IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                       AT KNOXVILLE                                  FILED
                                                                   December 1, 1999
                 OCTOBER SESSION, 1999
                                                                  Cecil CROWS ON, Jr.
                                                                  Appellate Court Clerk



STATE OF TENNESSEE,            *
                               *      No. 03C01-9812-CC-00417
      Appellee,                *
                               *      BLOUNT COUNTY
vs.                            *
                               *      Hon. D. Kelly Thomas, Jr., Judge
MICHELLE FRANZE,               *
                               *      (Theft of Property Over $10,000)
      Appellant.               *



For the Appellant:                    For the Appellee:

John E. Herbison                      Paul G. Summers
Attorney for Appellant                Attorney General and Reporter
2016 Eighth Avenue South
Nashville, TN 37204                   Erik W. Daab
                                      Assistant Attorney General
                                      Criminal Justice Division
(ON APPEAL)                           425 Fifth Avenue North
                                      2d Floor, Cordell Hull Building
                                      Nashville, TN 37243-0493
Mack Garner
District Public Defender
419 High Street                       Michael L. Flynn
Maryville, TN 37804                   District Attorney General
(AT TRIAL)                            Edward P. Bailey, Jr.
                                      Asst. District Attorney General
                                      363 Court Street
                                      Maryville, TN 37804




OPINION FILED:

AFFIRMED


David G. Hayes, Judge
                                                 OPINION



        The appellant, Michelle Franze, was found guilty by a jury of theft of property over $10,000.
The Blount County Criminal Court imposed a split confinement sentence of three years with 210 days

confinem followed by two years, 5 months supervised probation. At trial, the appellant defended
        ent

upon the affirmative defense of “claim of right.” O appeal, she contends that “the trial court’s failure to
                                                   n
instruct the jury on the meaning of the phrase ‘claim of right’ constitutes plain and prejudicial error.”



        After review of the record, we affirm.




                                              Background


         On Decem 24, 1996, the appellant rented a 1996 Dodge Intrepid fromNational Car R
                 ber                                                                     ental

at the McGhee-Tyson Airport in Alcoa. By written contractual agreem the appellant was to return
                                                                   ent,

the vehicle on Decem 27, 1996. At this time, she provided the agent on duty with her name as
                    ber

listed on her driver’s license, her telephone number, and a Visa credit card. The vehicle was not

returned as provided by the rental agreement.



        At no time after Decem 27, 1996, did National Car R
                              ber                          ental or its agents extend permission
to the appellant to retain possession of the vehicle. Soon after January 1, 1997, the Knoxville area

manager of National Car Rental attempted to contact the appellant by telephone regarding the 1996

Intrepid. H attem however, were futile as the telephone num provided by the appellant
           is    pts,                                      ber
belonged to another person and the address on the appellant’s driver’s license was not a valid

address for her. After an exhaustive investigation, the manager w able to locate a post office box in
                                                                 as

Jefferson City registered in the appellant’s nam National Car R
                                                e.             ental mailed the appellant two
certified letters pertaining to her failure to relinquish the vehicle. These were returned unclaimed.



        On March 11, 1997, a Trenton, Georgia, police officer stopped a 1996 Dodge Intrepid for

reckless driving. The vehicle was driven by a seventeen year old male. After conducting a registration
check, the officer discovered that the car w stolen from National Car R
                                            as                         ental. Frominformation

provided by the juvenile, the officer was able to locate the appellant at a farm house. The appellant

told the officer that “[s]he rented a vehicle and the brakes messed up, so on Christmas Eve, she left

the rental car at the airport . . . and rented another car with her credit card.” She informed the officer

                                                     2
that she had not returned the Intrepid because “she was still using the vehicle to go to work.” She also

stated that “she assumed that [National Car Rental] would just take what she owed out of her credit

card.” She advised that she had given the seventeen year old permission to drive the vehicle.


         At the appellant’s subsequent trial, in her own defense, she testified that she did not steal the

car. She offered explanations for the false telephone num and address that she provided National
                                                         ber
Car Rental. Moreover, despite her admissions to the police officer at the time of her arrest, she

maintained that she had contacted National Car Rental and extended her rental agreem with them
                                                                                    ent       .

Furthermore, because “[she] really liked the car, it w [her] intent to purchase the car w [she] went
                                                      as                                 hen
back.”




