# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE APRIL SESSION, 1997 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, J R. JOHN KNOX WALKUP 1104 Tusculum Blvd., Ste. 101 Attorney Generaland Reporter Greenevill e, TN 37743 CLINTON J. MORGAN Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243 C. BERKELEY BELL Distri ct Attorney General ERIC D. CHRI STIANSEN Assistant Distri ct Attorney 113-J West Church Street Greenevill e, TN 37743 OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

A Green e Cou nty Crim inal Cou rt jury found Appella nt, William Lynn Holt, guilty of theft of propert y valued ove r $10,000 and under $60,000. Appellant was sentenced to si x ye ars in the Tennessee Department of Corr ection and f ined $10,000. On appeal, Appella nt prese nts thefoll owing i ssues for revi ew: 1) whethe r the evidence presented at tri al was insuffi cientas a mater of l aw to support t he jury verdict of theft of property valued between $10, 000 and $60,000; 2) whetherthe t rial cour t erred i n denying the defense request for

a jury i nstructi on on jo yriding as a lesser i ncluded offense; 3) whether the t rial cour t erred i n not giving the jury instruct ion set out by t he Tennessee Su prem e Cou rt in State v. Dyle , 899 S.W.2d 6 07(Ten n. 1995); r egarding eyewitness i dentifi cation.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTUAL BACKGROUND

The evidence prese nted at trial establ ished that in early June, 1995, Appellant and three other people worked at the home of J.C. Jones, paintin g the Jones home. Mr. Jones testi fied that at that ti me he owned a 1964 yellow Corvette co nve rtibl e automobile, which he kept hidden behind his house. On June 8, the Jones fam ily left for a-3-

vacation without

having giv

en anyone permissi on 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 test ified t hat the c ar had a fair market value of

at least $25, 000.

Mr. Hobert Carter, famili ar with Mr. Jo nes’ au tomobile, saw the
carbei ng driv en at

abou t 8: 45 p. m. on June 8, 1995. Mr. Carter iden tifi ed Appe llant as having been the drive r of the c ar. Mr. R onnie Brown testified that A ppellant ca me to his body and r epair shop and asked him t o paint a ‘64 Corvette convertib le. Mr. Brow n refuse d to paintthe car, telling Appella nt, “I ain’t getting in trouble.” Ms. Kay Lane testif ied that she to ok App ellant to a field beh ind a tresp assing g ate in orderto retrieve a car f or which he said he had traded a motorcycle and
a Camero. Ms. Lane testified that he got the keys t o the car fr om the trunk and drove the car

to a trai ler park. She later r eceived a phone call telli ng her t hat App ellant h ad wrecked. She drove to where Appell ant
was a nd overheard h im talking abou t having to get rid of the ca r. Several other wit nesses testi fied theysaw Appellant drivi ng the Corvette

.
SUFFICIENCY OF THE EVIDENCE
Appellant

argues that the evidence pres ented at trial was i nsuffic ientto support t he verdict of guil ty in t hat there was no competent evidence to establ ish the val ue of the stolen automobil e. He bases this argument

upon the fact

that J.C. Jones is not t he owner of-4-

record, though he provi ded the only testimony regar ding the val ue of the car . In State v. B ridgeforth , 836 S.W.2d 591 (Tenn. Cri m. App. 1992), this cour

t held that Tennessee Rule of Evi dence 701 pro hibits
v alue testi mony from any lay wi tness ot her than the prop erty own er . Howeve r, Bridgefo rth involved testi mony from a ba ilee regar ding the value of propert

y in the bai lment . The s ituati on in the case sub judice is very different from that pre sented by Bridgefo rth . Here, the witness who testified reg arding th e value of t he car was married to the titled
owner of the car. The testimony was that th e car was thei r joint marital property. While the figur e put into

evidence by t he bailee i n Bridgefo rth did not in anyway

demonstrate how t he amount was arrivedat or even thatthe bai lee had any reli able knowl edge o f t he value of the goods, the value att ribu ted to the car by Mr. Jones was cl early ar rived at through intimate k nowled ge of the v ehicle. T his issue is without m erit.

FAILURE TO CHARGE JOYRI DING
Appellant

argues that the t rial cour t erred i n faili ng to charge the jury on th e les ser offe nse of joy rid ing, Te nnes see Code Annotated Section 3 9-14 -106. A person commits “joyr iding” when he or she: “takes another’ s automobile, airp lane, motorcy cle, bi cycle, 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 inst ruct the j ury on all l esser incl uded
or lesser grade of offen ses w hethe r or not it is requested to do so.-5-

State v. Trusty , 919 S.W.2d 305, 310 (Tenn. 1996). However, the t rial court is not re quired to instru ct the ju r y regardi ng a lesser i ncluded or lesser grade of off

ense where no evidence has been pres ented 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. Cri m. App. 1987). The facts in this ca se do not su pport a jury charge for joy riding. Appellant

consulted wi th a bodyshop about paint ing the vehi cle. After wrecking, Appellant

burned the c ar. There is no evidence in this record thatAppellant i ntended anythi ng but to deprive the owner of the car of his property. Therefore, t he trialjudge's failure to charge the j ury on the lesser offense of joyridin g was not rev ersible error. This issue i s without merit.

