        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              September 9, 2015 Session


               STATE OF TENNESSEE v. TOBY LYNN YOUNG

                  Appeal from the Circuit Court for Warren County
                     No. F14202    Larry B. Stanley, Jr., Judge




                No. M2015-00712-CCA-R3-CD Filed January 12, 2016
                        _____________________________

A Warren County jury found the Defendant, Toby Lynn Young, guilty of theft over
$10,000, evading arrest, and driving on a suspended license, second offense. The trial
court sentenced the Defendant to a total effective sentence of twelve years‟ incarceration.
On appeal, the Defendant challenges the trial court‟s failure to properly instruct the jury
on identity pursuant to State v. Dyle, 899 S.W.2d 607 (Tenn. 1995). Upon review, we
affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

John P. Partin, District Public Defender, and Susan N. Marttala, Assistant District Public
Defender, McMinnville, Tennessee, for the appellant, Toby Lynn Young.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
Lisa Zavogiannis, District Attorney General; and Justin Walling, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                        I. Factual and Procedural Background

      In August 2013, the Warren County Grand Jury indicted the Defendant for theft
over $10,000, a Class C felony; evading arrest with risk of harm to bystanders, a Class D
felony; and driving on a suspended license, second offense, a Class A misdemeanor. At
trial, Mark Gary Bottoms testified that, on July 16, 2013, he drove his 2005 Yamaha FJR-
1300 motorcycle to his relatives‟ home on Harrison Ferry Road. Mr. Bottoms placed his
helmet on his motorcycle before going inside the residence. He parked the motorcycle
near a carport, making it visible from the road. About forty-five minutes later, when Mr.
Bottoms went outside to retrieve his cell phone, he discovered that the motorcycle had
been stolen. Mr. Bottoms testified that the motorcycle was worth around $9,000 and he
had added a windshield and tank bag to the motorcycle that were worth an additional
$600 total. Mr. Bottoms stated that he had a cell phone, digital camera, GPS system,
prescription glasses, and multiple tools in the saddle bags of his motorcycle that were
valued at about $1,500. Additionally, his helmet, which was also taken, was worth $600.

       Mr. Bottoms reported the theft to police. Mr. Bottoms recalled that, while an
officer was taking the report, the officer received photographs of some of the stolen
property that had been recovered at another location. Mr. Bottoms identified his property
from the photographs. Mr. Bottoms testified that he did not know the Defendant and he
did not give anyone permission to take his motorcycle or any of the other items.

       Two days after the theft, police informed Mr. Bottoms that they had recovered a
motorcycle on Short Mountain Road. Mr. Bottoms accompanied officers to the location,
where he positively identified the motorcycle as his. The motorcycle had been pushed
off the road into some bushes. Although the motorcycle was damaged, Mr. Bottoms was
able to drive it home. He testified that his helmet, the motorcycle‟s windshield, the
saddle bags, and the tank bag were not with the motorcycle and the items were never
recovered. Regarding the helmet, Mr. Bottoms explained that it was a full face helmet
with a clear shield on the front.

       Investigator Kevin Murphy of the Warren County Sheriff‟s Department testified
that he was on patrol near the Short Mountain area on July 16, 2013, when he received a
“be on the lookout” (“BOLO”) alert from dispatch. The BOLO alert was for a stolen
blue Yamaha motorcycle with blue saddle bags. As the BOLO was announced,
Investigator Murphy looked to his right and saw a motorcycle matching that description
being driven through a yard “coming right at [him].” Investigator Murphy testified:

      At that particular time I didn‟t know that it was [the Defendant]. It didn‟t
      click. I saw [the Defendant‟s] face. He was wearing a helmet and he had
      the face mask up but you could see his whole face, you could see his
      goatee. He was shaved right through here but he had the black goatee and
      the dark eyebrows. Also I kept on going and I turned around and he went
      that way. I chased after him. He was driving really fast. I could not catch
      up to him. I called it in and said I was trying to catch up to this motorcycle.
                                           -2-
       I think that it turned down Newt McKnight Road, which is a road that turns
       to the left and goes toward Short Mountain Road.

