         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                         DECEMB ER SESSION, 1997       September 10, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

STATE OF TENNESSEE,                )    C.C.A. NO. 03C01-9703-CR-00117
                                   )
           Appellee,               )    SULLIVAN COUNTY
                                   )
vs.                                )
                                   )    HON. R. JERRY BECK, JUDGE
LON MITC HEL L PIER CE, JR .,      )
                                   )    (FELONY MURDER; THEFT OVER
           Appe llant.             )    $10,000; MISDEMEANOR THEFT;
                                   )    EVADING ARREST)


FOR THE APPELLANT:                      FOR THE APPELLEE:

JAMES S. ROACH                          JOHN KNOX WALKUP
Attorney at Law                         Attorney General and Reporter
128 E. Market Street
Johnson City, TN 37604                  MARVIN E. CLEMENTS, JR.
                                        Assistant Attorney General       and
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
DONALD E. SPURRELL                      Nashville, TN 37243
Attorney at Law
128 E. Market Street
Johnson City, TN 37604                  H. GREELEY WELLS
                                        District Attorney General

                                        TERESA M. SMITH
                                        Assistant District Attorney General
                                        P.O. Box 526
                                        Blountville, TN 37617




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION
                The Appella nt, Lon M itchell Pierce , Jr., was fou nd guilty by a Sullivan

Coun ty jury of the crim es of first degree felony murder, theft over $10,000,

misdemeanor theft, and evading arrest. At the time of the instant offenses, the

Appellant was fifteen years of age. Following a hearing in the Juvenile Court, the

Appellant was transferred to the Criminal Court for trial as an adult. Although the

Appellant was also indicted on a charge of simple pos session of co caine, the jury

returned a verdict of not guilty as to this count. In accordance with the sentencing

provisions for the capital crime of felony murd er, the tr ial cou rt fixed th e App ellant’s

sentence at life imprisonment. Following a sentencing hearing for the remaining

convictions, the trial court imposed an effective sentence of four years and ordered

that this sentence run con currently to the life sente nce. In this a ppeal a s of right, the

Appellant raises the following issues:


          I.    W h ether the State of Tennessee had jurisdiction over the
                offense s of felony m urder an d felony the ft;

          II.   Whether the evide nce is su fficient to sus tain the Appella nt’s
                conviction for felony m urder;

         III.   Whether the trial court properly denied the Appellant’s request
                for special instructions regarding the felony murder charge;

         IV.    Whether the court properly charged the jury regarding lesser
                offenses of felony murder; and

         V.     Whether the trial court erred in allowing the jury to sentence the
                Appellant to life in prison.


                      After a review o f the record, we affirm the judgment of the trial

court.




                                              2
                                      Background



             Although the events which resulted in the Appellant’s conviction for

felony murder occurred on November 22, 1995, in Sullivan County, Tennessee, the

events which ultima tely lead to this tragedy began in Orlando, Florida on November

2, 1995. O n this date in Orland o, Nora Com acho a nd her h usban d stopp ed at a

convenience store for gasoline. Passengers in the Comacho’s blue 1995 Dodge

Caravan included their fourtee n year old dau ghter, Sarah, the Appellant, age fifteen,

his sixteen year old girlfriend, April Worley, and a four year old child in Worley’s care.

Mrs. Comacho entered the convenience store to purchase a soft drink for her

daughter.    Upon Mrs. Comacho’s return to the minivan, an argument ensued

between herse lf and her daughter, Sarah, because the soft drink was in a cup and

not in a bottle. Mr. Comacho got out of the minivan and went to purchase a bottled

soft drink for his daugh ter. Meanwhile, Mrs. Comacho began to pum p gaso line into

the minivan’s gas tank. Sarah “slippe d over in the driver’s se at, hit the autom atic

[door] locks, turned the ignition on and dro ve off with the gas hose in the van.” An

employee of the convenience store immediately notified the Orlando Police

Depa rtment. Nora Comacho advised law enforcement authorities that her daughter

had taken her vehicle on two prior occasions, only to be returned without legal

repercussions. However, regarding the present offense, she advised authorities that

she wanted to press charges. The Dodge Caravan was subse quently e ntered in to

the NCIC computer to provide a nationwide bulletin of the stolen vehicle.



