# FILED
October 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE AUGUST 1998 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9707-CR-00316 Appellee, ) ) Davidson County v. ) ) Honorable Seth Norman, Judge ANTONIO SHELTON, ) ) (Theft of Prope rty) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Thomas Edward Nelson John Knox Walkup 211 Third Avenue, North Attorney General & Repor ter Nashville, TN 37201 425 Fifth Avenue, North Nashville, TN 37243-0493 Lisa A. Naylor Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General 222 Second Avenue, North, Suit e 500 Nashville, TN 37201-1649 James W. Milam Assistant District A

ttorney General 222 Second Avenue, North, Suit e 500 Nashville, TN 37201-1649

OPINION FILED: ____________________________

___ REVERSED AND REMAND ED FOR A NEW TRIAL L. T. LAFFERTY, SENIOR JU DGE2 

### OPINION
The defendant, Antonio Shelton, appeals as of r ight from his con vi ction by a Davidson County

jury fo r theft

of property worth more than $1,000, but less than $10,000,
a Class D felony, and impose d a fine of $1,000 . The defe ndant was sentenc ed to two ye ars as a R ange I offender and placed on community corrections. The defendant complains: (1) The trial court erred in not charging the jury on the lesser include d offense of unauthorized use of automobiles and other vehicle s, to wit: joy-riding. (2) The trial court erred i n den ying the defendant’s oral motion for judg ment of acqu ittal at the conclusion of the State’s cas e, as well as the defendant’s subsequent written moti on at the motion for new trial hearing. (3) The trial court erred in not charging T.P.I. Crim. 42.19 relative to inferences in conjunction w ith chargingthe juryT.P.I. Crim

. 42.20, inference from possession of recent st olen prop erty. (4) The trial court erred in charging the jury orally one (1) of two (2) bracketed alter natives at

the conclusion of the first paragraph of T.P.I. Cr im. 42 .20, inference from possession of stolen property, while writ ten charge submitted to the jury cont ained both bracketed alternatives, allowingthe jury to choose betw een the alternatives during

deliberation.

After an appro priate re vi ew of the entire record, the briefs of the parties, and the law, we reverse the trial court’s judgment and remand for a new trial.

BACKGROUND

On March 1,1995, the defendant and Leslie D. Hickman were arr ested by officers of the Dav

idson County M etro Pol ice Department and char

ged with the th eft of a 1986 Cadillac DeVille. Both defendants went to t rial in Octo ber, 1996, but the jury coul d not agree on a verdic t and the trial court declared a mistrial. The co-defendan t, Leslie D. Hickman, disposed of his case by a s ettlement, leaving the defendant,Ant onio Shelto n, for trial.3 Officer Scott Miller of the

Metro Police Department testified he answered a cal l at 3:00 a.m. concerning a vehic le parked on the street

in frontof a residence on Wood ymore Place. Upon arriving at the residence, Officer Mill er observed a Cadillac occupied by two persons. The officer identified the def endant as sitting in the driver’s seat. As Officer Miller approached the vehicle, he observed “that the st eering colu mn on the car was peeled.” Officer Miller asked for reg istration identification, but the defendant was unable to produce any registration papers. The officer placed the defendant in his sq uad car. Officer Miller had the pol ice dispat cher contact the registe red owner, Ms. Vick i Owens. Officer Dan Whit ley, who re sponded to Officer Miller’s call for backup, testified that he observed the steering column had beenpeeled and parts of the column were lying on the driver’s side floorboard. Both officers stated the car could be started by using a screw dri

ver or pliers on the ignition lever, pulling the lever up.

Ms. Vicki Owens, own er of the Cadillac, testified she w as awakened by a call from
a Metro Poli ce dispatcher concerning her car. At the request of the police, Ms. Ow

en s checked her

driveway and

found her car missing. The v ictim did not know the defendant nor gave him permissi on to drive her car.

In his own behalf, the defendant testified h e and Leslie D. Hickman w ent to a friend’s house for a music session. At approximately 11:30 p.m., the defendant, Hickman, Michael Darwin, and a frie nd of Darwi n’s left in a Sunbird to go to Antioch to buy some li quor. However, the driver of the Sunbird was driving too fast, so the defendant aske d Darwin if he coul d find them another ride back to the frie nd’s home. Darwin got the defendant and Hickman a ride with “Reg gie.” The defendant asked Reggie, “Why is the neck broken on this car?” Based on Reggi e’s answer, the defendant did not believe the Cadillac was stolen. Regg ie informed the defendant he was goi ng to stopat a friend’s to use the bathroom. Reggie stoppe d the car, got out, and disappe ared. The police pulled up behind the car and an officer asked the def endant for a driv er’s licen se, which the defendant did not have. The defendant insi sted he was on the passenger’s side of the vehicle at the time of his ar rest.4 Also, the defendant testified he had owned a c ar for over a year

and a half that had
a stripped steering col umn. Further, it was c ommon in the defendant’s neighborhood for persons to own cars w

ith stripped columns. Based upon the

eviden ce, the j ury foun d the defe ndant gu ilty o f theft of prope rty.

APPELLA

TE ISSUES

Without a special request for a j ury instruction on j oy r iding by the defendant, the defendant nevertheless contends it was fundamental error for the trial court to not instruct the jury of this included offense. I n its brief, the State concedes the trial cou rt may have committed error in not charg ing an included offense of joyri ding.

