec.

28, 2000); see State v. Jumbo Kuri , No. M1999- 00638 -CCA-R3-CD, 2000 WL 680373, at *6-7 (Tenn. Crim. App., Nashville, May 25, 2000); State v. Khanh V. Le , No. W1998-00637-C CA-R3-CD , 2000 WL 284425, at *8-9 (Tenn. Crim. App., Jackson, Mar. 9, 2000); State v. Curtis J. Ely , No. 03C01-

9806-CC-0

0215, 1999

WL 997505, at

*8-10 (Tenn. Crim. App., Knoxville, Nov. 4, 1999) (Wade, J. dissenting), perm. app. granted (Tenn., May 22, 2000). A panel of this Court has recently held that a defendant’s right to accurate jury

instructions on all a

ppropriate

lesser-include

d offenses is cons

titutionally

based, and
error in this regard is

reversible unle

ss the State can demonstrate beyond a reasonable doubt that the
error didnot affect the outcome of the trial. State v. Jason Thomas Beeler , No. W1999-01417-CCAR3-CD, 2000 WL 1670945, at *26 (Tenn. Crim. App., Jackson, Nov. 2, 2000).

We conclude that in th

is case, the jury

instruction error

is harmless under

th e Williams standardor the constitutional standar d. The Defendan t clearly o btained possession

of the vehicle withoutthe effective consent of the owner, Ronald Muecke. The Defendant,

with the help of a third person, falsely convinced both Ronald Muecke and his father, J ack Muecke, that the vehicle was insured when the Defendant obtained possession. The Defendant then kept and had the use of the vehicle for fifty-two days. There is no evidence that the D efendant complied with or intend ed to comply with the terms of the sal es contr act. The uncontradicted evidence at trial showed that the Defendant’s return of the vehicle was the direct result of his learning t

hat failure to re

turn the vehicle immediately

could result in his

arrest. There was evidence that the vehicle was returned damag ed in the amount of $4,572.52, an amount that is more than on e-half of the purchase price, and the damages clearly resulted in a substantial diminishment of the value of the vehicle.

Add iti ona lly, the “intent to deprive the owner of property” that is a necessary element of the crime of theft of property does not necessarily require an intent

to deprive the owner of the property perm anen tly. It is sufficient if the deprivation is “for such period . . . as to substantially diminish the value or enjoyment of the property to the owne r” or to “use it . . . under

circumstances th

at make its restoration unlikely.” Tenn. Code Ann. § 39-11-106(8). The j ur y was prese nted evidence in

this
case that the Defenda

nt obtained possess

ion of a vehicle by

fraud and used th

e vehic le until the
owner “tracked him

down” and

threatened to have him arrested if he failed to return the vehicle. The-5-

jury fo un d beyond a reasonable doubt, based on the evidence, that the Def endant obtained possession of the vehicle with the requisite intent for theft.

For the above stated reasons, when we apply the Williams standard to this case, we cannot sa y that the fai lure to instruct on u nauthorized use mor

e probably

than not affecte

d the judgment. In applying the constitutional-based standard, we also conclude that the State has dem onstrated be yond a reasonable doubt that the trial court’s failure to instruct the jury on the lesser-included offense of unauthorized use of a vehicle did not affect the ou tco me of the trial. Accordingly, we AFFIRM the ju

dgment of the tri

al court.

________________________________________

ROBERT W. WEDEMEYER, JUDGE