             After fleeing the convenience store, Sarah Comacho commandeered

the minivan for approximately twenty minutes before asking the Appe llant to drive

due to her inexp erience . The Appellant took control of the vehicle and returned the

                                            3
four year old child to his home. April Worley sugg ested that the trio travel to Bristol,

Virginia, in order to visit her grandmother. With the Appellant and Worley driving in

alternating shifts, the trio reached Virginia in about twelve hours. For the next

several weeks, the teenagers stayed with Worley’s grandmother at her res idenc e in

the Rice Terrace Apartments and in local mote ls. The three s pent th eir time “mos tly

[riding] around . . . to different cities [in Tennessee].” During this period, the group

was involved in several incidents of shoplifting, and on one occasion, “Sarah

[Comacho] got caug ht shop lifting a Notre Dam e jacket fro m K-M art in Kin gsport.”

Although they were able to escape, the group feared that the store personnel had

obtained the license plate number of the minivan. This concern prompted the trio

to steal a “license plate from the same color and type van [they] were driving.” They

located Laura Alice Rippetoe Bassett’s light blue Dodge Caravan, bearing Sullivan

Coun ty tag number 396-NXX, near the Target store in Johnson City. After stealing

the plate, th ey “ threw th e old plate in the dum pster at a m ini-mark et.”



              Twenty days after the theft of the van from Nora Comacho in Florida,

police officers in Bristol, Virginia, received information conc erning a pos sible stolen

blue Dodge minivan located in the Rice Terrace area. At approximately 3:15 p.m.

on November 22, 1995, Officers Matthew Quillen and Vic Jo rdan lo cated a vehic le

matching this description parked on Buckner Street near the Rice Terrace

Apartments.     Although the van appeared unoccupied and the officers never

observed anyone enter the van, the van pulled out of the parking lot about ten

minutes later. The officers no ticed that a male, late r identified as the App ellant, was

driving the van and that a female, later identified as April Wo rley, occupied the front

passenger seat. Q uillen and Jord an began following the minivan. As the van

approached an inte rsectio n, it failed to stop before turning right. At this point the

                                            4
officers turned on the patrol car’s blue lights to initiate a vehicle stop. The van failed

to respond, accelerated, and proceeded to pass a school bus that was unloading

children. At this point, the officers activated the emergency sirens. After a three

minute pursuit thro ugh Br istol, Virginia, du ring which the App ellant con tinued to

violate nume rous traffic law s, the minivan crossed into the state of Tennessee.

Bristo l, Tennessee police were notified of the pursuit and Q uillen and Jordan

returned to Virginia.



             Bristol, Tennessee Police Office r Jam es Bre uer co ntinue d the p ursuit

of the minivan.    Like his Virginia counterpart, Breuer activated all emergency

equipment on his patrol car, however, the Appellant refused to stop.               Breuer

described his pursuit as a low speed c hase, appro ximately forty-five miles per hour

in a twen ty-five m ile per hour speed zone, during which time the Appellant continued

to violate traffic law s. Breu er state d that th e min ivan “w ould slow down almost to a

stop to allow vehicles in front of him to pull over.” At one point during the pursuit, the

van “tapped” the back of a civilian vehicle at an interse ction, w hich ca used Breu er’s

patrol car to hit the back end of the van. No damage resulted to either vehicle.



             Lieutenant Dann y Bain es join ed Br euer’s fourtee n and one-h alf mile

pursu it as the chase proceeded away from the Bristol city limits. Once leaving the

city limits, Captain Daryll Chambers of the Sullivan County Sheriff’s Department took

the lead. Although the Br istol po lice office rs con tinued as ba ckup in the pursuit, the

officers deactivated their emergency equipment. Both Bristol police officers and

Sullivan Coun ty depu ties we re notifie d that th e pos sible stolen vehicle may c ontain

both narcotics and weapons. The chase continue d throug hout the county on Ro ute




                                            5
44, with speeds va rying between twenty-five miles per h our to sixty-five miles per

hour.



              Deputy Steve M ullins radioe d to Cha mbers that “he was. . .coming down

old 421 and he advised he would come down Hick ory Tree Road and try to cut them

off.” Shortly thereafter, Chambers was able to spot the blue lights of Mullins’ patrol

car, appro ximate ly four-te nths o f a mile in the distance. It appeared that Mullins had

“a road block set up” with his vehicle.          Although Mullins’ patrol car extended

approximate ly two feet over the center line, enough room remained in which a

vehicle could safely m aneuver aro und the de puty's car. Proof was introduced at trial

based upon a reconstruction of the collision. The reconstruction revealed that

oncoming traffic co uld safely m aneuve r around the positio ned pa trol car. In fact, a

Ford pickup truck pulling a dual axle cattle trailer was able to pass. The reenactment

also revealed that a vehicle travelin g app roxim ately 55 to 60 m iles pe r hour c ould

safely maneuver past the parked patrol car and turn onto Gree n Roa d imm ediate ly

past the roa d block. Additional testimon y indicated that the A ppellant could h ave

turned on to a side road prior to reaching the roadblock. Deputy Mullins positioned

hims elf behind the patrol car, and raised his weapon at the oncoming van.

