State of Tennessee v. Abbie Leann Welch ( 2020 )

02/19/2020
IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 4, 2019 Session
STATE OF TENNESSEE v. ABBIE LEANN WELCH
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Knox County
No. 107201 G. Scott Green, Presiding Judge
___________________________________
No. E2018-00240-SC-R11-CD
___________________________________
This appeal concerns the propriety of the defendant’s burglary conviction. A Knox
County grand jury indicted the defendant, Abbie Leann Welch, for misdemeanor theft in
violation of Tennessee Code Annotated section 39-14-103, and burglary, a Class D
felony, in violation of Tennessee Code Annotated section 39-14-402, for her involvement
in a scheme to enter a Walmart retail store, steal merchandise, and have another
individual return the merchandise for a gift card. The defendant previously had been
banned from Walmart retail stores for prior acts of shoplifting. In this case, because the
defendant entered Walmart without the effective consent of the owner—said consent
having been revoked by letter—and committed a theft therein, the State sought an
indictment for burglary rather than criminal trespass. We hold that the plain language of
the burglary statute does not preclude its application to the scenario presented in this case
and that, because the statute is clear and unambiguous on its face, we need not review the
legislative history to ascertain its meaning. Application of the burglary statute in these
circumstances does not violate due process or prosecutorial discretion. We affirm the
judgment of the Court of Criminal Appeals.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Affirmed
ROGER A. PAGE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined. HOLLY KIRBY, J. filed a
concurring opinion.
Patrick T. Phillips, Knoxville, Tennessee, for the appellant, Abbie Leann Welch.
Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; Sarah K. Campbell, Assistant Attorney General; Jeffrey D. Zentner,
Assistant Attorney General; Charme Allen, District Attorney General; and Mitchell
Eisenberg, Assistant District Attorney General, for the appellee, State of Tennessee.
Jonathan Harwell, Knoxville, Tennessee, for amici curiae Knox County Public
Defender’s Community Law Office and Tennessee Association of Criminal Defense
Lawyers.
Stanley E. Graham, Nashville, Tennessee, and Hyland Hunt, pro hac vice, and Ruthanne
Deutsch, Washington, DC, for amici curiae Retail Litigation Center, Inc., National
Association for Shoplifting Prevention, and Tennessee Retail Association.
OPINION
I. FACTS AND PROCEDURAL HISTORY1
On October 7, 2015, the defendant, together with friends Krista Brooks and
Tonya Cooper, drove to the East Towne Walmart in Knoxville, Tennessee. Seconds
before entering the store, the defendant informed Ms. Brooks that she intended to steal
items from the store so that Ms. Cooper could then return the items for a gift card.
Against the advice of Ms. Brooks, the defendant entered Walmart, exited with purloined
merchandise concealed in her purse, and handed the items to Ms. Cooper. Ms. Cooper
placed the items in a bag and went inside to return the items while Ms. Brooks
purportedly entered Walmart to use the restroom. Ms. Brooks rejoined Ms. Cooper, but
before they could exit the store, two men intercepted them and instructed the women to
follow them to the loss prevention office where they were questioned.
Ms. Brooks and Ms. Cooper acknowledged that they knew about the defendant’s
scheme. At that time, security cameras in the loss prevention office showed the
defendant driving her van through the parking lot and then into the parking lot of a
nearby fast food restaurant. The security system captured video of the defendant sitting
in the van while parked in the restaurant’s parking lot.
1
Both parties agree that the facts of this case are undisputed. However, a brief summary of the
evidence presented at trial frames the issue in proper context.
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Matt Schoenrock, an asset protection officer with Walmart, explained that he was
walking along the sales floor with another associate and observed the defendant “quickly
exiting the store with a large purse that looked to be full of merchandise.” Based upon
his experience and the defendant’s demeanor, Mr. Schoenrock reviewed the video of the
defendant while she was inside the store. He recognized the defendant and knew her
name because he had “prior incidents” with her. As he reversed the video, he observed
the defendant select various articles of clothing and conceal them in her purse.
The video showed that the defendant then exited the store, where she entered a
vehicle in which two female occupants were seated. After sitting for several minutes,
two females left the vehicle, entered the store carrying bags of merchandise, and
approached the service desk to obtain a refund for the merchandise. When the transaction
had been completed, Mr. Shoenrock and an associate intercepted the women and escorted
them into the asset protection office. He placed a call to the Knoxville Police
Department, and officers apprehended the defendant in the restaurant’s parking lot. After
she was brought to the asset protection office, the defendant admitted her guilt and
apologized for her actions. Police officers arrested the defendant and issued citations to
Ms. Brooks and Ms. Cooper. Mr. Schoenrock identified a document—a “trespass
form”—that he issued to the defendant on January 6, 2015. This form precluded the
defendant from entering the store because of prior shoplifting episodes. The defendant
previously had received other trespass forms from East Towne Walmart and other stores
in the area dating back to 2010.
The State reasoned that entering Walmart after being “trespassed” was equivalent
to entering the store without the effective consent of the owner and, therefore, sought an
indictment against the defendant for burglary rather than criminal trespass. In January
2016, a Knox County grand jury indicted the defendant for one count of theft of property
valued at $500 or less, a Class A misdemeanor,2 Tenn. Code. Ann. §§ 39-14-103, -
105(a)(1) (2018), and one count of burglary, a Class D felony, id. § 39-14-402.
