              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE             FILED
                            DECEMBER 1995 SESSION
                                                             August 1, 1996

                                                           Cecil W. Crowson
STATE OF TENNESSEE,                       )               Appellate Court Clerk
                                          )
                      APPELLEE,           )
                                          )      No. 01-C-01-9505-CC-00158
                                          )
                                          )      Bedford County
v.                                        )
                                          )      W. Charles Lee, Judge
                                          )
                                          )      (Theft Over $1,000)
TERRY BOWEN,                              )
                                          )
                    APPELLANT.            )



FOR THE APPELLANT:                               FOR THE APPELLEE:

Bill R. Barron                                   Charles W. Burson
J. Mark Johnson                                  Attorney General & Reporter
124 East Court Square                            450 James Robertson Parkway
Trenton, TN 38382                                Nashville, TN 37243-0493
(Appeal Only)
                                                 Ruth A. Thompson
Robert L. Marlow                                 Assistant Attorney General
Assistant Public Defender                        450 James Robertson Parkway
P.O. Box 1119                                    Nashville, TN 37243-0493
Fayetteville, TN 37334
                                                 W. Michael McCown
                                                 District Attorney General
OF COUNSEL:                                      P.O. Box 904
                                                 Fayetteville, TN 37334
John H. Dickey
District Public Defender                         Gary M. Jones
P.O. Box 1119                                    Asst. District Attorney General
Fayetteville, TN 37334                           Bedford County Courthouse
                                                 Shelbyville, TN 37160




OPINION FILED:_____________________________


AFFIRMED


Joe B. Jones, Presiding Judge

                                  OPINION
       The appellant, Terry Bowen, was convicted of theft over $1,000, a Class D felony,

by a jury of his peers. The trial court found that the appellant was a multiple offender and

imposed a Range II sentence consisting of confinement for eight (8) years in the

Department of Correction. This sentence is to be served consecutively with the sentences

imposed in three prior cases.

       In this appeal as of right, the appellant contends that the evidence contained in the

record is insufficient, as a matter of law, to support a finding by a rational trier of fact that

he is guilty of theft over $1,000 beyond a reasonable doubt. He also contends that the trial

court committed error of prejudicial dimensions by (a) ruling that he could not introduce

evidence that a prior burglary case had been dismissed and (b) instructing the jury on

“recently stolen property” after the state opted to seek a conviction for the unlawful exercise

of control of property. The judgment of the trial court is affirmed.

       On the evening of October 14, 1993, Lambert’s Jewelry Store, located in Shelbyville,

Tennessee, was burglarized. Police officers found that the glass in the front door had been

broken. Inside, the glass display cases had been broken. When the burglars left, they

took with them three watches, one bracelet, one pendant with gold chain, and a gold

domed ring.

       The appellant went to the home of James Farrar shortly after the burglary. He told

Farrar that he had items of jewelry he wanted to sell him. He showed Farrar the jewelry.

The liberty coin pendant and chain were in a box bearing the name “Lambert’s Jewelry.”

Farrar gave the appellant $35 and told him he would get more money later. The appellant

left with the jewelry. He got into a motor vehicle occupied by two other people and drove

away with the jewelry. Farrar subsequently called the Shelbyville police. He told the

officers what occurred. He agreed to purchase the jewelry from the appellant and

surrender it to the police.

       On October 16, 1993, the appellant returned to Farrar’s residence with the jewelry.

Farrar gave the appellant an additional $255 for the three watches, bracelet, and liberty

coin pendant with gold chain. Farrar subsequently surrendered the items he purchased

to the police.



                                               1
       The appellant sold the gold domed ring to Carolyn Farrar for $50. She testified that

she had purchased additional items from the appellant. It appears the latter items were

taken in another burglary.

       The owner of the jewelry store identified the property recovered by the police. She

testified that the bracelet was valued at $235, the pendant and chain were worth $1,195,

the ring was valued at $469, one watch was valued at $395, another watch had a value of

$195, and the third watch was worth $110.



                                               I.



       The appellant contends that the evidence is insufficient to support his conviction.

He argues: “Under these set [sic] of facts, there is no proof the defendant knowingly

obtained or exclusively exercised control of property he knew to be stolen. The nexus

between the burglary and the defendant’s possession of the jewelry is insufficient to

sustain the conviction of theft of property.” The state argues that “any rational trier of fact

could have found the [appellant] guilty of [this offense] beyond a reasonable doubt.”



                                              A.



       When an accused challenges the sufficiency of the convicting evidence, this Court

must review the record to determine if the evidence adduced at trial is sufficient "to support

the finding of the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).