Cham bers testified that, as the minivan approa ched th e roadb lock:

        . . .the van slowed some. It was in my mind at that time that it was
        going to stop. But, he slowed down to a constant speed and then he
        didn’t, he didn’t slow down any more and I was still right behind him.
        He proceeded on towards where the cruiser was at in the highway. He
        didn’t try to avoid co llision with the cruiser. H e didn’t try to go to the
        right. He didn’t, he dro ve straigh t into the fron t of that cruise r. . . .
        Upon impac t, the van veered off to the right. [Deputy] Mullins, it just
        sent him flying through the air, like a rag doll really, just, he went back
        and they [sic] was a tire truck . . . parked some distance from the
        cruiser behind the cruiser. And, it knocked him back, it looked like he
        hit the front of the truck and then veered off to the right, landed in the
        midd le of the highway. . . . I jumped o ut of my c ruiser an d I run to
        Steve and h ollered at him and s hook him, a nd he was b leeding real,

                                             6
      real bad he was blee ding. . . . And , then he q uit bleedin g, he w asn’t
      bleeding any more and I checked his pulse, he didn’t have a pulse, he
      wasn’t br eathing . . . .



Depu ty Mullins, a nineteen year veteran of the Sheriff’s Department, died on the

scene as a resu lt of massive head injuries sustained during the incident. The Bristol

police officers already on the scen e arres ted the Appe llant, Ap ril Worley, and Sarah

Comacho. No weapons were found in the vehicle, although officers did discover

one-ten th of one gram of cocaine, which the teens stated be longed to Wo rley’s aunt.



             In a subsequent statement to law enforcement officers, the Appellant

explained that “[t]he rea son I didn ’t stop [during the purs uit by law enforcement

officials] was because I was scared . . . all I wanted to do was get on the inte rstate

and get out of the van and leave it there and get away from it. . . .” Furthermore, he

recounted his version of the collision resulting in Deputy Mullins’ death:


      I saw the police car pull out across the road in front of me. He was
      across his lane and in my lane just a little bit, but I had enoug h room to
      go around him in my lane. I was trying to go around him and that’s
      what I wa nted to do .

      I saw the police officer open his car door and he pointed a . . . pistol at
      the van. . . .

       When I saw the pistol, I thought I put m y foot on the brake , I’m not sure
      if I did or not. I let go of the steering wheel and ducked straight down
      with my arm s covering my face. I then heard and felt the crash and
      knew I’d hit something. I thought I was swerving to the right and would
      miss the police office r when I d ucked my hea d.



             Based upon the evidence presented at trial, the jury found the Appellant

guilty of felony murder, felony theft of the minivan, misdemeanor theft of a license

plate, and evading arrest.



                                           7
                                        I. Jurisdiction



                In his first issue, the Appellant challenges his convic tion for felon y theft

of the minivan which established the predicate offense for his first degree murder

conviction. The Appellant, citing only an Illinois case as authority, argues that the

State of Tennessee lacked jurisdiction to prosecute the Appellant for a felony

committed in Florida a nd a killing c omm itted in Te nness ee. A fortiori, if there was

no theft, there could be no felony murder conviction. He offers no argument or

explanation in support of his conclusory statem ent. As such , he ha s effec tively

waived review of this issue. Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R.

10(b).     Notwithstanding waive r, we elect to proceed upon the merits of the

Appe llant’s conte ntion.



                Any person is liable to pu nishm ent unde r the la ws of this state for an

offense com mitted either w holly or partly within th is state. See Tenn . Code Ann. §

39-11-103 (a). Rule 1 8 of the Ten ness ee Ru les of C rimina l Proce dure p rovide s, in

part:

         (a) . . . offenses shall be prosecuted in the county where the offense
         was committed.

         (d) Offense s com mitted w holly or in pa rt outside th is state, under
         circumstances that give this state jurisdiction to prosecu te the offender,
         may be prosecuted in any county in which an element of the offense
         occurs, or in the ca se of a n offen se co mm itted wh olly outside th is state
         in any cou nty in which the offend er is found .


                There is no dispute that Deputy Mullins was killed in S ullivan County,

Tennessee. Thus, the State has jurisdiction over this homicide. However, the penal

laws of a particular sovereignty usually have no extraterritorial effect and, since one

sovereig nty cannot enforce the penal laws of another or punish offenses committed

                                               8
in and against another sovereignty, it is a general rule of criminal law that the courts

of a particular sovereignty have no jurisdiction of offens es co mm itted ou tside th eir

sover eign’s territorial jurisdictio n. 22 C.J .S. Criminal Law § 161(a ) (1989). See also

Coffee v. Peterbilt of Nashville, Inc., 795 S.W.2d 656, 659 (Tenn. 1990); 21 A M. J UR.