Specifically, the grand jury indicted the defendant pursuant to Tennessee Code Annotated
section 39-14-402(a)(3), which provides that “[a] person commits burglary who, without
the effective consent of the property owner[,] [e]nters a building and commits or attempts
to commit a felony, theft or assault[.]” Prior to trial, the defendant filed a motion to
dismiss the burglary charge, asserting that the burglary statute was unconstitutionally
2
At the time of the offenses in this case, theft of property valued at $500 or less was graded as a
Class A misdemeanor. However, effective January 1, 2017, misdemeanor theft was expanded to include
property valued at $1000 or less. Tenn. Code. Ann. § 39-14-105 (Supp. 2017). Neither the defendant’s
conviction nor sentence is implicated by the expansion of the theft grading statute.
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vague as applied. The trial court denied the motion, and the defendant was convicted as
charged at the conclusion of her May 24, 2017 bench trial. The trial court denied all of
the defendant’s post-trial motions and imposed concurrent sentences of six years for
burglary and eleven months, twenty-nine days for theft to be served on supervised
probation.
The Court of Criminal Appeals, in a divided opinion, affirmed the defendant’s
convictions and sentences. State v. Welch, No. No. E2018-00240-CCA-R3-CD, 2019
WL 323826 (Tenn. Crim. App. Jan. 23, 2019). The majority, authored by Judge Timothy
L. Easter,3 reasoned, “[T]he statute is clear that when a person enters any building that is
not a habitation, including one otherwise open to the public, without the effective consent
of the owner and commits or attempts to commit a felony, theft, or assault therein, they
may be prosecuted for burglary pursuant to Tennessee Code Annotated section 39-14-
402(a)(3).” Id. at *4 (emphasis removed). Moreover, although “retail establishments
may generally consent to entry by members of the public at large during normal business
hours, such consent is clearly revoked when an individual has been notified in writing
that they are no longer allowed on the property.” Id. Finally, the court noted that simply
because prosecutors have not routinely charged repeat shoplifters in this manner does not
prevent their ability to do so under the plain language of the statute. Id.
Judge Camille R. McMullen dissented, reasoning that “the burglary statute’s
application to the Defendant, that of a shoplifter previously banned from a retail store,
bears no relationship to the common law’s and the Model Penal Code’s definition of
burglary.” Id. at *6 (McMullen, J., dissenting). Citing an explanatory note to Model
Penal Code sections 221.1 and 221.2, the dissent explained “that the continued survival
of the offense of burglary ‘reflect[ed] a considered judgment that especially severe
sanctions are appropriate for criminal invasion of premises under circumstances likely to
terrorize occupants’” and that “[a]pplication of the burglary statute to shoplifting cases
like this simply runs counter to the time-honored belief that burglary is meant to punish a
harmful entry.” Id. (alteration in original) (citations omitted). Accordingly, the dissent
would have found the burglary statute “vague and unenforceable.” Id.
3
In a recent opinion authored by Judge Easter, the majority noted the frequency with which cases
similar to the instant case are being prosecuted and appealed, as well as the disagreement among members
of the Court of Criminal Appeals. State v. Lawson, No. E2018-01566-CCA-R3-CD, 2019 WL 4955180,
at *5 (Tenn. Crim. App. Oct. 8, 2019).
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We granted the defendant’s application for permission to appeal pursuant to Rule
11 of the Tennessee Rules of Appellate Procedure to consider whether her conviction for
burglary violates her right to due process.
II. ANALYSIS
The defendant’s argument asserts that the burglary statute is unconstitutionally
vague as applied in this case to the extent that it implicates due process rights.
Accordingly, this case involves an issue of statutory construction.
A. Standard of Review
Because statutory construction of a statute presents questions of law, we review
such questions de novo with no presumption of correctness. State v. Dycus, 456 S.W.3d
918, 924 (Tenn. 2015) (citing State v. Springer, 406 S.W.3d 526, 532-33 (Tenn. 2013);
State v. Marshall, 319 S.W.3d 558, 561 (Tenn. 2010); State v. Wilson, 132 S.W.3d 340,
341 (Tenn. 2004)); Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009).
When engaging in statutory interpretation, “well-defined precepts” apply. State v.
Frazier, 558 S.W.3d 145, 152 (Tenn. 2018) (quoting Tenn. Dep’t of Corr. v. Pressley,
528 S.W.3d 506, 512 (Tenn. 2017)); State v. Howard, 504 S.W.3d 260, 269 (Tenn.
2016); State v. McNack, 356 S.W.3d 906, 908 (Tenn. 2011). “The most basic principle of
statutory construction is to ascertain and give effect to the legislative intent without
unduly restricting or expanding a statute’s coverage beyond its intended scope.” Howard,
504 S.W.3d at 269 (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)); Carter,
279 S.W.3d at 564 (citing State v. Sherman, 266 S.W.3d 395, 401 (Tenn. 2008)). In
construing statutes, Tennessee law provides that courts are to avoid a construction that
leads to absurd results. Tennessean v. Metro. Gov’t of Nashville, 485 S.W.3d 857, 872
(Tenn. 2016) (citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010)).
“Furthermore, the ‘common law is not displaced by a legislative enactment, except to the
extent required by the statute itself.’” Wlodarz v. State, 361 S.W.3d 490, 496 (Tenn.
2012) (quoting Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 679 (Tenn.
2002)), abrogated on other grounds by, Frazier v. State, 495 S.W.3d 246 (Tenn. 2016).