       When Investigator Murphy could not catch up to the motorcycle, he returned to
the location where he initially saw the motorcycle—the yard outside of a trailer owned by
the Defendant‟s friend, Zachary Turner. Investigator Murphy intended to interview
anyone at the trailer to “see who it was on the motorcycle[.]” When he pulled into the
yard, Investigator Murphy saw the Defendant‟s dirt bike. Investigator Murphy knew it
was the Defendant‟s dirt bike because he knew the Defendant and had seen the Defendant
with the dirt bike several times. He explained, “It was the one [the Defendant] drives. It
may actually be his father‟s but it‟s the one he rides.” Investigator Murphy stated that, as
soon as he saw the Defendant‟s dirt bike, he realized that it had been the Defendant he
had seen on the stolen motorcycle.

        Investigator Murphy testified that he found some of the victim‟s stolen property on
the ground beside the Defendant‟s dirt bike. Specifically, he found the “inner bags of the
hard saddle bags which were full of like the rain coat, the pants, the tools, the different
things that was [sic] identified by [the victim].” He knocked on the door of Mr. Turner‟s
trailer, but no one answered. Investigator Murphy testified that several officers assisted
in the attempt to locate the Defendant, but the Defendant was not taken into custody until
the following day after the motorcycle was recovered in Cannon County. Investigator
Murphy explained that Sheriff Young of the Cannon County Sheriff‟s Department
received an anonymous tip, which led them to the location of the motorcycle.

       Investigator Steven Carpenter of the Warren County Sheriff‟s Department testified
that he was leaving court on the day of the theft when he received a phone call from his
captain, who told him to go to the Short Mountain area and look for the stolen
motorcycle. Investigator Carpenter called Investigator Murphy to get a description of the
motorcycle and a location of where Investigator Murphy had last seen it. Investigator
Carpenter did not recall whether Investigator Murphy mentioned the Defendant‟s name
during their phone call. Investigator Carpenter testified:

               I was riding outbound on Short Mountain Road towards Cannon
       County. It was right before the Cannon County line I saw a motorcycle
       coming towards me fitting the description of the one that was reported
       stolen. The driver of the motorcycle saw me and [] turned around in the
       road and took off back the other way. At that point I turned on my blue
       lights and sirens and attempted to stop the motorcycle.

     Investigator Carpenter explained that the motorcycle was traveling at a high rate of
speed—going at least seventy or eighty miles per hour on the “little back roads.”
                                           -3-
Investigator Carpenter testified that, when the motorcycle was on Spurlock Road, the
driver of the motorcycle stopped, turned around, and came back towards Investigator
Carpenter. The motorcycle was approximately a half to a quarter of a mile ahead of
Investigator Carpenter when it turned around. Investigator Carpenter explained:

              At that point I just stopped in the middle of the road because I knew
       I wouldn‟t be able to turn around and catch back up to him. I just stopped
       in the middle of the road and rolled my window down and just looked at
       him when he come [sic] by and tried to ID him.

Investigator Carpenter stated that he was able to identify Defendant as the driver of the
stolen motorcycle. He explained that the Defendant had on a blue helmet but the face
shield on the helmet was up. The Defendant was going about twenty-five to thirty miles
per hour at the time he passed Investigator Carpenter. Investigator Carpenter stated,
“You could see [the Defendant‟s] goatee, you could see his whole face when he come
[sic] by.” Although Investigator Carpenter turned around and attempted to pursue the
Defendant, he never regained sight of the Defendant.