2 D Criminal Law § 344 (1981); P.H. Vartanian, Annota tion, Larcen y in Othe r State

or Country, 156 A.L.R. 862, 863 (1945). Thus, although a criminal may be found

within its territorial bord ers, a sta te will not attempt to punish a person for the

comm ission in an other sta te of a crime which is consummated and which is not of

such continuing nature as to constitute an infringement of the laws of the forum after

the alleged c riminal ha s entere d its territorial jurisd iction.   See P.H. Vartanian,

Annotation, Larceny in Other S tate or Co unty, A.L.R. at 863. The Appellant contends

that, since the felony theft of the Comacho van occurred in the State of Florida, the

State of Tennessee lacks jurisdiction over the offense. Again, if there is no theft,

there can be no felony murde r. Accordingly, we are confronted with the following

question: Is a perso n crim inally liable for theft under our current criminal code if that

person steals property outside this state and brings the stolen property into

Tennessee? We answer in the affirmative.



              According to an a ncien t rule of c omm on law , if a ma n stole good s in

one county and carried them into another, he might be indicted and tried in either;

because, for con venien ce sa ke, it was easier to try the offend er in the coun ty in

which he was apprehended, although the law of venue required that the crime be

tried by a jury of the vicinage. See P.H. Vartania n, Anno tation, Larceny in Other

State or Country , 156 A.L.R. at 864, footnote 3 (citing State v. Le Blanch, 31 N.J.L.

82 (186 4)). Thu s, a legal fiction was cre ated, that is ,




                                             9
       the continued possession of stolen property, animo furandi, is, at every
       step, a new caption and that therefore the stealing of property in one
       county of the State and taking it into another was larceny in the latter
       county. Every moment’s possession by the thief is a continuance of the
       trespass, and am ounts, in le gal conte mplation , to a new caption and
       asporta tion.

State v. Matthews, 87 Tenn. 689, 691-9 2, 11 S.W. 793, 793-94 (1889) (citations

omitted). See also 21 A M. J UR. 2d Criminal Law § 353; P.H. Vartanian, Annotation,

Larceny in O ther State or Co untry, 156 A.L.R. at 866.



              The State of Tennessee, which had at one time rejec ted this theory, see

Simpson v. State, 23 Tenn. (4 Hum.) 455 (1844), legitimatized this fiction of the

common law through the enactme nt of statutes providing in substance that “[w]here

property is stolen in another S tate an d brou ght into this Sta te, the ju risdictio n is in

any county into which the property is brou ght,” Matthews, 87 Tenn. at 690, 11 S.W .

at 793 (qu oting Te nn. Co de § 49 77 (185 7)); see also Henry v. S tate, 47 Tenn . (7

Cold.) 331, 33 3 (1870 ), and by mak ing it an offens e in this state to “bring in to this

state personal pro perty stolen in another state, knowing the same to have been

stolen.” See Tenn . Code § 4697 (1857); see als o Tenn. Code Ann. § 39-3-1115

(repealed 1989). This crime is authorized, not for the crime committed in the other

state, but for th e larce ny com mitted within th is state by the a ct of brin ging stolen

property in to the jurisd iction. See 50 A M. J UR. 2d Larceny § 126 (1 995).



              Argument may be made that, with the enactment of the 1989 Criminal

Code, base d large ly on the Model Penal Code, Tennessee abolished the offense of

bringing stolen pro perty into this state. W e hold to the contrary. With the passage

of Tennessee Code Annotated section 39-14-101 et seq., the legislature eliminated

the traditional distinctions between various unlawful takings in favor of one general



                                             10
theft statute. State v. Byrd, No. 03S 01-970 5-CR -00057 , slip op. at 4, S evier Co unty

(Ten n., Kno xville (he ard at K ingsp ort), Ap ril 27, 1998). The reason for the change

was to replace “antiquated and confusing statutes with a modern easily understood

langua ge.” Sentencing Commission Comments, Tenn. Code Ann. § 39-14-101.

Although the new chapter eliminated the antiq uated termin ology o f the old , it

continues to prohibit the criminal conduct contemplated by the former theft statutes,

see Byrd, No. 0 3S01 -9705 -CR- 0005 7, slip op. at 4, thereby, clearly encompassing

the offense o f bringing s tolen pro perty into the state. See Tenn. Code Ann. § 39-3-

1115. Tennessee Code Anno tated section 39-14-101 provides:

      Conduct denominated as theft in this part constitutes a single offense
      embracing the separate offenses heretofore known as: embe zzlem ent,
      false pretens e, fraudulent conversion, larceny, receiving/concealing
      stolen property, and other similar offenses.