“When statutory language is clear and unambiguous, we must apply its plain
meaning in its normal and accepted use, without a forced interpretation that would extend
the meaning of the language . . . .” Carter, 279 S.W.3d at 564 (citation omitted);
Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). A statute is
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ambiguous when “the parties derive different interpretations from the statutory
language.” Howard, 504 S.W.3d at 270 (quoting Owens, 908 S.W.2d at 926).
However, this proposition does not mean that an ambiguity exists merely
because the parties proffer different interpretations of a statute. A party
cannot create an ambiguity by presenting a nonsensical or clearly erroneous
interpretation of a statute. In other words, both interpretations must be
reasonable in order for an ambiguity to exist.
Frazier, 558 S.W.3d at 152 (quoting Powers v. State, 343 S.W.3d 36, 50 n.20 (Tenn.
2011)) (internal quotation marks omitted).
If a statute is ambiguous, the Court “‘may reference the broader statutory scheme,
the history of the legislation, or other sources’ to determine the statute’s meaning.” Id.(quoting Sherman, 266 S.W.3d at 401). The Court must “endeavor to resolve any
possible conflict between statutes to provide for a harmonious operation of the laws.” Id.at 153 (citing Lovlace v. Copley, 418 S.W.3d 1, 20 (Tenn. 2013)). “‘Where a conflict is
presented between two statutes, a more specific statutory provision takes precedence over
a more general provision.’” Id. (quoting Lovlace, 418 S.W.3d at 20); Arnwine v. Union
Cnty. Bd. of Educ., 120 S.W.3d 804, 809 (Tenn. 2003). Moreover, “‘[w]hen one statute
contains a given provision, the omission of the same provision from a similar statute is
significant to show that a different intention existed.’” Frazier, 588 S.W.3d at 153
(quoting State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997)).
B. Plain Language of the Statute
Turning first, as we must, to the plain language of the statute itself, the burglary
statute states:
(a) A person commits burglary who, without the effective consent of the
property owner:
(1) Enters a building other than a habitation (or any portion
thereof) not open to the public, with intent to commit a
felony, theft or assault;
(2) Remains concealed, with the intent to commit a felony, theft
or assault, in a building;
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(3) Enters a building and commits or attempts to commit a
felony, theft or assault; or
(4) Enters any freight or passenger car, automobile, truck, trailer,
boat, airplane or other motor vehicle with intent to commit a
felony, theft or assault or commits or attempts to commit a
felony, theft or assault.
Tenn. Code Ann. § 39-14-402(a) (2018) (emphases added).
Tennessee Code Annotated section 39-11-106(a)(11) defines “effective consent”
as “assent in fact, whether express or apparent.” “When the legislature does not provide
a specific definition for a statutory term, this court may look to other sources, including
Black’s Law Dictionary, for guidance.” State v. Ivey, No. E2017-02278-CCA-R3-CD,
2018 WL 5279375, at *6 (Tenn. Crim. App. Oct. 23, 2018) (citing State v. Edmondson,
231 S.W.3d 925, 928 (Tenn. 2007)). “‘Assent’ has been defined as an ‘agreement,
approval, or permission; esp., verbal or nonverbal conduct reasonably interpreted as
willingness.’” Id. (quoting Black’s Law Dictionary 115-16 (10th ed. 2014)). Here, it is
clear that the defendant received a no-trespass form and did not have the effective
consent of Walmart to enter or remain on its property.
Moreover, “the word ‘building’ is not a complex legal term.” State v. Bowens,
No. E2017-02075-CCA-R3-CD, 2018 WL 5279374, at *7 (Tenn. Crim. App. Oct. 23,
2018). The words contained in a statute must be given their ordinary and common
meaning. State v. Gentry, 538 S.W.3d 413, 420 (Tenn. 2017). The “natural and ordinary
meaning” of the term is “a structure with walls and a roof, esp. a permanent structure.”
Bowens, 2018 WL 5279374, at *7 (quoting Black’s Law Dictionary 194-95 (10th ed.
2014)). As the Court of Criminal Appeals has concluded, “[b]ecause the word ‘building’
in subsection 39-14-402(a)(3) is not ambiguous, there is no ambiguity to resolve in favor
of [the] [d]efendant under the rule of lenity.”4 Id. at *7; see also Ivey, 2018 WL
5279375, at *10-11 (Tenn. Crim. App. Oct. 23, 2018).
4
This Court invited amicus curiae to file briefs in this case. The Tennessee Association of
Criminal Defense Lawyers and the Knox County Public Defender filed a brief asserting that the statute is
ambiguous when viewed in context and under the rule of lenity and that “there is nothing in the legislative
history or explanatory comments to suggest that, at any point during the process, anyone intended that
(a)(1) and (a)(3) cover different sets of buildings.” The rule of lenity has been described as a “tie-
breaker” for a defendant in the event of an unresolved ambiguity in a statute, State v. Marshall, 319
S.W.3d 558, 563 (Tenn. 2010), but resorting to the rule first necessitates a “grievous ambiguity or
uncertainty” in the statute, Huddleston v. United States, 415 U.S. 814, 831 (1974).
-7-
It is noteworthy that Tennessee Code Annotated section 39-14-402(a)(1) contains
the phrase “not open to the public” whereas section 39-14-402(a)(3) does not. The canon
of statutory construction expressio unius est exclusio alterius provides that “where the
legislature includes particular language in one section of a statute but omits it in another
section of the same act, it is generally presumed that the legislature acted purposefully in
the subject included or excluded.” State v. Loden, 920 S.W.2d 261, 265 (Tenn. Crim.
