           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                               Assigned on Briefs September 28, 2005

                 STATE OF TENNESSEE v. COREY C. ABERNATHY

                    Direct Appeal from the Criminal Court for Hamilton County
                              No. 238263    Rebecca J. Stern, Judge



                      No. E2005-00266-CCA-R3-CD - Filed December 14, 2005


The defendant, Corey C. Abernathy, was convicted after a bench trial of theft of property under
$500, a Class A misdemeanor, and sentenced to eleven months, twenty-nine days, suspended to
probation. On appeal, the defendant argues the evidence was insufficient to support his conviction.
We conclude that the defendant was not questioned, as required, before being allowed to represent
himself. Accordingly, we reverse the conviction and remand for a new trial.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
                                Remanded for a New Trial

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JERRY L.
SMITH , JJ., joined.

John G. McDougal, Chattanooga, Tennessee, for the appellant, Corey C. Abernathy.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William H. Cox, III, District Attorney General; and Mary Sullivan Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                    OPINION

                                                     FACTS

                                              Procedural History

        In October 2001, the Hamilton County Grand Jury indicted the defendant and his
codefendant, Brian Moore, for burglary and theft of property under $500.1 On October 31, 2002, the
defendant, after firing three court-appointed attorneys, represented himself pro se at the bench trial.
The trial court found him guilty of theft of property under $500 but acquitted him of burglary.

       1
           Codefendant Moore, the defendant’s stepbrother, was not tried with the defendant.
Subsequently, the defendant, again pro se, sent two handwritten motions to the trial court requesting
a rehearing, both of which were denied. The defendant apparently filed a petition for post-conviction
relief2 because the trial court held a post-conviction hearing on October 4, 2004.3 The trial court
dismissed the defendant’s post-conviction petition but granted a delayed appeal.4

                                                           Trial

        The victim, Michael Lendley, testified that on the night of the theft, a police officer awakened
him to say that his car had been broken into and the officer needed help in identifying some
recovered property. Lendley identified a car stereo he bought several weeks earlier by matching the
serial number of the recovered stereo to the serial number on the box he saved.

         Officer Craig Nabors of the Chattanooga City Police Department testified that he was a
probationary police officer working under a field training officer, Officer Wiertel, the night the
victim’s car was broken into. Officer Nabors said he and Officer Wiertel received a message to be
on the lookout for two suspicious persons, one walking and one pushing a bicycle, who had been
looking into cars. Approximately eight minutes after receiving the message, the officers located the
defendant and Moore and stopped them for questioning. The defendant was carrying a backpack and
Moore was pushing a bicycle that had no pedals. Nabors said the defendant gave the officers
permission to search the backpack, where they found “a portable tape player, a portable CD player,
two in-dash stereo car systems and also receivers and . . . a set of headphones.” Officer Nabors
testified that the victim was able to identify one of the car stereos as his by matching the stereo’s
serial number to the serial number on the box and receipt he had. On cross-examination, Nabors
testified that he questioned the defendant about the theft and that the defendant claimed the backpack
and its contents. Nabors acknowledged that he did not question Moore.

        Officer Steven Wiertel of the Chattanooga Police Department testified that he and Officer
Nabors stopped the defendant and Moore after receiving a call to be on the lookout for two men on
bicycles checking out cars. Wiertel said the defendant gave Officer Nabors verbal consent to look
inside his backpack, where the officers found the victim’s car stereo and the other items. On cross-
examination, Wiertel testified that when Nabors initially asked the defendant about the backpack,
the defendant said it was his. Wiertel said when they later went to the location where the victim’s




         2
             There is nothing in the technical record showing when or how the defendant requested post-conviction relief.

         3
             The defendant had the assistance of counsel at this hearing and is represented by counsel on appeal.

         4
          In dismissing the post-conviction petition, the trial court noted that what the defendant was “complaining about
is something [the trial court] did, not something an attorney did, so it’s really not grounds for post-conviction. . . . It’s
really something that’s more appropriate for appeal.” The trial court further explained that it was granting a delayed
appeal because the court felt it “probably did not advise [the defendant] of [his] right to appeal because” he represented
himself at trial.

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car was broken into, the defendant claimed the stereo found in the backpack belonged to Moore.5
Asked if he thought it would take two people to steal the victim’s stereo, Wiertel said, “No.”

         Officer Michael Hart of the Chattanooga Police Department testified that he was dispatched
to the scene where he found the defendant’s car with a broken window. Hart said Officers Wiertel
and Nabors brought the defendant and Moore back to where the victim’s car was located, and the
victim then identified his stolen car stereo. The officer said that the defendant and Moore then
started to argue about to whom the stereo belonged. On cross-examination, Hart acknowledged that
Moore claimed the stereo belonged to him. Asked why the defendant was arrested when Moore
claimed ownership of the stereo, Hart said it was because the defendant had possession of the stolen
stereo.