(emph asis add ed).



             In construin g that "bring ing stolen property into this state" is included as

an "other similar offense" within the general theft provision of the current code, we

rely upon references to judicial decisions and common law interpretations to effect

the objec tives of the c ode. See Tenn. Code Ann. § 39-11-104.



             W hile the gen eral theft sta tute proh ibits the same conduct as the

former, the State is no long er require d to prove the elem ents of the former in order

to gain conviction un der the current statute. By its terms, Tennessee Code

Annotated section 3 9-14-10 3 provide s that “[a] pe rson co mm its theft of property if,

with intent to deprive the owner of property, the person knowingly obtains or

exercises control over the property without the owner’s effective consent.” In the

present case, it is un disputed that the App ellant exercised co ntrol over Nora



                                           11
Com acho ’s 1995 Dodge Caravan, without Ms. Comacho’s consent, while in Sullivan

County, Tennessee. See Tenn. Code Ann. § 39-11 -103; T enn. R . Crim . P. 18. T his

issue is w ithout me rit.



                            II. Sufficiency of the Evidence



              Next, the Appellant a rgues that the e vidence is insufficient to su pport

his conviction for felony murder committed during the perpetration of a theft. The

Appellant does not contest the sufficiency of the evidence resulting in his convictions

for felony theft, misdemeanor theft, and evading arrest. Relying extensively upon a

prior opinion by a panel of this cou rt, State v. Gilliam, C.C.A. No. 03-C-01-9109-CR-

00287, Ham ilton Cou nty (Ten n. Crim. A pp., Kno xville, Apr. 20, 1 992), perm. to

appeal denied, (Tenn . Sept. 21, 1992), he limits his sufficiency issue to whether the

hom icide w as m erely incidental, and not in perpetration of, the underlying offense.

Additionally, he challenges the constitutionality of the felony murder statute. Our

supreme court has, on previous occasions, addressed this issue and determined

that the felony murder statute is “a legitimate and constitutional legislative fun ction.”

State v. Walke r, 893 S.W.2d 429, 430 (Tenn. 1995) (emphasis added).                  The

Appellant questions the trial court’s interpretation of the lan guage “an y . . . theft” to

include misdem eanor thefts. A p anel of this court has recently addres sed this very

argument and, relying upon Walker, concluded that it was the legislature ’s intent to

encompass all theft offenses, regardless of moneta ry value of the property stolen,

within the felony m urder sta tute. See State v. Harris , C.C.A. No. 02C01-9603-CR-

00095 (Tenn. Crim. A pp., Jack son, De c. 3, 1997 ); Walker, 893 S.W.2d at 430

(citing State v. Hopper, 695 S.W .2d 530 , 535 (T enn. C rim. App . 1985)); see also




                                            12
State v. Randolph, 676 S.W.2d 943, 946 (Tenn. 1984).                 Thus, we reject the

Appellant’s constitutional challenge to Tennessee’s felony murder statute.



              When there is a c hallenge to the verdict based upon the sufficiency of

the evidence, this court must review the evidence in the light most favorable to the

prosecution and determine whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jack son v. V irginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979 ); State v. Cazes, 875 S.W.2d 253,

259 (Tenn. 1994); Tenn. R. App. P. 13(e). We do not reweigh or reevaluate the

evidence; these are iss ues re solved by the trier of fac t. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Furthermore, a guilty verdict accredits the testimony

of the witnesses for the State, and a presumption of guilt replaces the presumption

of innocen ce. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Guilt may be

predicated upon direct evidence, circumstantial evidence, or a combination of direct

and circums tantial evide nce. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App.

1995).



              In order to determ ine the issue of su fficiency of the evid ence in this

case, the controlling statutes must be analyzed. Appellant was convicted of first

degree murd er in the perpetration of a theft. Tennessee Code Annotated section

39-13-202 emb odies what is commonly referred to as “felony murder” and defines

it in part as “[a ] killing of ano ther com mitted in th e perpe tration of or a ttempt to

perpetrate any . . . theft.” Tenn. Code Ann. § 39-13-202(a)(2) (empha sis added).

A person is guilty of the c rime of the ft if “with intent to deprive the owner of prop erty,

the person know ingly obtains or exercise s control o ver the prop erty without the

owne r’s effective consent.” Tenn. Code Ann. § 39-1 4-103 (em phasis add ed). Prior

                                             13
to the 1989 revision of the criminal code, the only type of theft included in the felony

murder statute wa s larceny .     See Tenn. Code Ann. § 39-2-202 (Supp. 1982)

(repeale d 1989 ).