App. 1995); Frazier, 558 S.W.3d at 153 (quoting Lewis, 958 S.W.2d at 739) (noting that
“[w]hen one statute contains a given provision, the omission of the same provision from a
similar statute is significant to show that a different intention existed”).
The defendant, however, relies heavily on the interpretation proffered in a recent
law review article, Jonathan Harwell, Burglary at Wal-Mart: Innovative Prosecutions of
Banned Shoplifters Under Tenn. Code Ann. § 39-14-402, 11 Tenn. J.L. & Pol’y 81
(2016). The article posits that because the phrase was used to modify “building” the first
time it is referenced in the statute, it should be inferred thereafter. Id. at 88. In other
words, the phrase “not open to the public” in (a)(1) should be “construed as coextensive”
with the other provisions to “streamline the statute.” Id. at 88-89. Thus, the point is that
subsection (a)(1) and (a)(3) of the burglary statute was not intended to cover buildings
open to the public. Even so, this interpretation finds little support in our well-established
tenets of statutory construction. We presume that the legislature purposely included the
phrase “not open to the public” in code subsection 39-14-402(a)(1) and purposely
excluded the same phrase from subsection -402(a)(3). The same presumption applies to
the legislature’s inclusion of “other than a habitation” in subsection -402(a)(1) and
exclusion of “other than a habitation” in subsection -402(a)(3).
When the text of a statute is clear and unambiguous, we need not look beyond the
plain language of the statute to ascertain its meaning. Green v. Green, 293 S.W.3d 493,
507 (Tenn. 2009) (citing State v. Strode, 232 S.W.3d 1, 9-10 (Tenn. 2007); Corum v.
Holston Health & Rehab. Ctr., 104 S.W.3d 451, 454 (Tenn. 2003). This Court has stated
that “no matter how illuminating” legislative history is, it “cannot provide a basis for
departing form clear codified statutory provisions.” Lee Med., Inc., 312 S.W.3d at 528.
Because the plain language of the burglary statute is clear, we will not depart from our
long-held canons of statutory construction and delve into the legislative history of an
unambiguous statute.
C. Constitutional Challenge
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The defendant argues that the statute at issue in this case, Tennessee Code
Annotated section 39-14-402(a)(3), is “vague and unenforceable because the statute fails
to give “fair warning such that a person of common intelligence would understand what
is prohibited.” She also alleges that the “personal predilections of the District Attorney
caused [the District Attorney] to exercise her discretion such as to make a misdemeanor
offense of criminal trespass into a felony,” and that in doing so, “expand[ed] the reach of
the burglary statute beyond the plain meaning” in violation of the doctrine of Separation
of Powers. The State responds that the plain language of the statute supports the
statutory interpretation by the district attorney in this case and “clearly makes punishable
as a burglary the entry into a store from which one has repeatedly been banned, to
commit theft.”
In Tennessee, the General Assembly’s task is “to define what shall constitute a
criminal offense and to assess punishment for a particular crime.” State v. White, 362
S.W.3d 559, 567 (Tenn. 2012) (quoting State v. Farner, 66 S.W.3d 188, 200 (Tenn.
2001) (citation omitted)) (internal quotation marks omitted). However, the constitutional
principle of due process dictates, “among other things, notice of what the law prohibits.”
Id. (quoting Knoxville v. Entm’t Res., LLC, 166 S.W.3d 650, 655 (Tenn. 2005)). Under
our principles of due process, a vague statute is subject to a constitutional challenge if it:
“(1) fails to provide fair notice that certain activities are unlawful; and (2) fails to
establish reasonably clear guidelines for law enforcement officials and courts, which, in
turn, invites arbitrary and discriminatory enforcement.” State v. Pickett, 211 S.W.3d 696,
702-03 (Tenn. 2007) (citing Rose v. Locke, 423 U.S. 48, 49-50 (1975); Smith v. Goguen,
415 U.S. 566, 572-73 (1974); State v. Forbes, 918 S.W.2d 431, 448 (Tenn. Crim. App.
1995)).
The relevant case law applicable to a constitutional challenge on the grounds of
vagueness is well-developed. See, e.g., State v. Crank, 468 S.W.3d 15, 22-23 (Tenn.
2015); Pickett, 211 S.W.3d at 704; State v. Lyons, 802 S.W.2d 590, 591 (Tenn. 1990);
State v. Wilkins, 655 S.W.2d 914, 915-16 (Tenn. 1983); State v. Thomas, 635 S.W.2d
114, 116 (Tenn. 1982). This Court has held:
“It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined. Grayned v. City of
Rockford, 408 U.S. 104, 108 [ ] (1972). The fair warning required
embodied in the due process clause prohibits the states from holding an
individual criminally responsible for conduct which he could not have
reasonably understood to be proscribed. United States v. Harriss, 347 U.S.
612, 617 [ ] (1954). Due process requires that the law give sufficient
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warning so that people may avoid conduct [that] is forbidden. Rose v.
Locke, 423 U.S. 48, 49-50 (1975).”
Lyons, 802 S.W.2d at 591 (quoting Thomas, 635 S.W.2d at 116); see White, 362 S.W.3d
at 566 (noting that statutes must give persons “of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that [they] may act accordingly”) (alteration in
original) (citations and internal quotation marks omitted).