HEARSAY OBJECTI ON Appellant

mainta ins that the trial court err ed in sustai ning the State ’s objections to certain questions asked during the crossexamination of Detective Ellison. On direct examination t he prosecutor elici ted from Detecti ve Elli son that Mr. Hobert Carter had told Ell ison thathe had seen Appe llant drivin g the J ones ’ vehicle . This testimony
was admitted pursua nt to Tenn. R. Evid. 803( 1.1) which al lows, as an exception to the h earsa y rule, a p rior state men t of iden tific ation by a witness if the declara nt te stifi ed and is subjec t to cross -examinati on. On cross-examinat ion counsel for Appell ant asked questi ons of Elli son concerning whethe r Cart er had told El lison t hat appell ant had waived at Carter w hen C arter saw him in th e Jones’ Corve tte. Th e State ’s objections to these questi ons were sustained on hearsay grounds.-6- Hearsay is defined at Tenn. R. Evid. 801(C) as:

. . . a statement, other than one made by the declarant

while testifyi ng at tri al or heari ng, offered in e vide nce to prove t he truth of the matter asserted. Clearly, co unsel w anted to show by this line of questi oning that Appellant

was not afrai d of being seen drivi ng the Corvette, and h ad in fact wave d to Carter. However, it is equally clear t hat elic iting t hi s informati on thr

ough Ell iso n amo un ted to an attempt to int roduce hearsayfor which no exception exis ts and it was th erefor e prop erly excluded. In any ev ent during Mr . Carter’ s testi mony counsel asked Carter if Appe ll ant

had wav ed to hi m. Carter respon ded that Appell ant 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 IN STRUCTION REGARDI NG IDENTI TY Appe llant’s last complai nt concerns t he jury i nstructi on regarding identity. At tri al the jury instructed the jury with the traditional pattern instruct ion regarding i dentity . T.P.I. Crim. (3d ed. ) 42.0 5 (1993). Appel lant maintains t hat this instruct ion was insuf ficien t in l ight of t he Tennessee Supreme Court’s hol ding 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 amaterial issue, a m ore comp rehensive jury instruction than that of the tradi tional p attern char ge should be given to the j ury if

the defendant

requests t he mor e com prehensive instruct ion.-7- 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 t he

identif icatio n of the defe ndant as the per son who committed the crime. The state has the burden of provi ng identi ty be yo nd a reaso nable doubt. Identif icatio n testim ony is a n expr ession of bel ief or i mpression by the witness, and its val ue may depend upon your considerati on of severalfactors. Some of the factors whi ch you may consider are: (1) The witness’ capa ci ty and op portunity to observe the of

fender. Thi s includes, among o th er things, the lengt h of time avai lable fo r observati on, the distance from which t he wi tne ss observed, t he light ing, and wheth er the person who committed t he crime wa s a prior acquaintance of t he witness; (2) The degree ofcertainty expressed by t he witness regarding t he identi ficati on and the circumstancesunder w hich it was made, includi ng wheth er it is th e product of the witness’ own recoll ection; (3) The occasions, i f any, on whi ch the witness failedto made an identi ficati on of the defend ant, or made an identificatio n that was inconsistent with the ident ificat ion at trial; and (4) The occasions, i f any, on whi ch the witness made an identif icatio n that was c o nsistent

with the i dentifi cation at trial , and the circumstances s urroun din g suc h identifi cations. Again, the state has the burd en of proving every elem ent of th e crim e cha rged, a nd this burden spec ifically includes t he identi ty of the defendant as t he person who committed the cri me for which heor she is on t rial . If af ter consideri ng the i dentific ation te stimo ny in l ightof all the proof y ou ha ve a rea sona ble doubt that the defen dant is the p erson who committed t h e crime, you must find the defendan t not guilty. Id.At 612.1 It shoul d be noted that only if identi

ty i s a material issue is a defendant entit led to the Dyle instruction upon request or a harmless error

analysis in the absence of a specialrequest. I f identi ty i s not a material issue fail ure to give the Dyle instruction is not error at all. Identity i s 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 judiceApp 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 vehi cle. Thus, i t is quest ionable whether identi ty was a material issue in this case. We neverthel ess will address thi s issue under the harmless error st andard. -8- If a defend ant fails to request the instruct ion set forth above, the case underconsiderat ion must be analy zed 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 requ est that t he Dyle instruct ion 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 h e first took theCorvette. Appellant was positi vely i dentifi ed as drivi ng the
caron June 8 , 1995. The next day Appel lant as ked Ronnie Br own to paintthe Corvette. In addit ion four ot her witnesses who knew Appellant also saw him drivi ng the stol en Corvette. We are convinc ed that any
error in the failure to give the Dyle instructi on did not effect t he 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 pa rtie s we conclude there is no reversi ble erro r in thi s record. Acco rdingly , the judgment of t he trialcourt is affirmed.

_____________________________ JERRY L . SMI TH, J UDGE-9-

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ CHRIS C RAFT, SPECI AL JUDGE