             It is well-established that the fundamental role of this Court in construing

statutes is to ascer tain and g ive effect to legislative intent. State v. Sliger, 846

S.W.2d 262, 263 (Tenn. 1993). The Legislature is presumed to know the existing

state of the law w hen it ena cts a statu te. Owen s v. State, 908 S.W .2d 923, 926

(Tenn. 1995). Moreover, the Legislature has said that statutes must “be construed

according to the fa ir impo rt of their terms , includin g reference to judicial decisions

and common law interpretations.” Tenn. Code Ann. § 39-11-104. Where, as here,

the intent of the Legislature appears clear when reading the ordinary meaning of the

statutory language, this Court should not limit or extend that language’s import,

regardless of how we might perceive the equities o f the caus e.            Overma n v.

Overman, 570 S.W.2d 857, 859 (Tenn. 1978). By the Legislature not limiting the

term “theft” in the felony murder statute, then we can only conclude that the

Legislature intended it to em body a ll types o f theft, inc luding all types forme rly

defined as som ething oth er than larc eny.



             As noted above , the Ap pellan t princip ally relies upon the case of State

v. Gilliam, C.C.A. No. 03-C-01-9109-CR-00287, Hamilton C ounty (T enn. C rim. App .,

Knoxville, Apr. 20, 1 992), perm. to appeal denied, (Tenn ., Sept. 21, 1992). The

instant case, however, can be distinguished from Gilliam. In Gilliam, the court

focused on the fact that the underlying felony of theft was theft by taking and that the

Appe llant’s purpose was to stea l the ca r and th at this goal had been accomplished.

Id. at 3. In the instant case, the theft with which Appellant was charged and

                                           14
convicted was based on his exercise of control over the s tolen pro perty without the

owne r’s effective consent.    The police chase was already in progress when the

crime of theft (exerc ising con trol over the stolen property) occurred in Sullivan

County, Tennessee. Because Appellant was driving the stolen vehicle at the time

of the incident, he was certainly exercising control over the s tolen pro perty. See

Tenn. Code A nn. § 39-14-1 03. The A ppellant explained th at “[t]he reaso n I didn ’t

stop [during the pursuit by law enforcement officials] was because I was scared

. . . all I wanted to do was get on the interstate and get out of the van and leave it

there and get away from it.” Obviously, from Appellant’s statement, he was in the act

of exercising control over the stolen property as he admitted that he wanted to get

rid of property of which he was not the owner. Furthermore, the instant case can be

distinguished from Gilliam in that the officers involved here knew that the veh icle was

stolen, regardless of the fact that the initial atte mpt to pull the vehicle over was for

a traffic violation.



              W e acknowledge that the killing must have been comm itted “in

pursuance of the unlawful act, and not collateral to it.” State v. Farmer, 296 S.W.2d

879, 883 (Tenn. 1956). However, we disagree with the Appellant’s argument that

his actions in the pres ent case we re collateral to the homic ide and bore no intimate

relation ship to the underlying felony of theft. A homicide is committed during the

perpetration of a felony if the homicide is committed within the res gestae of the

felony. See Smith v. State, 354 S.W.2d 450, 452 (Ten n. 1961). W ithin the context

of the felony murder rule, the res gestae requires that the felony and homicide be

part of a continuous transaction, that the h omicide be incident to the felony, or that

there be no brea k in the ch ain of eve nts betw een the felony an d the ho micide. See

gene rally Erwin S. Barbre, Annotation, What Constitutes Termination of Felony for

                                           15
Purpose of Felo ny-M urder Rule , 58 A.L.R.3d 851, 856, 865-874 (1974). The res

gestae embraces not only the actual facts of the transaction and the circumstances

surrounding it, but also the matters immediately antecedent to the transaction and

having a direct causa l connec tion with it, as well as acts immediately following it and

so closely co nnecte d as to form in reality a pa rt of the occ urrence . Payne v. State,

406 P.2d 922, 925 (Nev. 1965). Thus, the res gestae of the crime begins at the

point where an indic table attem pt is reach ed, and ends w here the chain of e vents

between the initia l crime and th e hom icide is broken . See Parker v. State, 570 So.

2d 104 8, 1051 (Fla. Dist. C t. App. 1 1 990); State v. Rider, 625 P.2d 425, 430-431

(Kan. 1981); Payne, 406 P.2 d at 924 ; Com mon wealth v. Kelly, 10 A.2d 431, 433 (Pa.