“‘A criminal statute that forbids the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its application
violates the first essential of due process of law.’” Leech v. Am. Booksellers Ass’n, 582
S.W.2d 738, 746 (Tenn. 1979) (citing U.S. Const. amend. XIV, § 1 (“[N]or shall any
state deprive any person of life, liberty, or property, without due process of law . . . .”);
Tenn. Const. art. I, § 8 (“[N]o man shall be taken or imprisoned, or disseized of his
freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or
deprived of his life, liberty or property, but by the judgment of his peers or the law of the
land.”)). However, this Court has explained that
“[t]he fair warning requirement . . . does not demand absolute precision in
the drafting of criminal statutes. A statute is not vague [that] by orderly
processes of litigation can be rendered sufficiently definite and certain for
purposes of judicial decision . . . . In fact, it is the duty of the courts to
adopt a construction [that] will sustain a statute and avoid constitutional
conflict if its recitation permits such a construction.”
White, 362 S.W.3d at 567 (quoting State v. Burkhart, 58 S.W.3d 694, 697-98 (Tenn.
2001)).
The due process doctrine of vagueness also encompasses as a
principal element the requirement that legislatures set reasonably clear
guidelines for law enforcement officials and triers of fact to prevent
arbitrary and discriminatory enforcement. A statute may be held vague on
its face if it provides no legally fixed standards and leaves to the “personal
predilections” of an officer, prosecutor, judge or jury the determination of
the illegality of conduct.
Lyons, 802 S.W.2d at 591 (citations omitted). The constitutional test for vagueness is
whether a statute’s “‘prohibitions are not clearly defined and are susceptible to different
interpretations as to what conduct is actually proscribed.’” Forbes, 918 S.W.2d at 447-48
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(quoting Grayned, 408 U.S. at 108; Baggett v. Bullitt, 377 U.S. 360, 367 (1964)); Crank,
468 S.W.3d at 23.
The defendant finds support for her position in the dissenting opinion authored by
Judge McMullen in the Court of Criminal Appeals. Judge McMullen posited that
“fundamental fairness requires that this individual be charged with the misdemeanors of
shoplifting and criminal trespass” and that “prosecutors violate procedural due process by
abusing their charging discretion and by unilaterally and unreasonably expanding the
reach of the burglary statute.” Welch, 2019 WL 323826, at *5 (McMullen, J.,
dissenting). Moreover, she notes that “because the offenses of shoplifting and criminal
trespass more than adequately address the harm involved when a banned individual
commits an act of shoplifting, application of the burglary statute in cases like this violates
procedural and substantive due process.” Id. at *6.
Judge McMullen also cited concerns about the overall statutory scheme. She
noted that “Tennessee Code Annotated section 39-14-105 was amended to provide that
theft of property or services is a Class A misdemeanor if the value of the property or
services obtained is $1000 or less, rather than the previous threshold of $500 or less.” Id.
(citing Tenn. Code Ann. § 39-14-105(a)(1)). Tennessee Code Annotated section 39-14-
146 was amended to add subsection (c), which provides that “[n]otwithstanding any other
law, a fifth or subsequent [shoplifting] conviction in a two-year period shall be punished
one (1) classification higher than provided by § 39-14-105, and subject to a fine of not
less than three hundred dollars ($300) nor more than the maximum fine established for
the appropriate offense classification.” Tenn. Code Ann. § 39-14-146(c). In short, Judge
McMullen posited that “these amendments evince an understanding that shoplifting is a
petty, non-violent property offense that should not be punished as harshly as burglary.”
Id. at *6. The defendant argued this point, as well.
The defendant implies that by amending section 39-14-146(c) to increase the
punishment for five-time shoplifters, the legislature expressed its displeasure with the
State’s prosecution for burglary at retail stores. A canon of statutory construction is “that
the General Assembly is aware of its own prior enactments.” Lee Med., Inc., 312 S.W.3d
at 527 (citing Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008)).
Accordingly, we presume that the legislature was aware of Tennessee Code Annotated
section 39-14-402(a)(3) and its application at the time it amended Tennessee Code
Annotated section 39-14-146(c) to increase the punishment for serial shoplifters. Carter,
279 S.W.3d at 564 (citing Ki v. State, 78 S.W.3d 876, 879 (Tenn. 2002)) (“We must
presume that the General Assembly is aware of prior enactments and of decisions of the
courts when enacting legislation.”). Had the legislature not intended such an application
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of the burglary statute, it has since had the opportunity to amend the statute after the first
appellate court decisions affirming such prosecutions were released in 2018. See
Bowens, 2018 WL 5279374, at *11; Ivey, 2018 WL 5279375, at *11. In the absence of
legislative action, we presume that the legislature intended both statutes to act in concert
with each other.
“Two statutes prohibiting the same wrong and prescribing different degrees of
punishment cannot exist at same time.” Mowery v. State, 352 S.W.2d 435, 437 (citing
State v. Lewis, 278 S.W.2d 81, 82 (Tenn. 1955)). The burglary statute and the “serial
shoplifter” statute prohibit different criminal activities. The two offenses have different
elements and punish different wrongs. The burglary statute is applicable to offenders,
including repeat shoplifters, who enter a building without the effective consent of the
owner and commit a felony theft or assault therein, whereas the repeat shoplifting statute
is limited in its applicability. See Welch, 2019 WL 323826, at *4. There is no indication
that the legislature’s intent in enacting the serial shoplifting statute was to repeal
subsection 39-14-402(a)(3) by implication. Id.; see Mowery v. State, 352 S.W.2d 435,
438 (Tenn. 1961).