Since we are reversing and remanding this case for a new trial, we will address only the trial court’s failure to charge the included offense of joyriding as dispositi ve of the case.

The indictment in this cause alleges the defendant, “knowingly did obtain or exercise control over certain property, to wit: 1986 gray 4-door Cadillac

DeVille, of the value of

more than $1,000, but less than $10,000, the proper ty of Vicky Lyn n Owens, wit hout the effect ive consentof Vicky Lynn O wens, with t he inten t to depri ve Vicky Lynn O wens of th e propert y.

. . .” Thus, the State must prov e the essential elementof intent on the defendant’s part to uphold a conviction for the offense of theft. Tenn. Code Ann. § 39-14-103.

On the other hand, Tenn. Code Ann. § 3 9-14-10 6 describ es the ele ments of joyriding: A person commit s a Class A misdemeanor who t akes another’s automobile, airplane, motorcy cle, bicycle, boat or other vehicle without the

consent of the owner and the person does not have the intent to depr ive the owner thereof.

Pursuantto Tenn. Code Ann. § 40-18-110(a), a tri al court is required “ to charge the juryas to all of the law of each offense included in the indictment, witho ut any request on5

the part of the defendant t o do so.” When the evidence, introduced by the Stat e or the defendant, is susceptible of inferring guilt of either a lesser g rade or lesser included offense, the trial court has a mandatory duty to charge such lesser offense

. State v. Trusty, 919 S.W.2 d 305, 310 ( Tenn. 1996); State v. Howard, 926 S.W.2d 579, 585-86 (Tenn. Crim. App. 1996); Johnson v. State, 531 S.W.2d 558, 559 (Tenn. 1975).

In effect, the trial court must consider the evidence in the light most favorable to the existence of the lesser included offense and if the ev idence so considered permits an inference of guilt of thelesser included offense, the trial court must giv

e instructions as to the lesser

offense. Otherwise, the trial court’s consideration of the evidence runs the risk of invading th e province of the ju ry relative to witness credibility, the weight and sufficiency of evidence, and the degree of the offense , if any, to be sustained. Strader v. State, 210 Tenn. 669, 679, 362 S.W.2d 224, 228-29 (Tenn. 1962); State v. Boyce, 920 S.W.2d 224, 226 (Tenn. Crim. App. 1995).

When deciding whether to g ive an instruction on a lesser included offense, the tri al court must consider all the evide nce prese nted at t rial, incl uding the defend ant’s tes timony. This is t rue eve n if the defendant’s testimony is unpersuasive or uncorr oborated. See Howard, 926 S.W.2d at 586. If a

defendant’s v ersion of events is susce ptible to an inference of guilt of a lesser offense, then the t rial court must instruct the jury with respect to the lesser included offense. Howard, 926 S.W.2d at 585-86.

In State v. Williams, S.W.2d (Tenn. 1998), theSupreme Court conducted
a harmless error analy sis on the alleged failure of the trial court to instr uct the jury on voluntarymanslaughter as an included offense or lesser grade of murder firs t degree. Although the facts in Williams may have suppor ted an instruction on voluntary manslaughter, the trial court did charge the jury with the elements of murder first degree, and the lesser offenses of murder second degree and rec kless homicide. The Supreme Court found “the trial court’s erroneous failure to charge voluntary manslaughter is harmless beyond a reasonable doubt bec ause the jury’s verdic

t of guilt on the greater1 It appears the Supreme Court may have criticized the holdings in State v. Belser, 945 S.W.2d 776 (Tenn. Cr im. App. 19 96) and State v. Ruane, 912 S.W.2d 766 (Tenn. Crim. App. 1995). 6 offense of first degree murder and its disinclination to consider the lesser included o ffense of second degreemurder clearly demonstrates that it certainly w ould not have returned a verdict on voluntar

y manslaughter.” 1 Williams , ____ S.W.2d ____, slip op. at 11.

The testimony of th e defend an t h as he retofo re

be en set o ut

in th is op in io n. We believe the defendant’s testimony as to ho w he c ame to be in the car and his int entions raised a factual issue with respect to his mens rea, and the t rial court should ha ve submitted the issue to the jur y.
Having determined that the trial court erred by failing to g ive a joyriding instruction, we must determine the effect of the error. The facts in Williams are clearly distin guishable. In Williams, the trial court gav e the j ury the op tions to determine exactly what offense, under the instructions, the defendant may have committed. In this case, the trial court did not charge any included offenses, thus the jury was faced with the determination of whether the defendant knowingly and intentionally deprived the owner of her car. Since there was no included offense charg ed in these facts, we cannot app l y a harmless error analysis. Notwithstanding the trial court’s spirited ruling at the motion for a new trial wi th the defendant, the jury would be the ultimate author ity on whether the

defendant intended to deprive the owner of her car. We believe the trial court’ s failure to instruct joy riding as a lesser offense is reversible error and the defendant is entitle d to a new trial.

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________________

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_ L. T. LAFFERTY, SENIOR JU DGE7

CONCUR:

___________________________________ JOHN H. PEAY, JUDG E

___________________________________ THOMAS T. WOODALL, JUDGE