                                                 Analysis



         In her only issue on appeal, the appellant alleges error based upon the trial court’s failure to

provide a specific instruction on the definition of “claim of right.” Specifically, she alleges that the trial

court’s mere recitation of the statutory language instead of defining this “phrase of art” term invited the

jury to speculate as to its meaning. Initially, we note that the appellant failed to object to the jury
instruction at the tim of trial and in her m
                      e                     otion for new trial. Moreover, she concedes that she failed to

make a request for such specific instruction to the trial court. It is well established in Tennessee that,

generally, a failure to object to the omission of a jury instruction waives that issue for appellate review.
State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982). See also State v. Haynes, 720 S.W.2d 76, 85

(Tenn. Crim. App. 1986). Moreover, Tenn. R. App. P. 36(a) provides: "Nothing in this rule shall be

construed as requiring relief to be granted to a party responsible for an error or who failed to take
whatever action w reasonably available to prevent or nullify the harmful effect of an error."
                 as

Accordingly, this issue has been waived. See State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim.

App. 1988); see also Tenn. R.App. P. 36(a); Tenn. R.App. P. 3(e).



         Notwithstanding waiver, the trial court instructed the jury:

         Included in the defendant’s plea of not guilty is her defense of claim of right.

         It is a defense to prosecution of this offense:
         (1) that the defendant acted under an honest claim of right to the property involved;


                                                       3
        or

        (2) that the defendant acted in the honest belief that she had the right to obtain or
        exercise control over the property as she did.

        “Property,” “obtain,” “effective consent,” and “deception” have previously been defined
        in the court’s previous instructions.

        The burden of proof on this issue is upon the defendant to prove the defense by a
        preponderance of the evidence. If, from all the facts and circumstances in the case,
        you find that the defendant acted under a claim of right, then you m find the
                                                                            ust
        defendant not guilty.



        In criminal cases, it is the duty and obligation of a trial judge, without request, to instruct the

jury as to the law applicable to the evidence as well as to any issues which the jury m ultim
                                                                                       ust   ately

decide. Poe v. State, 212 Tenn. 413, 370 S.W.2d 488, 489 (Tenn. 1963); see also State v. Harbison,

704 S.W.2d 314, 419 (Tenn. 1986), cert. denied, 476 U.S. 1153, 106 S.C 2261 (1986); State v.
                                                                      t.

Thompson, 519 S.W.2d 789, 792 (Tenn. 1975). The jury has the duty to apply the law contained in the

charge of the trial judge to the ultim facts which it determines exist. See Ford v. State, 101 Tenn.
                                      ate
454, 458, 47 S.W. 703, 705 (1898). Due to the importance of the charge on the role of the jury

reaching its decision, the accused is entitled to have the law pertaining to his case stated plainly to the

jury in a manner which enables themto comprehend the principles involved. See Lancaster v. State,

43 Tenn. (3 Cold.) 339, 343 (1866) (emphasis added).



        In the present case, the trial court correctly charged the jury as to the defense of “claim of

right” as defined in Tenn. Code Ann. §39-14-107. The terms of the charge in its entirety are easily

understood by the average layperson and the law was clearly articulated in the charge. The fact that
the instructions could have been m detailed does not render the instructions as given to be
                                  ore

improper, and absent a special request for an additional charge, a trial court will not be held in error.

Haynes, 720 S.W.2d at 85.



        Moreover, even assum that greater clarity should have been provided by an instruction, the
                            ing

appellant suffered no prejudice by the omission. The appellant defended at trial upon the theory that

she had a right to exercise control over the vehicle, see Tenn. Code Ann. § 39-14-107(2), as opposed

to a “claim of right.” See Tenn. Code Ann. § 39-14-107(1). Subsection (1) of the statute, “claimof

right,” addresses the situation where the accused claims an honest belief that the property belongs to

him or her and that it does not belong to another. See generally MODEL PENAL CODE § 223.1
(1980). Subsection (2), as claimed in the present case, is applicable to those situations where the

accused m know that the property belongs to another but acts in the honest belief that he or she is
         ay


                                                     4
entitled to exercise control over the property. See generally MODEL PENAL CODE § 223.1.

Accordingly, this issue is without merit.



        For the above reasons, the judgment of the trial court is affirmed.




                                            ____________________________________
                                            DAVID G. HAYES, Judge



CONCUR:




_________________________________________
GARY R. WADE, Presiding Judge



_________________________________________
DAVID H. WELLES, Judge




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