This rule is applicable to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803

S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

       In determining the sufficiency of the convicting evidence, this Court does not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App.), per. app. denied (Tenn. 1990). Nor may this Court substitute its inferences for those

drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298,

305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956).



                                              2
To the contrary, this Court is required to afford the State of Tennessee the strongest

legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978).

       Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact, not this Court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973), our Supreme Court said: "A guilty verdict by the jury, approved by

the trial judge, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the theory of the State."

       Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this Court of

illustrating why the evidence is insufficient to support the verdicts returned by the trier of

fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the facts contained in the

record are insufficient, as a matter of law, for a rational trier of fact to find that the accused

is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.



                                               B.



       Before an accused can be convicted of theft over the value of $1,000, the state must

prove beyond a reasonable doubt that:

       a) the accused (1) knowingly obtained the property of another, (2) without the

owner’s effective consent, and (3) with the intent to deprive the owner of the property,

Tenn. Code Ann. § 39-14-103, or

       (b) the accused (1) knowingly exercised control over the property of another, (2)

without the owner’s consent, and (3) with the intent to deprive the owner of the property,

Tenn. Code Ann. § 39-14-103; and

       (c) the value of the property in question exceeds $1,000.

       In this case, the state introduced evidence that placed the stolen property in the



                                                  3
hands of the appellant shortly after the burglary and again the next day. He certainly

exercised control over the property because he personally showed the jewelry to Farrar

and later sold the property to him and another person. He was in possession of the

property without the owner’s consent. It is obvious that the appellant had every intent of

depriving the owner of the property because he sold the property.

         There is sufficient evidence contained in the record to support a finding by a

reasonable trier of fact that the appellant was guilty of theft over $1,000 beyond a

reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).



                                                II.



         The appellant contends that the trial court committed error of prejudicial dimensions

by charging the jury on the law regarding “recently stolen property.” He cites an Alabama

case to support his theory that the instruction shifted the burden of proof to the defendant

to prove his innocence.

         The appellant overlooks that trial counsel sought this instruction. Moreover, it was

discussed by counsel and the trial court regarding its effect. The following colloquy took

place:

                MR. MARLOW: One thing I am going to ask is in this
                particular case, is the Court going to give in its instructions the
                inference of possession of recently stolen property since this
                is a theory based upon exercise and control versus the actual
                obtain? Is the Court inclined to give that instruction or not?

                THE COURT: Yes. As you might recall the instructions on
                recent possession can go two ways. One is that the jury can
                infer that that was the person that took it, or they may infer that
                he had knowledge it was taken through theft which goes to the
                intent required for the theory of exercising control.
                        Now, the instructions do read, however, not -- “If you
                find beyond a reasonable doubt from the evidence that the
                property in question had been recently stolen and soon
                thereafter the same property was discovered in the exclusive
                possession of the defendant, this possession, unless
                satisfactorily explained, is ordinarily a circumstance from which
                you may reasonably draw an inference that the defendant had
                knowledge that the property had been stolen.”


         The fallacy in the appellant’s argument is that a party cannot ask the trial court to

                                                4
give an instruction and later challenge the instruction on appeal. In other words, the

appellant cannot, from his viewpoint, invite the trial court to give an erroneous instruction

and, as here, challenge the very instruction that was sought by the party. State v. Thien

Duc Le, 743 S.W.2d 199, 202 (Tenn. Crim. App.), per. app. denied (Tenn.1987); see State

v. Dickerson, 885 S.W.2d 90, 91 (Tenn. Crim. App.), per. app. denied (Tenn. 1993); State

v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993), per. app. denied (Tenn. 1994).

Thus, this issue has been waived.

       This Court parenthetically notes that the appellate courts of this state have held that

this instruction is constitutional. See Bales v. State, 585 S.W.2d 610 (Tenn. 1979); State

v. Hawk, 688 S.W.2d 467, 473-74 (Tenn. Crim. App. 1985); State v. Ratliff, 673 S.W.2d

884, 885-86 (Tenn. Crim. App), per. app. denied (Tenn. 1984); State v. Craig, 655 S.W.2d

186, 191 (Tenn. Crim. App. 1983).

       This issue is without merit.



                                             III.