1940).



              The defendant’s actions must b e one c ontinuo us integra ted attem pt to

succ essfu lly com plete h is crime a nd es cape .       Facto rs to be cons idered in

determining whether there has been a break in the chain of circumstances include

the relationship between the underlying felony and the homicide in point of time,

place, an d caus al relations hip. Farmer, 296 S.W.2d at 883. In State v. Terry, our

supreme court discussed the following factors relating to the relationship between

the underlying crime and the homic ide: whe ther the victim was a w itness to th e theft-

related crime; w hether th e victim was in close proximity to the crime; and whether

the victim was killed because he might have tried to thwart the theft, expose the

theft, or interfere in any way with the commission of the theft. 813 S.W.2d 420, 424

(Tenn. 1991 ). In the c ase o f flight, an impo rtant co nside ration is whether the fleeing

felon has reache d a place of temp orary safe ty. See People v. Fo rd, 416 P.2d 132,

141 (Cal. 196 6), cert. denied, 385 U.S. 1018, 87 S. Ct. 737 (1967), overruled in part

by, Peop le v. Satc hell, 489 P.2 d 1361 (Cal. 197 1); People v. Boss, 290 P. 881, 883

                                            16
(Cal. 1930); Parker, 570 So. 2d at 1051 (citing LaFave, Substantive Criminal Law §

7.5 (1986)); Lamp kin v. State , 808 P.2d 694, 696 (Okla. Crim. App. 1991). If these

factors, considered in light of the circumstances of the particular incide nt, reve al a

definite break in the chain of events, eliminating the possibility of one continuous

transaction from the initial attempt of the underlying felony to the homicide, then the

felony m urder rule canno t be app lied.



               The police officer who was killed in the instant case was a witness to the

theft (as that term is defined by the Legislature) and he was standing in the pathway

of the stolen van as A ppellant e xercised control ove r that van b y driving it right into

the officer.    The victim was attempting to apprehend Appellant during the

commission of the theft. T he theft played a n integ ral role in the po lice office r’s

death. The theft was not collateral to the homicide.



               The Appella nt argues that it is conceivable that a strict and literal

interpretation of the theft sta tute as it relates to felony murder could sometimes lead

to “irrational ou tcomes n ot contem plated by either the le gislature o r the cou rts.”

Howeve r, Appellant’s case is not one of those s ituations. Sufficient e vidence exists

to supp ort the con viction for felon y murd er, and th is issue is w ithout me rit.



                              III. Special Jury Instructions



               Appellant submitted seven requests for jury instructions, four of which

related to the jury’s determination of whether the killing occurred during the

perpetration of the theft. The issue before us only involves the four requests dealing

with the perpetration of the theft. The trial court granted one of those requests in

                                             17
part, as that part followed the Tennessee Pattern Instruction, but it wholly denied the

other thre e.



                The trial court’s jury instruction on a killing committed in the perpetration

of a theft pro vided th at the k illing m ust ha ve bee n “clos ely connected to the alleged

theft and was not a separate, distinct and indepe ndent e vent.” Appellant submitted

instructions which expanded on the explanation of the term “perpetration” (proposed

jury instructions 1, 5, 6 and 7). See, e.g., Terry, 813 S.W .2d 420 ; Farmer, 296

S.W .2d 879 ; Gilliam, C.C.A. N o. 03-C -01-910 9-CR -00287 .



                In Tennessee, the trial court must charge the jury completely on the law

applicab le to the facts of the case . Poe v. S tate, 212 Tenn. 413, 370 S.W.2d 488,

491 (Tenn . 1963). Althou gh sp ecial re ques ts usu ally are entertained if fundamental

to the case, the trial judge may deny a special request when the existing instructions

fully cover the law on a s ubject. State v. Bryant, 654 S.W .2d 389, 390 (Tenn. 198 3).

Special jury instructions need not be given when the existing instructions are a

correct statement of the la w and adeq uately c over th e sub ject m atter co ntaine d in

the special request. Id; see also State v. Taylor, 771 S.W.2d 387, 399 (Tenn.

1989).



                The statute proscribing felony murder defines the crime as “[a] killing of

another committed in the perpetration of or attempt to perpetrate” any of several

enumerated offenses.         Te nn. Code Ann. § 39-1 3-202(a).         As the court’s jury

instructions elaborated, our law require s that th e killing b e “clos ely connected” to the

felony and not be a “separate, distinct and indepe ndent e vent.” Althou gh Ap pellan t’s

instructions might have further elaborated on the notion of “closely connected,” we

                                              18
nevertheless conclude that the instructions given by the trial court were a correct

statement of the law and adequately covered the subject m atter co ntaine d in

Appe llant’s special reque sts. We therefore, hold that the trial court d id not e rr in

refusing to give Appellant’s sp ecially requested ins tructions. This issue is without

merit.



