State vs. Holt

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED APRIL SESSION, 1997 December 23, 1997 STATE OF TENNESSEE, Appellee, VS. WILLIAM LYNN HOLT, Appe llant. ) ) ) ) ) ) ) ) ) ) Cecil Crowson, Jr. Appellate C ourt Clerk C.C.A. NO. 03C01-9603-CC-00122 GREENE COUNTY HON. JAMES E. BECKNER JUDGE (Direct Appe al - Theft) FOR THE APPELLANT: FOR THE APPELLEE: LAWRENCE A. WELCH, JR. 1104 Tusculum Blvd., Ste. 101 Greeneville, TN 37743 JOHN KNOX WALKUP Attorney General and Reporter CLINTON J. MORGAN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243 C. BERKELEY BELL District Attorney General ERIC D. CHRISTIANSEN Assistant District Attorney 113-J West Church Street Greeneville, TN 37743 OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE OPINION A Green e Cou nty Crim inal Cou rt jury found Appella nt, William Lynn Holt, guilty of theft of property valued over $10,000 and under $60,000. Appellant was sentenced to six years in the Tennessee Department of Correction and fined $10,000. On appeal, Appellant presents the following issues for review: 1) whether the evidence presented at trial was insufficient as a mater of law to support the jury verdict of theft of property valued between $10,000 and $60,000; 2) whether the trial court erred in denying the defense request for a jury instruction on joyriding as a lesser included offense; 3) whether the trial court erred in not giving the jury instruction set out by the Tennessee Suprem e Cou rt in State v. Dyle, 899 S.W.2d 607(Tenn. 1995); regarding eyewitness identification. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt. FACTUAL BACKGROUND The evidence presented at trial established that in early June, 1995, Appellant and three other people worked at the home of J.C. Jones, painting the Jones home. Mr. Jones testified that at that time he owned a 1964 yellow Corvette convertible automobile, which he kept hidden behind his house. On June 8, the Jones fam ily left for a -2- vacation without having given anyone permission to drive the car. They were inform ed late r that we ek tha t the au tomo bile had been stolen and burned. Mr. Jones testified that the car had a fair market value of at least $25,000. Mr. Hobert Carter, familiar with Mr. Jones’ automobile, saw the car being driven at about 8:45 p.m. on June 8, 1995. Mr. Carter identified Appe llant as having been the drive r of the c ar. Mr. R onnie Brown testified that A ppellant came to his body and repair shop and asked him to paint a ‘64 Corvette convertib le. Mr. Brow n refuse d to paint the car, telling Appella nt, “I ain’t getting in trouble.” Ms. Kay Lane testified that she to ok App ellant to a field beh ind a tresp assing g ate in order to retrieve a car for which he said he had traded a motorcycle and a Camero. Ms. Lane testified that he got the keys to the car from the trunk and drove the car to a trailer park. She later received a phone call telling her that Appellant had wrecked. She drove to where Appellant was and overheard h im talking abou t having to get rid of the ca r. Several other witnesses testified they saw Appellant driving the Corvette . SUFFICIENCY OF THE EVIDENCE Appellant argues that the evidence presented at trial was insuffic ient to support the verdict of guilty in that there was no competent evidence to establish the value of the stolen automobile. He bases this argument upon the fact that J.C. Jones is not the owner of -3- record, though he provided the only testimony regarding the value of the car. In State v. B ridgeforth , 836 S.W.2d 591 (Tenn. Crim. App. 1992), this court held that Tennessee Rule of Evidence 701 pro hibits value testimony from any lay witness other than the property owner. Howeve r, Bridgefo rth involved testimony from a bailee regarding the value of property in the bailment. The situation in the case sub judice is very different from that pre sented by Bridgefo rth. Here, the witness who testified regarding th e value of the car was married to the titled owner of the car. The testimony was that the car was their joint marital property. While the figure put into evidence by the bailee in Bridgefo rth did not in anyway demonstrate how the amount was arrived at or even that the bailee had any reliable knowledge o f the value of the goods, the value attributed to the car by Mr. Jones was clearly arrived at through intimate k nowled ge of the v ehicle. T his issue is without m erit. FAILURE TO CHARGE JOYRIDING Appellant argues that the trial court erred in failing to charge the jury on the lesser offense of joyriding, Tennessee Code Annotated Section 39-14-106. A person commits “joyriding” when he or she: “takes another’s automobile, airplane, motorcycle, bicycle, boat or other vehicle without the consent of the owner a nd the perso n does no t have the intent to deprive the owner thereo f.” A trial court ha s a duty to instruct the jury on all lesser included or lesser grade of offen ses w hethe r or not it is requested to do so. -4- State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996). However, the trial court is not re quired to instru ct the ju ry regarding a lesser included or lesser grade of offense where no evidence has been presented to support a lesser o ffense. Id.; W hitwell v. State, 520 S.W.2d 338, 343 (Tenn. 1975); and State v. Rhoden, 739 S.W.2d 6,11 (Tenn. Crim. App. 1987). The facts in this ca se do not su pport a jury charge for joyriding. Appellant consulted with a body shop about painting the vehicle. After wrecking, Appellant burned the c ar. There is no evidence in this record that Appellant intended anything but to deprive the owner of the car of his property. Therefore, the trial judge's failure to charge the jury