       The defendant testified in narrative form. He explained that he was with his stepbrother,
Moore, when “[f]or some strange reason [Moore] was riding his bike and he veered off the road, the
sidewalk and busted a car window” and then entered the car. The defendant said he screamed and
continued walking but Moore eventually caught up to him where the following happened:

        [Moore] gets to me and I look at him crazy, you know what I’m saying. I knew what
        he did but I didn’t know why and it really didn’t dawn on me that he did it to steal
        a radio, you know what I’m saying. I grabbed the radio from him and I put it in my
        backpack, you know what I’m saying, I did do that.

 The defendant said that when questioned by the officers as to the car stereos found in his backpack,
Moore claimed them both. On cross-examination, the defendant denied knowing that Moore had
stolen the car stereo from the victim’s car even though he knew Moore had broken out the car
window.

                                                     ANALYSIS

                                              Sufficiency of Evidence

        The defendant argues that the evidence is insufficient to support his conviction for theft under
$500. Specifically, he argues that the trial court erred when it found him guilty of theft under $500
while finding him innocent of burglary. The State argues the evidence was sufficient to find the
defendant guilty of theft under $500.

         We review this issue under the familiar rule that where sufficiency of the convicting evidence
is challenged, the relevant question of the reviewing court is “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.


        5
            Specifically, the defendant had told the officers that the stereo belonged to Elijah M cCleary, Moore’s alias.



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Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838
S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App.
1992). All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). Our supreme court stated the rationale for this rule:

        This well-settled rule rests on a sound foundation. The trial judge and the jury see
        the witnesses face to face, hear their testimony and observe their demeanor on the
        stand. Thus the trial judge and jury are the primary instrumentality of justice to
        determine the weight and credibility to be given to the testimony of witnesses. In the
        trial forum alone is there human atmosphere and the totality of the evidence cannot
        be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). In a bench trial, the verdict of the trial judge is entitled to the same weight
on appeal as that of a jury verdict. See State v. Horton, 880 S.W.2d 732, 734 (Tenn. Crim. App.
1994). The burden is on a convicted defendant to show that the evidence is insufficient. See State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        “Theft of property” occurs when, “with intent to deprive the owner of property, [a] person
knowingly obtains or exercises control over the property without the owner's effective consent.”
Tenn. Code Ann. § 39-14-103 (2003). “Deprive” means, among other things, to “[w]ithhold
property from the owner permanently or for such a period of time as to substantially diminish the
value or enjoyment of the property to the owner.” Id. § 39-11-106(a)(8)(A). When the value of the
goods or services taken is $500 or less, theft of property constitutes a Class A misdemeanor offense.
Id. § 39-14-105(1).

       Viewed in the light most favorable to the State, the proof at trial established that the
defendant took the stolen car stereo belonging to the victim from his stepbrother and placed it in his
backpack. In his brief, the defendant argues that there was no proof that he intended to deprive the
victim of his stereo and that he was only “holding the property for his brother,” Moore. The
evidence clearly showed that he took the radio knowing that Moore had just stolen it from the
victim’s car. We disagree with the defendant’s thesis that his “holding the property for his brother”
does not constitute depriving the victim of his property. As such, we find the evidence to be more
than sufficient to find the defendant guilty of theft of property.

         In addition, the defendant argues the trial court erred in finding him guilty of theft of property
after finding him not guilty of burglary. Apparently, the defendant believes that once he was found
not guilty of burglary, he could not then be found guilty of theft of property. He cites no law to
support this contention. The trial court found the evidence did not show beyond a reasonable doubt
that the defendant actually burglarized the car but did show beyond a reasonable doubt that the


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defendant had possession of the stolen car stereo with the intent to deprive the owner of his property.
We find the evidence supports the trial court’s conclusions. As such, we find this argument to be
without merit.

                                         Waiver of Counsel

       Though not raised by either party on appeal, we are compelled to note that the trial court did
not examine the defendant on the record to determine his ability to proceed pro se.

        Both the United States and the Tennessee Constitutions grant a defendant the right to
assistance of counsel in the preparation and presentation of a defense to a criminal charge. See U.S.
Const. amend. VI; Tenn. Const. art. I, § 9. In addition, the Sixth Amendment implicitly provides a
defendant the right of self-representation. Faretta v. California, 422 U.S. 806, 819 (1975); State v.
Northington, 667 S.W.2d 57, 60 (Tenn. 1984). In Tennessee, courts have recognized only two basic
constitutionally-guaranteed methods of representation of a criminal defendant: pro se or through an
attorney. These rights are alternative. A defendant has no state or federal constitutional right both
to represent himself and to be represented by counsel. State v. Burkhart, 541 S.W.2d 365, 371
(Tenn. 1976).