       Several days later, investigators in Warren County received a phone call from
Sheriff Young of Cannon County. Sheriff Young explained that he had received an
anonymous call advising him of the location of the stolen motorcycle. Investigators
Carpenter and Murphy went to the location in Cannon County to retrieve the motorcycle.
Investigator Carpenter testified that the motorcycle was found on a private, gravel lane.
The motorcycle had been pushed off the side of the road into some tall grass and bushes,
and it could not be seen from the road. He identified the motorcycle as the one he had
seen the Defendant driving. According to Investigator Carpenter, the victim came to the
location and identified the motorcycle as well. On cross-examination, Investigator
Carpenter testified that the motorcycle was recovered about ten to fifteen miles from Mr.
Turner‟s trailer. However, Investigator Carpenter knew Mr. Turner and stated that he
was “certain” it was not Mr. Turner he had seen on the stolen motorcycle. Investigator
Carpenter stated he was 100 percent certain of his identification of the Defendant.

      Investigator Carpenter arrested the Defendant the following day. When he ran the
Defendant‟s driver‟s license, Investigator Carpenter found that the Defendant‟s license
was suspended due to an incident occurring in Cannon County.

        At the close of the State‟s case-in-chief, the Defendant moved for a judgment of
acquittal on the charge of evading arrest with a risk of harm to bystanders. The trial court
granted the Defendant‟s motion for judgment of acquittal as to the Class D felony but
allowed the Class E felony of evading arrest while operating a motor vehicle to proceed
to the jury. The defense rested without presenting proof.
                                           -4-
        Regarding the issue of identity, the trial court instructed the jury as follows:

                The [C]ourt charges you that the identity of the defendant must be
        proven in the case on the part of the State to your satisfaction beyond a
        reasonable doubt. In other words, the burden of proof is on the State to
        show that the defendant now on trial before you is the identical person who
        committed the alleged crime with which he is charged. In considering
        identity of a person, the Jury may take into consideration all of the facts and
        circumstances in the case. The Court further charges you that if you are
        satisfied from the whole proof in the case beyond a reasonable doubt that
        the defendant committed the crime charged against him and you are
        satisfied beyond a reasonable doubt that he has been identified as the
        person who committed the crime charged, then it would be your duty to
        convict him. On the other hand, if you are not satisfied with the identity
        from the proof or if you have a reasonable doubt as to whether he has been
        identified from the whole body of the proof in the case, then you should
        return a verdict of not guilty.1

       Following deliberations, the Defendant was convicted of theft over $10,000,
evading arrest while operating a motor vehicle, and driving on a suspended license,
second offense. At a sentencing hearing conducted August 1, 2014, the trial court
sentenced the Defendant as follows:

       Offense                Classification              Offender                      Sentence
                                                        Classification
 Theft over $10,000               C felony            Range III, persistent          Twelve years

   Evading Arrest                 E felony              Range III, career               Six years

    Driving on                A misdemeanor                     N/A               Eleven months and
Suspended License,                                                                 twenty-nine days
 Second Offense

The court ordered all sentences to run concurrently, for a total effective sentence of
twelve years to serve in the Department of Correction.


        1
         See 7 T.P.I.—Crim. 42.05(a) (18th ed. 2014) (setting out an alternative identity instruction that
may only be used when identification is not a material issue in the trial).

                                                  -5-
       On August 26, 2014, the Defendant filed a timely motion for new trial. The
Defendant filed amendments to his motion for new trial on January 6 and January 27,
2015. The trial court conducted a hearing on the Defendant‟s motion for new trial on
January 28, 2015. Although the trial court appeared to overrule the Defendant‟s motion
for new trial, the trial court did not enter a written order denying the motion for new trial,
and the record contains no minute entry reflecting a denial of the motion. Six days after
the hearing, on February 3, 2015, the Defendant filed a third amendment to his motion for
new trial, asserting that the trial court erred in failing to instruct the jury on identity
pursuant to State v. Dyle. The trial court conducted a second hearing on March 11, 2015,
and entered a written order denying the Defendant‟s motion for new trial on April 14,
2015. This timely appeal followed.

