### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs F

ebruary 14, 200 1 STATE OF TENNESSEE v. MARTY SCOTT SLATTEN Appeal from the Criminal Court for White County No. CR416 Lillie Ann Sells, Judge

No. M2000-01155-CCA-R3-CD - Filed June 27, 2001

The defendant was convicted by a jury of theft of a vehicle worth mor e than $10,000, a Cl

ass C fel ony, for which he received a fifteen-yea r sentence as a career offend er. He conten ds that the evidence is insufficient to convict him of theft and that the trial court erred in allowing evidence of his attempt to steal g

asoline that led to h

is arrest. We aff

irm the trial cour

t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and A LAN E. G LENN , J., joined.
David Neal Brad y, District Public Defender, and Joe L. Finley, Jr., Assistant Public Defender, for the appellant, Marty Scott Slatten.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General; William Edward Gibson, Di stric t Attorn ey General; and William M. Locke, Assistant District Attorney General, for the appellee, State of Tennesse e. OPINION
The case relates to a 1996 Chevrolet S-10 Blazer worth $20,000 that the defendant took from the lot of Edd Rogers Chevrolet in Sparta, Tennessee. On July 22, 1998, approximately 2:00 to 2:30 p.m., the defendant

talked with a salesman, Roger Clouse, about buying the Blazer. He c ompleted and signed a credit application using the name George Dotson, a false social security number , and a false address.

He told Mr. Clouse that he worked for the White County Highway Department. The defendant received permission to test drive the Blazer and drove it from the lot. Mr. Clouse thought that the defendant seemed normal, not intoxicated.
Around 4:00 to 4:30 p.m., Mr. Clouse noticed that the defendant had not returned the Blazer and decided to

run a credit check. He determined that the information given by the de fendant was-2-

false and called the Sparta Police Department. The Blazer was ultimatel y retriev ed in damaged condition that required $5,500 in repairs.
Around 7:30 to 8: 00 p.m. th at night, t he defendant drove the Bl azer to Big M Market. He paid the owner, Carol Measles, three dollars for gasoline. H owever, the def

endant pumped twe

nty dollars of gasoline into the Blazer. While he was filling the tank, Mrs. Measles took his keys from the Blazer and returned to the store. She refused to let the defendant have the keys and called the White County Sheriff’s Department. The defendant was arrested after 8:15 p.m., and the Blazer was returned to Edd Rogers Chevrolet. Mrs. Measles believed that the defendant was very drunk. The arresting officer described the defendant’s condition as “very intoxicated” and “very impaired.”
I.
The defendant conte

nds that the eviden

ce failed to show

that the defenda

nt intended to deprive the owner of the Blazer of his property as is required for a theft. SeeTenn. Code Ann. § 39- 14-103. He argues that

instead of removing the

vehicle from the area, “he became intoxicated and apparently

wandered aimle

ssly about B lount County for five (5) or six (6) hours.” He asserts that his conduct reflec

ts joy riding, i.e., taking the Blazer without the consent of its owner but without the intent to deprive the owner thereof. See Tenn. Code Ann. § 39-14-106. Thestate responds that the defendant’s giving false information on the credit application and to the sales person illustrated his intent to deprive Edd Rogers Chevrolet of its property. We agree. “Deprived” means to “[w]ithhold property from the owner permanently or for such a period of time as to substantia

lly dim ini sh the value or enjoyment of the property to the owner.” Tenn. Code Ann. § 39-11-106(a)(8)(A). In the light most favorable to the state, the evidence reflects that the defendant used f

raudulence to ob

tain the Blazer a

nd kept it for his own use

until he was arrested approximately

six hours later. We conclude that a rational juror could find from the evidence that the defendant was g

uilty of thef

t beyond a r

easonable doubt. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984).
II.
The defendant contends that he is entitled to a newtrial because th e trial court err

oneously allowedthe state to prove tha t he attempted to

steal gasoline which led to his arrest. He argues that the evidence was irrelevant and, to the extent it might be relevant, prejudicial. Relying upon State v. Gilliland , 22 S.W.3d 266 (Tenn. 2000), the state responds that the defendant’s theft of gasoline was contextual background evidence that was necessary for a clea r presentation of the state’s case. We disagreewith the state, but we conclude that the context in which the evidence was introduced and the tri al c our t’s lim iti ng in str uct ion to t he j ury r end ers a rem edy u nne cess ary.
In Gilliland , our supreme cour t held t hat under Rule 404(b), Tenn. R. Evid., “contextual backgroun d evidence” may be admitted “when exclusion of that evidence would cre ate a chronologicalor conceptual void in the presentation of the case and that void would likel

y result in-3-

significant

jury confusion concerning the material issues or evidence in the c ase.” 22 S.W.3d at 272. The court viewed the standard to be narrowly

drawn relative t

o other crimes evidence “to avoid the negativeimplications associated with criminal propensity evidence.” Id. Thus, as a practical matter, the standard will rarely be met relative to oth

er crimes that ar

e not otherwise a

dmissible under Rule 404(b). Trial court s and cou nsel should be reminded that the general rule regarding other crimes evidence remains one of exclusion.
In the present case, in terms of contextual background, the fact that the defendant attempted to steal gasoline s

ix hours after takin

g the Blazer ha

s abso lu tely no significance relative to jury confusion concerning material issues or evidence dealing with theft of the Blazer. Moreover, the fact that the defendan t was arrest ed at the Big M Market after 8:15 p.m. and after getting gasoline for the Blazer, and eventhat he was d runk, could easily be proven without any re ference to stealing gasoline. In this respect, we note t hat the sta

te in its opening statement succinctly related what happened surrounding the arrest without making any refere nce to theft of gasoline. It is not needed background evidence.
On the other

hand, the record indicates that contextual background was not the only basis for the trial court’s admission of the evidence. At the jury-out hear ing, the sta

te asserted that the defendant’s attempted theft of gasoline showed his “overall intention and motive.” It noted that the defendan t was c laiming joy riding and relying upon the fact that he was intoxicated. Frankly, the trial court’s expressed reasoning for admitting the evidence is

too vague to show

to what extent, if any, the state’s arg

ument was accep

ted. However, w

e would be incli

ned to consider the gasoline theft as admissible

relative to the defendant’s intent and motive. The theft happened while he was driving the Blazer on the day that he fraudulently took it from the dealership. In any event, we note that after Mrs. Measles testified, the trial court instructed the jury that there was no allega tion of gasoline theft i

n the present cas

e, stating that th

ere was “cert

ainly not” proof of such as presented

by Mrs. Measles. In other words, not only did the trial court advise the jury that there w as no allegat ion regardin g theft of gas oline and that the jury should not consider anything having to

do with that, the court also told the jury that the evidence did not prove such a theft. We do not believe that the evidence mor

e probably

than not affected the verdict. See T.R.A.P. 36(b).
In consideration of the fore go ing and the record as a whole, we affirm the judgment of conviction.

___________________________________ JOSEPH M. TIPTON, JUDGE