        In order to activate the right of self-representation, the defendant must: (1) timely assert the
right to proceed pro se; (2) clearly and unequivocally exercise the right; and (3) knowingly and
intelligently waive his or her right to assistance of counsel. State v. Herrod, 754 S.W.2d 627, 629-30
(Tenn. Crim. App. 1988). Generally, a defendant must assert the right of self-representation prior
to jury selection to be considered timely. See id. at 629. In determining whether a defendant
intelligently and knowingly waived his right to counsel, the trial court must question the defendant
extensively regarding his ability to represent himself. Northington, 667 S.W.2d at 61; Herrod, 754
S.W.2d at 630. A defendant need not have “technical legal knowledge” in order to exercise his right
of self-representation. Faretta, 422 U.S. at 836.

       Rule 44(a) of the Tennessee Rules of Criminal Procedure states the following:

       Every indigent defendant shall be entitled to have assigned counsel in all matters
       necessary to the defense and at every stage of the proceedings, unless the defendant
       executes a written waiver. Before accepting such waiver the court shall first advise
       the accused in open court of the right to the aid of counsel in every stage of the
       proceedings. The court shall, at the same time, determine whether there has been a
       competent and intelligent waiver of such right by inquiring into the background,
       experience and conduct of the accused and such other matters as the court may deem
       appropriate. Any waiver accepted shall be spread upon the minutes of the court and
       made a part of the record of the cause.

         In Smith v. State, 987 S.W.2d 871, 875 (Tenn. Crim. App. 1998), this court recommended
that in cases where a defendant aspires to proceed pro se, the trial court should conduct its inquiry


                                                  -5-
in accordance with the guidelines contained in 1 Bench Book for United States District Judges 1.02-
2 to -5 (3d ed. 1986).6

       According to the facts set forth in Smith, upon receiving notice that the defendant wanted to
represent himself, the trial court affirmed that he had that right and provided him with copies of the


        6
         The following excerpt is from United States v. McDowell, 814 F.2d 245, 251- 52 (6th Cir. 1987) (quoting
Guideline[s] For District Judges from 1 Bench Book for United States District Judges 1.02-2 to -5 (3d ed. 1986)):

        W hen a defendant states that he wishes to represent himself, you should . . . ask questions similar to
        the following:
        (a) Have you ever studied law?
        (b) Have you ever represented yourself or any other defendant in a criminal action?
        (c) You realize, do you not, that you are charged with these crimes: (Here state the crimes with which
        the defendant is charged.)
        (d) You realize, do you not, that if you are found guilty of the crime charged in Count I the court must
        impose an assessment of at least $50 ($25 if a misdemeanor) and could sentence you to as much as
        __ years in prison and fine you as much as $__?
        (Then ask him a similar question with respect to each other crime with which he may be charged in
        the indictment or information.)
        (e) You realize, do you not, that if you are found guilty of more than one of those crimes this court can
        order that the sentences be served consecutively, that is, one after another?
        (f) You realize, do you not, that if you represent yourself, you are on your own? I cannot tell you how
        you should try your case or even advise you as to how to try your case.
        (g) Are you familiar with the [Tennessee] Rules of Evidence?
        (h) You realize, do you not, that the [Tennessee] Rules of Evidence govern what evidence may or may
        not be introduced at trial and, in representing yourself, you must abide by those rules?
        (i) Are you familiar with the [Tennessee] Rules of Criminal Procedure?
        (j) You realize, do you not, that those rules govern the way in which a criminal action is tried in [this]
        court?
        (k) You realize, do you not, that if you decide to take the witness stand, you must present your
        testimony by asking questions of yourself? You cannot just take the stand and tell your story. You
        must proceed question by question through your testimony.
        (l ) (Then say to the defendant something to this effect):
         I must advise you that in my opinion you would be far better defended by a trained lawyer than you
        can be by yourself. I think it is unwise of you to try to represent yourself. You are not familiar with
        the law. You are not familiar with court procedure. You are not familiar with the rules of evidence.
        I would strongly urge you not to try to represent yourself.
        (m) Now, in light of the penalty that you might suffer if you are found guilty and in light of all of the
        difficulties of representing yourself, is it still your desire to represent yourself and to give up your right
        to be represented by a lawyer?
        (n) Is your decision entirely voluntary on your part?
        (o) If the answers to the two preceding questions are in the affirmative, [and in your opinion the waiver
        of counsel is knowing and voluntary,] you should then say something to the following effect:
        “I find that the defendant has knowingly and voluntarily waived his right to counsel. I will therefore
        permit him to represent himself.”
        (p) You should consider the appointment of standby counsel to assist the defendant and to replace him
        if the court should determine during trial that the defendant can no longer be permitted to represent
        himself.