                                        II. Analysis

        On appeal, the Defendant contends that the trial court‟s failure to instruct the jury
using the expanded instruction on identity from Dyle was reversible error. He argues
that, although he failed to request the Dyle instruction, the trial court was required to give
the instruction because identification of the Defendant as the driver of the stolen
motorcycle was the key issue at trial. Moreover, the Defendant asserts that the trial
court‟s error is a non-structural constitutional error and that the State cannot show that it
is harmless beyond a reasonable doubt. The State responds that the Defendant has
waived this issue by failing to request the enhanced jury instruction from Dyle, or
otherwise object to its omission, and by failing to raise the issue in a timely motion for
new trial. The State argues that this court‟s review is thus limited to plain error.
Alternatively, the State maintains that the Defendant is not entitled to relief under
harmless error review.

        In State v. Dyle, the Tennessee Supreme Court acknowledged that the “accuracy
of eyewitness testimony” may be affected by the “fallibilities of human sense perception
and memory” and that eyewitness testimony “is prone to many outside influences (police
interrogations, line-ups, etc.) and is often decisive.” Dyle, 899 S.W.2d at 612. In light of
that acknowledgment, our supreme court found that “the pattern identity instruction
traditionally given in Tennessee [was] not adequate in cases where identity is a material
issue.” Id. For this reason, the court promulgated a more comprehensive jury instruction
for cases in which identity is a material issue. The instruction, which was later
incorporated into the Tennessee Pattern Jury Instructions, provides as follows:

       One of the issues in this case is the identification of the defendant as the
       person who committed the crime. The state has the burden of proving
       identity beyond a reasonable doubt. Identification testimony is an
       expression of belief or impression by the witness, and its value may depend
                                            -6-
       upon your consideration of several factors. Some of the factors which you
       may consider are:

               (1) The witness‟ capacity and opportunity 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
               which it was made, including whether it is the product of the
               witness‟ own recollection;

               (3) The occasions, if any, on which the witness failed to make
               an identification of the defendant, 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 surrounding such identifications.

       Again, the state has the burden of proving every element of the crime
       charged, and this burden specifically 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 identification testimony in light of all the proof you
       have a reasonable doubt that the defendant is the person who committed the
       crime, you must find the defendant not guilty.

Id.; see also 7 T.P.I.—Crim. 42.05 (18th ed. 2014). The Dyle Court held that this
instruction must be given when identification is a material issue and it is requested by the
defendant. Dyle, 899 S.W.2d at 612. Failure to give the instruction under these
circumstances is plain error. Id. The court further held that, if identification is a material
issue and the defendant does not request the instruction, the failure to give the enhanced
instruction will be reviewable “under a Rule 52 harmless error standard.”2 Id. Identity is
a material issue “when the defendant puts it at issue or the eyewitness testimony is
uncorroborated by circumstantial evidence.” Id. at 612 n.4.

       2
         The text of Rule 52 (“Harmless Error and Plain Error”) of the Tennessee Rules of Criminal
Procedure was deleted in 2009 because harmless error and plain error standards are covered by amended
Tennessee Rule of Appellate Procedure 36(b).
                                                -7-
                                         A. Waiver

       We must initially address the State‟s contention that, by failing to request the Dyle
instruction or otherwise object to its omission, the Defendant has waived our review of
the issue. We disagree. In its ruling, the Dyle Court specifically contemplated a
defendant‟s failure to request the instruction and provided that, in such a situation, the
issue is not waived; it is reviewable by the appellate court under a harmless error
standard. Dyle, 899 S.W.2d at 612. The State has not presented, nor can we find, a case
in which this court has found that a defendant waived the issue of the trial court‟s failure
to provide the Dyle instruction when the defendant failed to request the instruction or
otherwise object to its omission.

        The State also asserts that the Defendant has waived this issue by failing to raise it
in a timely motion for new trial. The State argues that, although the Defendant raised the
issue in an amended motion for new trial, that amendment was not filed “until after the
trial court conducted the hearing on the motion for new trial and ruled that those issues
were without merit.” In a reply brief, the Defendant responds that his amendment was
timely because it was filed before the trial court entered an order denying his motion for
new trial.

