         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE                FILED
                            JANUARY SESSION, 1999             February 19, 1999

                                                           Cecil W. Crowson
STATE OF TENNESSEE,               )                      Appellate Court Clerk
                                          C.C.A. NO. 01C01-9807-CC-00287
                                  )
      Appellee,                   )
                                  )
                                  )       MARSHALL COUNTY
VS.                               )
                                  )       HON. CHARLES LEE
GRADY PAUL GATLIN,                )       JUDGE
                                  )
      Appe llant.                 )       (Direct Appe al - Theft)




FOR THE APPELLANT:                        FOR THE APPELLEE:

CLIFFORD K. MCGOWN                        JOHN KNOX WALKUP
113 North Court Squ are                   Attorney General and Reporter
Wa verly, TN 37185
(On App eal Only)                         CLINTON J. MORGAN
                                          Assistant Attorney General
JOHN HARWELL DICKEY                       425 Fifth Avenu e North
Assistant Public Defender                 Nashville, TN 38243-0493
105 S. Main Street
Fayetteville, TN 37334                    MIKE MCCOWEN
(At Tr ial and of Cou nsel o n App eal)   District Attorney General

                                          W.E. BARNARD
                                          Assistant District Attorney
                                          Marshall Co. Courthouse
                                          Lewisburg, TN 37091



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

       On March 12, 1998, a Marshall County jury convicted Appellant Grady P.

Gatlin of one count of forgery, one count of transfer of a forged check, and three

counts of theft over $1,000.00. After a sentencing hearing on April 22, 1998, the

trial court imposed concurrent sentences of three years and three months for all

five conviction s. After a hearin g on A ppella nt’s Motion For New Trial on June 3,

1998, the trial court merged the convictions for forgery and transfer of a forged

check into the three theft convictions. Appellant challenges his three remaining

theft convictions, raising the following issues:

       1) whether the trial court erred when it failed to dismis s two of the counts
       of theft; and
       2) whether the trial court erred when it failed to instruct the jury about
       division of marital property under Tennessee law.

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



                                      I. FACTS




       Judy Gatlin testified that she and Appellant had been married for twen ty-

four or twenty-five years, but they sepa rated in Febru ary of 1 997.           S hortly

thereafter Ms. G atlin m oved to Floren ce, Ala bam a and Appe llant m oved to his

mothe r’s house in Lewisb urg, Te nness ee.



       Ms. Gatlin testified that she was employed by National Health Corporation

(“NHC”) from 1988 to 1995, and she had a vested retirement account from which

she was en titled to withdra w funds . In April of 1997, Ms. Gatlin received an

application to withd raw re tireme nt fund s that h ad be en se nt to Ap pellan t’s



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moth er’s address in Le wisburg and had then be en forward ed to Ms. G atlin in

Florence, Alabama.       Ms. Gatlin then filled out the application to withdraw

$9,114.87 from her retirement account and she mailed the application to NHC.

Shor tly therea fter, the applic ation w as retu rned b ecau se Ms . Gatlin had failed to

sign her name. Ms. Gatlin then signed the application and sent it back to NHC.

When Ms. Gatlin filled out the application, she directed NHC to send the funds

to her in Florence, Alabama.



       Ms. Gatlin testified that when she had not received a check by June of

1997, she calle d NHC to inquire about the status of her account. Ms. Gatlin then

learned that NHC had sent a check for $9,114.87 to Appellant’s mother’s address

in Lewisburg pursuant to instructions NHC had received by a telephone call on

May 19, 1997. Ms. Gatlin testified that she had never called NHC to direct them

to mail the check to Appellant’s mother’s address and she had not authorized

anyone to do so on her b ehalf. Ms. Gatlin also testified that someone else had

signed her name without authorization on the postal receipt for the check that had

been delivered to Appellant’s mother’s address.



       Ms. Gatlin testified that although the check from NHC had been endorsed

in the names of Ms. Gatlin and Appellant, she had not signed the check and had

not authorized anyone to do so for her.           Ms. Gatlin also testified that she

recogn ized Ap pellant’s sig nature o n the che ck.



