FILED

December 23, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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

)

Appellant. ) (Direct Appeal - 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
-2-

OPINION

A Greene County Criminal Court jury found Appellant, 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 Supreme Court in

State v. Dyle, 899 S.W.2d 607(Tenn. 1995); regarding

eyewitness identification.

After a review of the record, we affirm the judgment of the trial court.

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
-3-

vacation without having given anyone permission to drive the car. They

were informed later that week that the automobile 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 Appellant as having been the driver of the car. Mr. Ronnie

Brown testified that Appellant came to his body and repair shop and

asked him to paint a ‘64 Corvette convertible. Mr. Brown refused to

paint the car, telling Appellant, “I ain’t getting in trouble.” Ms. Kay Lane

testified that she took Appellant to a field behind a trespassing gate 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 him talking about having to get rid of the car.

Several other witnesses testified they saw Appellant driving the

Corvette. 

SUFFICIENCY OF THE EVIDENCE 

Appellant argues that the evidence presented at trial was

insufficient 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
-4-

record, though he provided the only testimony regarding the value of

the car. In State v. Bridgeforth, 836 S.W.2d 591 (Tenn. Crim. App.

1992), this court held that Tennessee Rule of Evidence 701 prohibits

value testimony from any lay witness other than the property owner.

However, Bridgeforth 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 presented by Bridgeforth. Here, the witness

who testified regarding the 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 Bridgeforth

did not in anyway demonstrate how the amount was arrived at or even

that the bailee had any reliable knowledge of the value of the goods,

the value attributed to the car by Mr. Jones was clearly arrived at

through intimate knowledge of the vehicle. This issue is without merit.

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 and the person does not have

the intent to deprive the owner thereof.” 

A trial court has a duty to instruct the jury on all lesser included

or lesser grade of offenses whether or not it is requested to do so.
-5-

State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996). However, the trial

court is not required to instruct the jury regarding a lesser included or

lesser grade of offense where no evidence has been presented to

support a lesser offense. Id.; Whitwell 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 case do not support a jury charge for joyriding.

Appellant consulted with a body shop about painting the vehicle. After

wrecking, Appellant burned the car. 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 joyriding was not reversible error. This issue is without

merit.

HEARSAY OBJECTION

Appellant maintains that the trial court erred in sustaining the

State’s objections to certain questions asked during the crossexamination of Detective Ellison. On direct examination the prosecutor

elicited from Detective Ellison that Mr. Hobert Carter had told Ellison

that he had seen Appellant driving the Jones’ vehicle. This testimony

was admitted pursuant to Tenn. R. Evid. 803(1.1) which allows, as an

exception to the hearsay rule, a prior statement of identification by a

witness if the declarant 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 when Carter saw him in the Jones’ Corvette. The State’s

objections to these questions 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 testifying at trial or hearing,

offered in evidence to prove the truth of the

matter asserted.

Clearly, counsel wanted to show by this line of questioning that

Appellant was not afraid of being seen driving the Corvette, and had 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 therefore properly

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 this information and its

exclusion during Ellison’s testimony could not have harmed Appellant.

JURY INSTRUCTION REGARDING IDENTITY

Appellant’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 state supreme court held that in cases where

the identity of the defendant is a material issue, a m ore comprehensive

jury instruction than that of the traditional pattern charge should be

given to the jury if the defendant requests the more comprehensive

instruction.
-7-

The jury instructions promulgated by the Court in Dyle reads as

follows:

One of the issues in this case is the

identification of the defendant as the person

who committed the crime. The state has the

burden of proving identity beyond a

reasonable doubt. Identification testimony 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 opportunity 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 which it was made,

including whether 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

defendant, 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 surrounding such

identifications.

Again, the state has the burden of proving

every element of the crime charged, and this

burden specifically 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 identification testimony in

light of all the proof you have a reasonable

doubt that the defendant is the person who

committed the crime, you must find the

defendant not guilty.

Id. At 612.
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 Appellant only hin ted th at the eyewitnes 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.

-8-

If a defendant fails to request the instruction set forth above, the

case under consideration must be analyzed to determine whether the

failure to give the instruction amounts to harmless error. Id. In the

instant case Appellant did not request that the Dyle instruction be given.

We therefore review the case under a harm less error standard. 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). This issue is without merit.

Having reviewed the record 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
-9-

CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

CHRIS CRAFT, SPECIAL JUDGE