        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                         APRIL SESSION, 1997           December 23, 1997

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
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, 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
                                    OPINION

       A Green e Cou nty Crim inal Cou rt jury found Appella nt, 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 Suprem e Cou rt in

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

       eyewitness identification.



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



                       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


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vacation without having given anyone permission 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 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 Appe llant as having been the drive r of the c ar. Mr. R onnie

Brown testified that A ppellant came to his body and repair shop and

asked him to paint a ‘64 Corvette convertib le. Mr. Brow n refuse d to

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

testified that she to ok App ellant to a field beh ind a tresp assing g ate 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 h im talking abou t having to get rid of the ca r.

Several other witnesses testified they saw Appellant driving the

Corvette .



                  SUFFICIENCY OF THE EVIDENCE



       Appellant argues that the evidence presented at trial was

insuffic ient 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

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

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

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

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

Howeve r, Bridgefo rth 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 pre sented by Bridgefo rth. Here, the witness

who testified regarding th e 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 Bridgefo rth

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

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

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

through intimate k nowled ge of the v ehicle. T his issue is without m erit.



                 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 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 instruct the jury on all lesser included

or lesser grade of offen ses w hethe r or not it is requested to do so.

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

court is not re quired to instru ct the ju ry regarding a lesser included or

lesser grade of offense where no evidence has been presented 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. Crim. App.

1987). The facts in this ca se do not su pport a jury charge for joyriding.

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

wrecking, Appellant burned the c ar. 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 joyridin g was not rev ersible error. This issue is without

merit.



                         HEARSAY OBJECTION

         Appellant mainta ins that the trial court erred in sustaining the

State ’s objections to certain questions asked during the cross-

examination of Detective Ellison. On direct examination the prosecutor

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

that he had seen Appe llant drivin g the J ones ’ vehicle . This testimony

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

exception to the h earsa y rule, a p rior state men t of iden tification by a

witness if the declara nt 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 w hen C arter saw him in the Jones’ Corve tte. Th e State ’s

objections to these questions were sustained on hearsay grounds.

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      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, co unsel w anted to show by this line of questioning that

Appellant was not afraid of being seen driving the Corvette, and h ad 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 th erefor e prop erly

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 th is informa tion and its

exclusion during Ellison ’s testimon y could no t have ha rmed A ppellant.



            JURY INSTRUCTION REGARDING IDENTITY

      Appe llant’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 sta te sup reme court h eld tha t in cases wh ere

the identity of the defendant is a material issue, a m ore comp rehensive

jury instruction than that of the traditional pattern charge should be

given to the jury if the defendant requests the more comprehensive

instruction.




                                     -6-
      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 the
              identification of the defendant as the person
              who committed the crime. The state has the
              burden of proving identity beyond a
              reaso nable doubt. Identification testim ony 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 op portunity 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 w hich it was made,
              including wheth er 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
              defend ant, 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 surroundin g such
              identifications.

              Again, the state has the burden of proving
              every elem ent of th e crim e cha rged, a nd this
              burden spec ifically 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 identific ation te stimo ny in
              light of all the proof y ou ha ve a rea sona ble
              doubt that the defen dant is the person who
              committed the crime, you must find the
              defendan t not guilty.

Id. At 612.




                                     -7-
        If a defend ant fails to request the instruction set forth above, the

case under consideration must be analyzed 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 request that the Dyle instruction 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 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). Th is issue is w ithout me rit.



        Having reviewed the rec ord 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




        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 App 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 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-
CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
CHRIS CRAFT, SPECIAL JUDGE




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