        Tennessee Rule of Criminal Procedure 33(b) provides that trial courts should
liberally allow amendments to the motion for new trial until the day of the motion
hearing. Tenn. R. Crim. P. 33(b); see also State v. Lowe-Kelley, 380 S.W.3d 30, 34
(Tenn. 2012); State v. Hatcher, 310 S.W.3d 788, 800 (Tenn. 2010). In Hatcher, our
supreme court advised:

       . . . [T]rial trial courts should not hold any hearing on a motion for new trial
       until a reasonable time after the sentencing hearing has been held, sentence
       has been imposed, and the judgment order entered. If the defense files a
       timely motion for new trial, the trial court should provide the defense with
       ample opportunity to amend the motion prior to holding the new trial
       hearing. If new counsel is sought and obtained, additional time for
       amendments to the motion for new trial may be granted as necessary. Once
       the hearing on the motion for new trial is heard and an order denying a
       new trial has been entered, however, motions to make additional
       amendments must be denied.

Hatcher, 310 S.W.3d at 804 (emphasis added). In a footnote, the court then emphasized
that trial courts should enter promptly into the record a written order reflecting the denial

                                            -8-
(or grant) of a motion for new trial. Id. at 304 n.6 (citing State v. Byington, 284 S.W.3d
220, 225 (Tenn. 2009)).

        Based upon the above-quoted language from Hatcher, we conclude that the
Defendant‟s amendment to the motion for new trial, which was filed after the hearing but
before the trial court‟s order denying relief, was timely. See State v. Julio Ramirez, No.
M2009-01617-CCA-R3-CD, 2011 WL 2348464, at *7-8 (Tenn. Crim. App. June 8,
2011), perm. app. denied (Tenn. Sept. 21, 2011) (explaining that, under Hatcher, the
defendant could not amend his motion for new trial after the trial court‟s minute-entry
denying the motion for new trial because “[a]fter this date, the trial court was without
jurisdiction to entertain amendments to the Defendant‟s motion for new trial[]”); see also
State v. Cleo Henderson, No. W2012-01480-CCA-R3-CD, 2013 WL 6157039, at *4
(Tenn. Crim. App. Nov. 21, 2013), perm. app. denied (Tenn. Mar. 5, 2014) (citing to
Hatcher for the proposition that “[a]fter the denial [of the motion for new trial], the trial
court could no longer entertain amendments to the motion for new trial[]”). Thus,
because the Defendant presented the issue of the trial court‟s failure to instruct the jury
pursuant to Dyle in a timely filed amendment to his motion for new trial, the issue is not
waived.

                               B. Harmless Error Analysis

        Turning now to the question of whether the trial court erred in failing to provide
the Dyle instruction, we agree with the Defendant that identity was a material issue at
trial. In opening statement, defense counsel commented:

       [T]he bulk of the State‟s prosecution against [the Defendant] is centered
       upon a fleeting identification while chasing someone on a motorcycle that
       they never catch. Under these circumstances, the accuracy rate of such an
       identification, I would submit, on a scale of 0 to 10 would certainly be way
       lower than 9 or a 10 and this would be a required number for the State
       carrying the burden of proof.

Counsel questioned whether jurors had “ever made an error in identification or in
judgment” and asserted that Investigators Murphy and Carpenter were “human like the
rest of us and they too can . . . hastily form an opinion made in error.” During closing
argument, counsel argued that the investigators were mistaken in their identification of
the Defendant and their testimony should not be enough to convict the Defendant. The
Defendant clearly put his identity as the perpetrator of the offense at issue during trial.
Thus, the trial court should have given the more detailed identity instruction announced
by Dyle and contained in Tennessee Pattern Instruction 42.05. See Dyle, 899 S.W.2d at
612.
                                            -9-
        The Defendant concedes that he failed to request the enhanced identity instruction.
According to Dyle, when identification is a material issue and the defendant does not
request the enhanced instruction, failure to give it will be reviewable under the harmless
error standard now found in Tennessee Rule of Appellate Procedure 36(b). See id. Rule
36(b) provides, in pertinent part, “A final judgment from which relief is available and
otherwise appropriate shall not be set aside unless, considering the whole record, error
involving a substantial right more probably than not affected the judgment or would
result in prejudice to the judicial process.” Tenn. R. App. P. 36(b).