                             IV. Lesser Included Offenses



              In its charge to the jury, the trial court instru cted the jury on the offenses

of felony m urder, se cond d egree m urder, voluntary manslaughter, reckless

homicide, and criminally negligent homicide. Appellant contends tha t the trial court

erred in ch arging th e lesser o ffenses to the crime of felony m urder.



              Appellant has not demonstrated that he was prejudiced in any way by

the trial cou rt’s instructions on these offenses. Furthermore, this Court does not see

how any prejudice could exist since Appellant was convicted of the highest offense

for which he wa s cha rged. A s the S tate co rrectly points ou t, this is certain ly not a

case where the Appellant can argue that he could have been found guilty either of

the greatest offense or nothing at all, and that a verdict of a lesser offense prejudiced

him by permitting a conviction of an offense which lies between the two extremes.

The jury rejected all of the lesser offenses and c onvicte d him of the greatest offense

charged. Therefore, Appellant was not prejudiced by the trial court charging the

lesser included offenses to felony murder. Even if there was any error in the trial

court charging the lesser included offenses, that error would be harmless. Tenn. R.

App. P . 36(b); Te nn. R. C rim. P. 52 (a). This iss ue is witho ut merit.




                                            19
                                     V. Sentencing



             Appellant argues that the trial co urt erred in allowing th e jury to

sentence him to life in prison. When the jury announced its verdict of guilty of first

degree m urder, the foreman responded to the trial court that the jury had fixed the

sentence at life imprisonment. The trial judge then polled each juror, and each juror

answered affirma tively that he or she had found Appellant guilty of first degree

murder and had set the sentence at life imprisonment. After the jury was dismissed,

the trial judge ad dresse d Appe llant and s tated that b ased o n the jury’s ve rdict, the

trial court found him guilty of first degree murder an d sente nced h im to life

imprison ment.



              Under Tennessee Code Annotated section 39-13-202(c), the minimum

sentence available for a App ellant who is convicte d of first deg ree mu rder is life

imprison ment. Tennessee Code Annotated section 39-13-208(c) does provide that

where no notice is g iven of the S tate’s inten t to seek th e death penalty o r life

imprisonment without the possibility of parole, then upon conviction for first degree

murder, the App ellant sha ll be sente nced to imprisonment for life by the trial co urt.

The State in this ca se did not seek the death penalty or life imprisonment without the

possibility of parole. Therefore, Appella nt asserts that since the statute clearly states

that the court must render such a sentencing d ecision, then it was e rror for the court

to allow the jury to do so . However, the fact that the jury indicated that it set the

sentence at life impriso nmen t is imma terial.      Appe llant receiv ed the minimum

sentence under the law and can therefore show no prejudice from the fact that the

jury stated that it imposed the minimum sentence prior to the trial court also

imposing the minimum sentence.

                                            20
              Appellant further argues that the trial court erred in instructing the jury

that a Appellant who receives a sentence of life impris onm ent sh all not b e eligib le

for parole consideration until the Appellant has served at least 25 full calenda r years

of that sentence. However, upon review of the rec ord, it ap pears that no t only did

defense counsel consent to the instruction, but actively insisted that the instruction

shou ld in fact b e given to the ju ry. Spe cifically, defense counsel quoted from

Tennessee Code Annota ted section 39-13-204(e)(2) stating, “[t]he jury shall be

instructed that a defendant who rec eives a se ntence of impriso nmen t for life shall not

be eligible for paro le con sidera tion un til the defendant has served at least twenty-five

(25) full calendar years of such sente nce.” H e wen t on to s ay, “If tha t is not, if th at’s

not, if the Jury’s not instructed on that, we think that’s a rea l problem.” Again, it was

defense counsel who brough t this statute to the cour t’s attention, a nd whe n the Sta te

and the co urt sub sequ ently agreed that it should be given, the trial ju dge a ccord ingly

added this to the jury charge. A party may not, in effect, invite or condone action and

then claim the action to be an error that requires relief to that party. See Tenn. R.

App. P . 36(a). Th is issue is w ithout me rit.



              Having found that Appellant cannot prevail on any of his issues, we

affirm the ju dgme nt of the trial co urt.




                                    ____________________________________
                                    THOMAS T. W OODALL, Judge




CONCUR:




                                              21
_________________________________
DAVID G. HAYES, Judge


_________________________________
 DAVID H. WELLES, Judge




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