The State summarized its argument as follows: “Anybody of common intelligence
can understand from the plain language of section (a)(3) that if she has been told she does
not have consent to enter a store, but she enters anyway and commits a theft, she will
have committed burglary.” We agree.
Burglary charges stemming from thefts committed inside retail stores are not
unique to Tennessee. Some states follow our statutory construction. See, e.g., Brasuell v.
State, 472 S.W.3d 499, 502 (Ark. Ct. App. 2015) (interpreting Arkansas’s commercial
burglary statute to permit defendant’s prosecution for Class C felony burglary of Walmart
after receiving a “notice of restriction from property”); People v. Bradford, 50 N.E.3d
1112, 1120 (Ill. 2016) (explaining that the burglary statute applies when an individual
enters a public building lawfully but, with the intent to commit a theft or felony, inter
alia, continues to remain on the premises after his authority is explicitly revoked); State
v. Acevedo, 315 P.3d 261, 266 (Kan. Ct. App. 2013) (affirming burglary convictions for
offenses committed in retail stores because the “aggravated burglary statute contain[ed]
no language that exclude[d] from its purview a building generally open to the public, if
entry into that building is unauthorized”); State v. Loggins, 464 S.W.3d 281, 284 (Mo. Ct.
App. 2015) (affirming burglary conviction where “there was no evidence that Wal-Mart
either expressly or impliedly rescinded its notification banning [the defendant] from the
property” and that the notice “remained in effect, rendering [the defendant’s] entry
unlawful”); State v. Skrepenski, 2014 WL 2957812, No. WD-13-036, *6 (Ohio Ct. App.
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June 27, 2014) (affirming the defendant’s burglary conviction based upon entering a
Walmart store after being “trespassed” and committing a theft therein); State v. Kutch,
951 P.2d 1139 (Wash. Ct. App. 1998) (interpreting the state’s burglary statute as
applying to shoplifters who return to the same store to shoplift after being issued a no-
trespass letter). Cf. Todd v. State, 494 S.W.3d 444, 450 (Ark. Ct. App. 2016) (stating that
the evidence was insufficient to support conviction for commercial burglary because
Walmart is open to the public and there was no evidence that the defendant had been
banned from the premises).
Other jurisdictions have lessened the quantum of criminal liability and do not
require a retail store that is open to the public to expressly revoke its consent to enter to
sustain a conviction for burglary. See, e.g., People v. Isom, 193 Cal. Rptr. 3d 58, 60 (Cal.
Ct. App. 2015) (affirming conviction for burglary based on California Penal Code section
459, which criminalizes the act of entering a store “with intent to commit grand or petit
larceny or any felony,” regardless of whether any felony is actually committed after
entering the establishment); State v. Rawlings, 363 P.3d 339, 342 (Idaho 2015)
(articulating that, pursuant to the Idaho burglary statute, “[e]very person who enters any
house, . . . shop, warehouse, store, . . . or other building . . . with intent to commit any
theft or any felony, is guilty of burglary” and that “there is no requirement that a burglar
actually commit a theft . . . [t]he crime is complete when there is an entry with the intent
to commit a theft . . . ”).5 But see State v. King, 386 P.3d 886, 890 (Haw. 2016) (finding
evidence insufficient to support conviction for second-degree burglary because Hawaii’s
statute defines “enter or remain unlawfully” as requiring that a person “def[y] a lawful
order not to enter or remain,” not merely that the person be issued a “no trespass” letter).
In contrast, New Mexico has specifically rejected application of a felony burglary
statute to a situation involving a “no trespass” letter issued by a retail store that is
otherwise open to the public. State v. Archuleta, 346 P.3d 390, 395-96 (N.M. Ct. App.
2014) (“[W]e conclude that violating an order of no trespass by entering an otherwise
open public shopping area with the intent to commit a theft does not constitute the type of
harmful entry required for a violation of the burglary statute . . . [and] that to hold
otherwise allows the State to use the burglary statute to enhance the misdemeanor act of
trespassing to a felony. . . .”).
5
We note that the relevant burglary statutes in the cited cases are distinguishable from that of this
State in that those statutes contain no requirement that the defendant’s entry be “without the effective
consent of the property owner.” See Idaho Code Ann. § 18-1401; Cal. Penal Code § 459.
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In reviewing cases from other jurisdictions, this Court is particularly persuaded by
a recent opinion issued by the Illinois Supreme Court. People v. Johnson, 2019 WL
3559640, ___ N.E.3d ___ (Ill. Aug. 1, 2019). In that case, the defendant was charged
with burglary for “without authority” and “knowingly” entering a Walmart store “with
the intent to commit therein a theft.” Id. at *1. The defendant appealed his conviction,
arguing, among other issues, that “the passage of the retail theft statute . . . evinced a
legislative intent to occup[y] the field of shoplifting crimes.” Id. at *3 (internal quotation
marks omitted). The intermediate appellate court reversed the defendant’s conviction,
and the State appealed to the Illinois Supreme Court, which granted leave to appeal. Id.