       During the cross-examination of James Farrar, defense counsel asked the witness

if he or any member of his family had been “promised” anything for the testimony that he

was giving for the state. The following colloquy occurred between Farrar and defense

counsel:


              Q. Mr. Farrar, have you been promised anything for your
              testimony here today?

              A. No, sir.

              Q. Has any member of your family been promised anything
              for your testimony here today?

              A. No.

              Q. No consideration for your testimony?

              A. No, sir. Ain’t nobody promised me nothing.

              Q. Okay. Have they promised somebody else anything for
              your testimony today?

              A. No. The one thing I know is Terry Bowen and my son
              broke in a house, but I didn’t testify for him. Both of them was

                                              5
              guilty, went in on those poor, old people on that house and tore
              it all to pieces. Poor old lady fixing to have a baby. They went
              in there and riddled her house. I’m not taking up for him or the
              man.

              Q. All right. Now that you have brought that up so graciously,
              the lady came into this courtroom, did she not, and pointed out
              somebody else as the man who came in? Did not point out
              this defendant, but pointed out your son, didn’t she?
                   Yes or No. And explain your answer.

              A. When the lady come in here, the little girl was kind of a
              little retarded. Another colored guy walked in back here, but it
              was Terry Bowen and my son broke in that house with them
              people. And went in there and riddled the poor old peoples
              stuff, and they ain’t got a dime. They thought they had a pill.
              They went in there to rob them for pills. Got their TV and took
              it out and set it over in the field.

              Q. Now, your son is still facing those charges, isn’t he?

              A. Both of them are facing them charges as far as I know. I
              ain’t taking up for my son, because he’s a dope addict. The
              best thing that boy needs -- he needs help or in jail, one.



       Defense counsel sought to impeach Farrar’s testimony to the extent that the

burglary charges were still pending against the appellant. He called the clerk of the court.

The clerk testified that the warrants against the appellant had been dismissed after a

probable cause hearing. The warrants against Farrar’s son had been retired on motion of

the state. When defense counsel attempted to move the warrants into evidence, the

assistant district attorney general objected. The trial court ruled that the warrants could not

be moved into evidence. The trial court said in ruling:


              THE COURT: If it is relevant, it is so remotely relevant to
              include this line of inquiry it would, in the Court’s opinion,
              confuse the jury on the true issues here.

                      Under Rule 404, the Court will rule that the prejudicial
              effect in that it might confuse the jury as to what is the relevant
              issue here outweighs the probative value.


                                              A.


       The evidence that the appellant attempted to introduce was collateral to the principle

matter in dispute. A collateral fact is defined as “one which affords no reasonable

inference as to the principle matter in dispute.” State v. Marlow, 665 S.W.2d 410, 412



                                              6
(Tenn. Crim. App. 1983); per. app. denied (Tenn. 1984) (citing Saunders v. City and

Suburban R. Co., 99 Tenn. 130, 41 S.W. 1031 (1897)).

       Prior to the enactment of the Tennessee Rules of Evidence, a party was not entitled

to inquire about collateral facts during cross-examination. See Franklin v. Franklin, 90

Tenn. 44, 49, 16 S.W. 557, 558 (1891); Marlow, 665 S.W.2d at 412; State v. Hill, 598

S.W.2d 815, 820 (Tenn. Crim. App. 1980); Honeycutt v. State, 544 S.W.2d 912, 915-916

(Tenn. Crim. App. 1976). However, if counsel was permitted to inquire into a collateral

matter during cross-examination, counsel was bound by the witness’s answers; and

counsel could not call other witnesses in rebuttal to prove facts which were inconsistent

with the answers given by the witness during cross-examination. See McGowen v. State,

221 Tenn. 442, 451, 427 S.W.2d 555, 559 (1968); Livermore Foundry & Machine Co. v.

Compress Co., 105 Tenn. 187, 201, 58 S.W. 270, 273 (1900); Franklin, 90 Tenn. at 49,

16 S.W. at 558; Marlow, 665 S.W.2d at 412.

       The Tennessee Rules of Evidence do not mention the collateral facts rule.

Moreover, it is unknown if this rule will continue to be recognized. See Neil P. Cohen et

al., Tennessee Law of Evidence, § 613.5 (3rd ed. 1995).



                                            B.



       The collateral facts rule should be maintained to assist trial courts in excluding

evidence that is irrelevant, Tenn. R. Evid. 402, or evidence that is time-consuming and has

little, if any, probative value. Tenn. R. Evid. 403. In this case, the trial court properly

excluded the certified judgments that the accused attempted to introduce into evidence.

However, the trial court should have relied upon Tenn. R. Evid. 403 rather than Rule 404.

In short, the trial court reached the right result, but for the wrong reason. This issue is

without merit.




                                          _____________________________________
                                             JOE B. JONES, PRESIDING JUDGE




                                            7
CONCUR:



_______________________________________
     PAUL G. SUMMERS, JUDGE



_______________________________________
     JOSEPH M. TIPTON, JUDGE




                                  8