        However, the Defendant asserts that the trial court‟s error is a non-structural
constitutional error, requiring the State to establish that the error is harmless beyond a
reasonable doubt. See State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). We
recognize that “a defendant has a constitutional right to a correct and complete charge of
the law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990), superseded by statute on
other grounds as stated in State v. Reid, 91 S.W.3d 247, 313 (Tenn. 2002). The supreme
court‟s statement in Teel, however, was made in the context of the omission of the
definition of rape, the underlying felony for the defendant‟s felony murder charge. Teel,
793 S.W.2d at 249. Certainly, the failure to instruct the jury on a key element of an
offense is a constitutional error subject to harmless error analysis. See State v. Ducker,
27 S.W.3d 889, 899 (Tenn. 2000). Not every erroneous jury instruction, however, rises
to the level of constitutional error. See Miller v. State, 54 S.W.3d 743, 746 (Tenn. 2001)
(clarifying that State v. Brown, 836 S.W.2d 530 (Tenn. 1992), “did not declare or imply
that the potentially confusing „premeditation may be formed in an instant‟ jury instruction
infringed upon a defendant‟s constitutional rights”). In Dyle, our supreme court did not
declare or imply that the enhanced jury instruction on identity was necessitated by a
defendant‟s constitutional rights. Moreover, the court explicitly stated that a trial court‟s
failure to provide the enhanced jury instruction when identity was a material issue and the
defendant failed to request the instruction was a matter reviewable under the harmless
error standard of Rule 52 of the Tennessee Rules of Criminal Procedure (now found in
Rule 36(b) of the Tennessee Rules of Appellate Procedure). Accordingly, we conclude
that the Dyle jury instruction is not an instruction that is constitutionally required, and we
will analyze the trial court‟s failure to provide the Dyle identity instruction under the non-
constitutional harmless error standard of Rule 36(b).

        The proof at trial reflects that both Investigator Murphy and Investigator Carpenter
positively identified the Defendant as the driver of the stolen motorcycle. Both witnesses
were familiar with the Defendant and testified that they could clearly see the Defendant‟s
whole face through the open shield on the motorcycle helmet. Although Investigator
Murphy testified that it was not until he saw the Defendant‟s dirt bike that his
identification of the Defendant as the driver of the stolen motorcycle “clicked,”
                                            - 10 -
Investigator Carpenter testified that he stopped his car and rolled down his window as the
motorcycle passed him so that he could get a good look at the driver. The motorcycle
passed by Investigator Carpenter going only twenty-five to thirty miles per hour.
Investigator Carpenter testified that he immediately identified the Defendant and stated
that he was 100 percent sure of his identification. Additionally, the reliability of the
investigators‟ identifications was corroborated by the location of the dirt bike the
Defendant was known to drive in the same yard where Investigator Murphy first saw the
stolen motorcycle. Moreover, several of the victim‟s items that were stolen with his
motorcycle were found on the ground beside the Defendant‟s dirt bike. The
corroborating evidence thus supported the reliability of the eyewitness identification in
this case. We conclude that the trial court‟s failure to give the enhanced identity
instruction in these circumstances was harmless error. See Tenn. R. App. P. 36(b). The
Defendant is not entitled to relief.

                                    III. Conclusion

        In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.

                                                   _________________________________
                                                   ROBERT L. HOLLOWAY, JR., JUDGE




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