The Illinois Supreme Court first enunciated its burglary statute: “A person
commits burglary when without authority he or she knowingly enters or without authority
remains within a building, . . . or any part thereof, with intent to commit therein a felony
or theft.”6 Id. (alteration in original) (citing 720 Ill. Comp. Stat. 5/19-1(a)). Although
Illinois is one of the states that has lowered the quantum of criminal liability necessary to
sustain a conviction for burglary of a retail store, the court nonetheless utilized statutory
construction7 to arrive at the conclusion that the criminal offense committed in that case
was encompassed by the burglary statute. Id. at *3-4 (citing cases for various
propositions, including that “[f]or over 100 years, Illinois case law has recognized that
entering a retail store with the intent to commit a theft amounts to the crime of burglary,”
that “authority to enter a business building, or other building open to the public, extends
only to those who enter with a purpose consistent with the reason the building is open,”
and that “[a]n entry with intent to commit a theft cannot be said to be within the authority
granted patrons [of a business]”).
Illinois considered and rejected a vagueness argument advanced by the defendant
in that case, reasoning as follows:
6
Notably, the term “without authority” is synonymous with our statute’s language, “without the
effective consent of the owner.”
7
Tennessee and Illinois share many of the same canons of statutory construction. Specifically,
Tennessee’s precept that courts must presume that the legislature is aware of prior enactments and of
appellate court decisions interpreting those enactments when passing legislation goes hand in hand with
Illinois’ guidance: “When the legislature chooses not to amend a statute following judicial construction, it
is presumed that the legislature has acquiesced in the court’s construction of the statute and the
declaration of legislative intent.” Johnson, 2019 WL 3559640, at *3. Both State v. Bowens, No. E2017-
02075-CCA-R3-CD, 2018 WL 5279374 (Tenn. Crim. App. Oct. 23, 2018) and State v. Ivey, No. E2017-
02278-CCA-R3-CD, 2018 WL 5279375 (Tenn. Crim. App. Oct. 23, 2018) addressed this precise issue
and were released by the Court of Criminal Appeals in October 2018. Yet, the legislature has not reacted
to those opinions by amending the statute in question.
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Finally, we note that defendant makes a broad and vague argument
that the legislature did not intend for the limited authority doctrine to apply
to an unauthorized-entry burglary involving retail stores following the
enactment of the retail theft statute. Defendant asserts that the legislature
intended for acts of shoplifting to be prosecuted and punished under the
retail theft statute rather than the burglary statute.
While it is true that the legislature intended acts of retail theft to be
prosecuted under the retail theft statute, defendant’s argument misses the
point. His alleged act of shoplifting was prosecuted under the retail theft
statute. He was convicted of burglary, by contrast, for his distinct act of
entering a store with the intent to shoplift. The two crimes contain different
elements and address distinct harms. Burglary requires an intent to commit
a theft upon entry and is complete upon the moment of entry whether or not
any theft actually occurs, whereas retail theft requires that the defendant
take possession of merchandise with the intent of permanently depriving
the merchant of the item without paying full retail value. Defendant’s
argument also rests on the mistaken premise that the harm caused by
shoplifting and the harm caused by entering a store with the intent to
shoplift are measured in the same way—by the value of the items a person
steals or intends to steal. But, as noted above, a person who enters a store
with the intent to steal is at least arguably more culpable than a person who
steals after entering innocently. Although defendant may disagree with the
assessment of the relative culpability posed by his conduct or the risk
presented by it, it is the legislature’s role to declare and define conduct
constituting a crime and to determine the nature and extent of the
punishment for it.
Id. at *7 (citations omitted).
In sum, our review leads us to conclude that the burglary statute is properly
applied to defendants who enter a store without the effective consent of the owner and
therein commit a theft, felony, or assault.8 We hold that Tennessee Code Annotated
8
In their joint amici curiae brief, the Knox County Public Defender’s Community Law Office
and the Tennessee Association of Criminal Defense Lawyers point out that the burglary statute has been
in effect since 1989, yet prosecutions under the burglary statute of persons who shoplift after having been
banned from a retail establishment for previously shoplifting did not begin until 2015. They maintain that
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section 39-14-402(a)(3) is not vague as applied. It is not ambiguous and provides fair
warning to individuals who enter a building without the owner’s effective consent and
commit a felony, theft, or assault. In addition, we find no due process violation in
construing Tennessee Code Annotated section 39-14-402(a)(3) to be applicable to
buildings open to the public, such as a retail stores, when, as in this case, consent to enter
has been expressly revoked. As aptly stated by the Idaho Supreme Court, “[The
defendant] may not like the fact that retail stores are within the ambit of the statute during
business hours, but that is a matter within the discretion of the legislature.” Rawlings,
363 P.3d at 342.
As pointed out by amici curiae Retail Litigation Center, Inc., National Association
for Shoplifting Prevention, and Tennessee Retail Association, “no trespass” letters are
critical to breaking the cycle of recidivist shoplifting. If individuals comply with the
letters, they serve to avoid future encounters between loss prevention officers and “serial
shoplifters.” However, “no-trespass letters serve little purpose if they are effectively
voided any time a person manages to re-enter a store in defiance of being barred from the
premises.” The “more sensible approach,” as advocated by amici, is the one adopted in
this case and others in Tennessee and several other states. It “recognizes that shoplifters
who re-enter a store to steal (again) after being formally barred have committed a serious
crime, which will be deterred only with serious penalties.”