                                                             -6-
indictments against him. 987 S.W.2d at 872. Later, when the defendant informed the trial court that
he had negotiated a plea agreement and wanted to waive his right to a jury trial, the trial court asked
him whether he was aware of his right to counsel and informed him that the court would appoint an
attorney to assist with his defense if he could not afford one. The defendant waived those rights and
restated his desire to proceed pro se. The trial court accepted his waiver of the rights to assistance
of counsel and a jury trial, and then inquired as to his age, education, and physical and mental health.
Id. at 873. The defendant answered the questions and stated that he was not under the influence of
any intoxicants at the time of the crime or that particular moment. The trial court then advised the
defendant of the maximum sentence length possible, found his guilty pleas voluntary, and imposed
the agreed-upon sentences.

        On appeal, a panel of this court set aside Smith’s conviction and remanded the cause for a
new trial based on the conclusion that, under the existing guidelines, the trial court’s pre-trial inquiry
into the matter “should have been more extensive.” Id. at 877. Specifically, the trial court’s inquiry
was found inadequate based upon the following: there were no warnings of the pitfalls of self-
representation; the waiver was accepted without asking about the defendant’s background, education,
or experience with the court system; no questions were asked regarding his understanding of lesser
offenses or the elements of the offenses charged; the defendant was not asked whether he understood
available defenses or the range of possible punishments; and, most importantly, the trial court failed
to warn the defendant that self-representation was “unwise.” Id. at 876.

         In the analogous case of Northington, the Tennessee Supreme Court held that the trial court
had “‘wholly failed’ to properly investigate [whether] the defendant understood the consequences
of self-representation.” 667 S.W.2d at 61. In Northington, the trial court discussed the seriousness
of the charges; advised the defendant that, if he undertook to represent himself, he would be held to
the same standard as a lawyer; ensured that the defendant had discussed the case with his appointed
attorney; determined the age and education of the accused; and warned the defendant that proceeding
pro se was unwise. Id. at 59. Notwithstanding these measures, the conviction was set aside because
the trial court “failed to diligently examine the defendant’s background and experience, failed to
notify defendant as to the possible extent of any penitentiary sentence, and failed to elaborate fully
to defendant why he thought it ‘unwise’ to waive counsel.” Id. at 61.

       As made apparent by these cases, the knowing and intelligent waiver of counsel by a
defendant wishing to proceed pro se is a substantial right of the accused guaranteed by both the
United States and Tennessee Constitutions. Thus, this court may address the waiver of the right to
counsel and the defendant’s decision to proceed pro se via “plain error” review where necessary to
do substantial justice, even though the issue was not raised by either party in a motion for new trial
or on appeal. The process of “plain error” review is embodied in Tennessee Rule of Criminal
Procedure 52(b), which provides:

        An error which has affected the substantial rights of an accused may be noticed at any
        time, even though not raised in the motion for a new trial or assigned as error on



                                                   -7-
        appeal, in the discretion of the appellate court where necessary to do substantial
        justice.

In order to review an issue under the plain error doctrine, five factors must be present: (1) the record
must clearly establish what occurred in the trial court; (2) a clear and unequivocal rule of law must
have been breached; (3) a substantial right of the defendant must have been adversely affected; (4)
the accused did not waive the issue for tactical reasons; and (5) consideration of the error is
necessary to do substantial justice. See State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000); State
v. Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim. App. 1994); see also Tenn. R. Crim. P. 52(b). For
a “substantial right” of the accused to have been affected, the error must have prejudiced the
appellant. In other words, it must have affected the outcome of the trial court proceedings. United
States v. Olano, 507 U.S. 725, 732-37 (1993) (analyzing the substantially similar Federal Rule of
Criminal Procedure 52(b)); Adkisson, 899 S.W.2d at 642. This is the same type of inquiry as the
harmless error analysis under Tennessee Rule of Appellate Procedure 36(b), but the appellant bears
the burden of persuasion with respect to plain error claims. Olano, 507 U.S. at 732-37.

         In the case herein, the record is fairly clear as to what happened in the trial court. After firing
three court-appointed attorneys, the defendant represented himself at a bench trial. It is equally clear
that a substantial right of the defendant was affected as the record is devoid of any colloquy between
the trial court and the defendant as to the defendant’s waiver of his right to counsel. The trial court
either did not question the defendant or, if so, placed the colloquy on the minutes of the court. We
determine that the defendant was prejudiced by the fact that this was not done. Thus, the trial court’s
failure to follow proper procedure amounted to plain error. Accordingly, the judgment of the trial
court must be reversed and remanded for a new trial.

                                            CONCLUSION

        We reverse the judgment of the trial court and remand this matter for a new trial.

                                                          ___________________________________
                                                          ALAN E. GLENN, JUDGE




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