       Jack ie Sellers testified that as the insurance coordinator for NHC, she was

respo nsible for the mailing of retirement checks. Ms. Seller changed the mailing

address on Ms. Ga tlin’s applica tion from an add ress in Flo rence, A labam a to

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Appe llant’s m other’s address in Lewisburg pursuant to a telephone call on May

19, 1997. Ms. S ellers c ould n ot rem emb er who had m ade th e telep hone call.

Ms. Sellers also testified that the check made out to Ms. Gatlin had been

proces sed an d $9,11 4.87 ha d been obtained for the che ck.



       Mary Ann P ressn ell testified that while she was working as a mail carrier

on June 12, 1997, she delivered a letter to A ppella nt’s m other’s house that was

addressed to Ms. Gatlin. Appellant signed the postal receipt for the letter and

took po ssessio n of it.



       Michael Beech testified that while he was working as a teller at the Bank

of Belfast on June 13, 1997, Appellant came to the bank and opened a joint

savings account in the names of Appellant and Ms. Gatlin. Appellant opened the

account by depositing $8,000.00 from a check for $9,114.87 that was made out

to Ms. G atlin and appeared to be endors ed by both M s. Gatlin and A ppellant. Mr.

Beech testified that Appellant took the remaining $1,114.87 in cash and left the

bank. Mr. Beech also testified that Appellant came to the bank on June 16, 1997,

and with drew an other $7 ,000.00 from the accou nt.



       Elaine Allen testified that while she was working as a teller at the Bank of

Belfast on Jun e 13, 19 97, App ellant cam e into the bank at some time after 4:30

p.m. an d withdre w $1,00 0.00 from the joint acc ount.




             II. FAILURE TO DISMISS TWO COUNTS OF THEFT




                                        -4-
      Appellant conten ds that th e trial court erred when it failed to dismiss two

of the coun ts of theft.   Sp ecifically, App ellant argu es that b ecause the jury

convicted him of the theft of $9,114.87 from Ms. Gatlin, “it is improper and unjust

for him to also be convicted of theft from the Bank o f Belfast.”



      Appe llant’s argument is inaccurate. The record indicates that Appellant

was neither charged nor convicted of theft from Ms. Gatlin. Count Three of the

indictment charges Appella nt with the th eft of $1,11 4.87 from the Ban k of Belfas t,

Count Four charges Appellant with the theft of $1,000.00 from the Bank of

Belfast, and Count Five charges Appellant with the theft of $7,000.00 from the

Bank of Belfast. The jury convic ted Ap pellan t of thes e three coun ts. This issue

has no merit.



                            III. JURY INSTRUCTIONS




      Appellant contends that the trial court erred when it failed to instruct the

jury abou t the divis ion of m arital property unde r Tennes see Law. H owever,

Appe llant’s counsel admitted at the hearing on the motion for a new trial that he

had never requested any such instruction about marital property. Further, there

is no indication in the record that Appellant ever objected to the jury charge as it

was given. T hus, A ppella nt has waived this iss ue. See State v. Norris , 874

S.W.2d 590, 600 (Tenn. Crim. App. 1993) (“In the absence of an objection or a

special request, a defendant may not later raise an issue regarding an omission

in the co urt’s charge .”); State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App.

1988) (“Upon the failure of the trial court to properly charge the jury on [an] issue,




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however, it becomes the responsibility of the defendant to submit a special

request. His failure to d o so constitutes a waiver of the issue.”). 1



        Accordingly, the judgment of the trial court is AFFIRMED.



                                          ____________________________________
                                          JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




        1
         Even if A ppellant ha d reque sted su ch an ins truction, he would no t have be en entitled to one.
Division of marital property under Tennessee Code Annotated section 36-4-121 governs only the division
of assets upon divorce, not the determination of property ownership between married persons. Tenn.
Code Ann. § 36-4-1 21(b)(1)(D) (1996).

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