D. Prosecutorial Discretion
since 2015 there have been more than 500 prosecutions of this sort involving only Walmart. There have
been prosecutions involving other retailers as well. They point out that persons convicted of burglary
serve longer sentences; therefore, they assert that the fiscal impact of these prosecutions is enormous,
costing taxpayers $165,000 more for a single defendant convicted of burglary rather than shoplifting.
They assert that the General Assembly could not have intended such a significant fiscal impact. These
arguments, “however meritorious, must be directed to the General Assembly, not the courts.” Pickard v.
Tenn. Water Quality Control Bd., 424 S.W.3d 511, 524 (Tenn. 2013). Our holding in this case is based
squarely on the plain language of the statute. We are not at liberty to amend or alter statutes or “substitute
our own policy judgments for those of the General Assembly.” Britt v. Dyer’s Empl. Agency, Inc., 396
S.W.3d 519, 523 (Tenn. 2013). “[I]t is up to the General Assembly, not this Court, to promulgate the
parameters of the offense.” State v. Owens, 20 S.W.3d 634, 641 (Tenn. 2000). The arguments of the
joint amici should be presented to the General Assembly, and the General Assembly may want to
consider whether the plain language of the burglary statute accurately reflects its intent. See Payne v.
State, 493 S.W.3d 478, 492 (Tenn. 2016).
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The defendant posits that “[e]ven if one finds no ambiguity and that the statute is
not vague and over-broad, there remains the issue of abuse of prosecutorial discretion”
and that “[a] novel application” of a statute may rise to that level. It is well-established
that prosecutors have wide discretion in deciding what charges to bring against a
defendant. “A District Attorney General is an elected constitutional officer whose
function is to prosecute criminal cases in his or her circuit or district.” Ramsey v. Town
of Oliver Springs, 998 S.W.2d 207, 209 (Tenn. 1999) (citing State v. Superior Oil, Inc.,
875 S.W.2d 658, 660 (Tenn. 1994). The Tennessee Constitution provides the basis for a
popularly-elected District Attorney General, Tenn. Const. art. VI, § 5, while the
legislature codified many of the duties and responsibilities attendant to the office, Tenn.
Code Ann. § 8-7-103(1). Foremost among them is that “[e]ach district attorney general .
. . [s]hall prosecute in the courts of the district all violations of the state criminal statutes
and perform all prosecutorial functions attendant thereto . . . .” Ramsey, 998 S.W.2d at
209 (alterations in original). “The District Attorney General’s discretion to seek a
warrant, presentment, information, or indictment within its district is extremely broad and
subject only to certain constitutional restraints.” Id. (citing Superior Oil, 875 S.W.2d at
660; Dearborne v. State, 575 S.W.2d 259, 262 (Tenn. 1978); Quillen v. Crockett, 928
S.W.2d 47, 50-51 (Tenn. Crim. App. 1995)).
This Court observed in Superior Oil:
“[T]here are no statutory criteria governing the exercise of the
prosecutorial discretion traditionally vested in the officer in determining
whether, when, and against whom to institute criminal proceedings. Indeed,
it has been often recognized that ‘prosecutorial discretion in the charging
process is very broad.’ So long as the prosecutor has probable cause to
believe that the accused committed an offense, the decision whether to
prosecute, and what charge to bring before a grand jury generally rests
entirely within the discretion of the prosecution . . . .”
Ramsey, 998 S.W.2d at 210 (quoting Superior Oil, 875 S.W.2d at 660).
Our United States Supreme Court has also recognized a prosecutor’s vast
discretion:
A prosecutor exercises considerable discretion in matters such as the
determination of which persons should be targets of investigation, what
methods of investigation should be used, what information will be sought
as evidence, [and] which persons should be charged with what offenses . . .
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. These decisions, critical to the conduct of a prosecution, are all made
outside the supervision of the court.
Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987). “‘[S]o long as the
prosecutor has probable cause to believe that the accused committed an offense . . . , the
decision whether or not to prosecute, and what charge to file or bring before a grand jury,
generally rests entirely within his discretion.’” State v. Jones, 2019 WL 5956361, at *8,
___ S.W.3d ___, ___ (Tenn. 2019) (alteration in original) (quoting State v. Harris, 33
S.W.3d 767, 771 (Tenn. 2000)). “Prior to indictment, the district attorney ‘has virtually
unbridled discretion in determining whether to prosecute and for what offense.’” State v.
Mangrum, 403 S.W.3d 152, 163 (Tenn. 2013) (quoting Dearborne, 575 S.W.2d at 262).
This Court has held that even in cases in which a defendant’s conduct could have
supported less severe criminal charges with penalties more proportionate to the actual
harm that the defendant caused, decisions about “whether to prosecute and for what
offense” are matters of prosecutorial discretion. State v. Gentry, 538 S.W.3d 413, 427
(Tenn. 2017). Given the expansive nature of the prosecutor’s discretion, we cannot agree
that the prosecutor abused her discretion by charging the defendant with burglary under
the facts of this case.
III. CONCLUSION
We conclude that the language of the statute criminalizing burglary is clear and
unambiguous on its face. We further conclude that the statute is not unconstitutionally
vague as applied and that nothing in the statute precludes its application to the fact
scenario presented herein. The prosecutor did not exceed her discretion in interpreting
and applying the statute in this regard. Therefore, we affirm the judgment of the Court of
Criminal Appeals. It appearing that the defendant Abbie Leann Welch is indigent, costs
of this appeal are taxed to the State of Tennessee.
_________________________________
ROGER A. PAGE, JUSTICE
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