on the lesser offense of joyridin g was not rev ersible error. This issue is without merit. HEARSAY OBJECTION Appellant mainta ins that the trial court erred in sustaining the State ’s objections to certain questions asked during the crossexamination of Detective Ellison. On direct examination the prosecutor elicited from Detective Ellison that Mr. Hobert Carter had told Ellison that he had seen Appe llant drivin g the J ones ’ vehicle . This testimony was admitted pursua nt to Tenn. R. Evid. 803(1.1) which allows, as an exception to the h earsa y rule, a p rior state men t of iden tification by a witness if the declara nt testified and is subject to cross-examination. On cross-examination counsel for Appellant asked questions of Ellison concerning whether Carter had told Ellison that appellant had waived at Carter w hen C arter saw him in the Jones’ Corve tte. Th e State ’s objections to these questions were sustained on hearsay grounds. -5- Hearsay is defined at Tenn. R. Evid. 801(C) as: . . . a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Clearly, co unsel w anted to show by this line of questioning that Appellant was not afraid of being seen driving the Corvette, and h ad in fact waved to Carter. However, it is equally clear that eliciting this information through Ellison amounted to an attempt to introduce hearsay for which no exception exists and it was th erefor e prop erly excluded. In any event during Mr. Carter’s testimony counsel asked Carter if Appellant had waved to him. Carter responded that Appellant had indeed waved. The jury had the benefit of th is informa tion and its exclusion during Ellison ’s testimon y could no t have ha rmed A ppellant. JURY INSTRUCTION REGARDING IDENTITY Appe llant’s last complaint concerns the jury instruction regarding identity. At trial the jury instructed the jury with the traditional pattern instruction regarding identity. T.P.I.Crim. (3d ed.) 42.05 (1993). Appellant maintains that this instruction was insufficient in light of the Tennessee Supreme Court’s holding in State v. Dyle, 899 S.W.2d 607 (Tenn. 1995). In Dyle our sta te sup reme court h eld tha t in cases wh ere the identity of the defendant is a material issue, a m ore comp rehensive jury instruction than that of the traditional pattern charge should be given to the jury if the defendant requests the more comprehensive instruction. -6- The jury instruc tions p romu lgated by the C ourt in Dyle reads as follows: One of the is sues in this ca se is the identification of the defendant as the person who committed the crime. The state has the burden of proving identity beyond a reaso nable doubt. Identification testim ony is an expression of belief or impression by the witness, and its value may depend upon your consideration of several factors. Some of the factors which you may consider are: (1) The witness’ capacity and op portunity 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 w hich it was made, including wheth er it is the product of the witness’ own recollection; (3) The occasions, if any, on which the witness failed to made an identification of the defend ant, 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 surroundin g such identifications. Again, the state has the burden of proving every elem ent of th e crim e cha rged, a nd this burden spec ifically 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 identific ation te stimo ny in light of all the proof y ou ha ve a rea sona ble doubt that the defen dant is the person who committed the crime, you must find the defendan t not guilty. Id. At 612. -7- If a defend ant fails to request the instruction set forth above, the case under consideration must be analyzed to determine whether the failure to give the in struction a moun ts to harm less error. Id. In the instant case Appellant did not request that the Dyle instruction be given. W e there fore re view the case unde r a harm less er ror stan dard. 1 In this case Kay Lane testified she was with Appellant when he first took the Corvette. Appellant was positively identified as driving the car on June 8 , 1995. The next day Appellant asked Ronnie Brown to paint the Corvette. In addition four other witnesses who knew Appellant also saw him driving the stolen Corvette. We are convinced that any error in the failure to give the Dyle instruction did not effect the verdict in this case . Tenn. R . Crim. P . 52(a). Th is issue is w ithout me rit. Having reviewed the rec ord and the arguments of the parties we conclude there is no reversible error in this record. Accordingly, the judgment of the trial court is affirmed. _____________________________ JERRY L. SMITH, JUDGE 1 It should be noted that only if identity is a material issue is a defendant entitled to the Dyle instruction upon request or a harmless error analysis in the absence of a special request. If identity is not a material issue failure to give the Dyle instruction is not error at all. Identity is a material issue when the defend ant puts it in iss ue or wh en eyewitn ess tes timony is u ncorro borated by circum stantial evide nce. Dyle at 612 F.N.4. In the case sub judice App ellant only hin ted th at the eyew itnes ses were mis take n in identifying him as the pe rpetrator o f the car th eft. His prim ary defen se was that he did n ot intend to permanently deprive the owner of the vehicle. Thus, it is questionable whether identity was a material issue in this case. We nevertheless will address this issue under the harmless error standard. -8- CONCUR: ___________________________________ JOE G. RILEY, JUDGE ___________________________________ CHRIS CRAFT, SPECIAL JUDGE -9-

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