State v. Theodore Howard ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY SESSION, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9508-CR-00237
)
Appellee, )
)
) SHELBY COUNTY
FILED
VS. ) April 11, 1997
) HON. JOSEPH B. DAILEY
THEODORE F. HOWARD, ) JUDGE Cecil Crowson, Jr.
) Appellate C ourt Clerk
Appe llant. ) (AGGRAVATED BURGLARY)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
DANIEL FLATT CHARLES W. BURSON
Assistant Public Defender Attorney General & Reporter
201 Poplar - Suite 2-01
Memphis, TN 38103
TONY BRAYTON CLINT ON J. M ORG AN
Assistant Public Defender Assistant Attorney General
201 Poplar - Suite 2-01 450 James Robertson Parkway
Memphis, TN 38103 Nashville,TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
DAVID HENRY
Assistant District Attorney General
District Attorney General’s Office
201 Poplar Avenue, 3rd Floor
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The appe llant, T heod ore F. H oward , appe als as of right pursu ant to R ule
3 of the Tennessee Rules of Appellate Procedure. The Appellant was convicted
of aggrava ted burg lary in the S helby C ounty C riminal C ourt. The Appellant was
sentenced by the trial court to serve fifteen (15) years as a Range III Career
Offender. The sole issue the Ap pellan t raises for app eal is whether the trial cou rt
erred in failing to instruct the jury on the lesser offense of burglary. We affirm the
judgm ent of the tria l court.
At about 10:00 a.m. on September 4, 1994, a neighbor to the house
located at 1155 Central Avenue in Memphis heard a loud banging noise. The
neighbor and his wife went to their back door and observed a man, who they later
identified as the Appellant, breaking out a window on the back door of the house
with a brick. The property known as 1155 Central Avenue was then in the
possession of United American Bank due to a foreclosure on the property. The
house on that property had been vacant for approxim ately two m onths p rior to
September 4, 1994 . No one other tha n the ba nk’s age nts had permis sion to
enter or take any property from 1155 Central Avenue. The neighbors saw the
Appellant enter the hous e. The neigh bors notified the police, and the n the wife
and another neighbor waited at the fron t of the h ouse while her husband, armed
with a sho tgun, wa ited at the b ack of the house for the police to arrive.
The Appella nt attem pted to lea ve the ho use with a ceiling fan, but then saw
the neighbor waiting at the back of the house. The Appellant put the fan down
in the doo rway of the house . The neighbor waiting in the back told the Appellant
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the police were on their way and to stop, but the Appellant proceeded to go
around the side of the house. The neighbor observed what appeared to be a
shiny weapon in the Appellant’s hand, and he followed the Appellant to the front
of the house. He told the Appellant to put his weapon down and to get down on
the sid ewalk . The A ppella nt com plied a nd wa s held there by the neighbor until
the police arrived. The police officer who arrived took the Appellant into custody
based upon the information of the witnesses. Appellant gave a statement to the
police, introdu ced in to evide nce, in which he ad mitted break ing into the house,
taking the fan, and being caught and detained by the neighbors until the police
arrived.
I.
The issue Appellant raises for this Court’s review is whether the trial court
committed reversible e rror by failing to charge the jury with the instruction for the
lesser included offense of burglary. Only when there is some evidence upon
which reasonable minds could convict the defendant of a particular lesser offense
is the court required to instruct reg arding th at offense . Johns on v. State, 531
S.W.2d 558, 559 (Tenn. 1975); State v. Atkins, 681 S.W.2d 571, 577 (Tenn.
Crim. App. 19 84), cert. denied, 470 U.S. 1028 (1985). The practice of so
charging, when there is no evidence to support any lesser includ ed offe nses , is
not favored. State v. Mellons, 557 S.W .2d 497 , 499 (T enn. 19 77); Wh itwell v.
State, 520 S.W .2d 338 , 343 (T enn. 19 75).
Various evidence was presented at trial by the State to prove that the
building was a habitation. First, an employee of the United American Bank, who
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worked in the special asset department handling foreclosures and repossessions,
testified that the house at 1155 Cent ral Ave nue w as a sin gle-fam ily reside nce in
a reside ntial are a of Me mph is. This emplo yee also stated tha t the prop erty was
not occup ied at the time of this burglary. A second witness, a neighbor living
behind the property at 1155 Central Avenue, testified that the house was em pty
for approxim ately two m onths p rior to the time of the burglary. Other evidence
as to the nature of the house at 1155 Central was presented in the form of
photographs of the sing le-family res idence . No proo f that the house was not
desig ned a s a fam ily reside nce w as offe red at tr ial.
The Appellant contends that because the house at 1155 Central Avenue
was vacant at the time the Appellant entered the house, the trial cour t erred in its
failure to instruct the jury on burglary. According to Tenn. Code Ann. § 39-14-
403, a person commits aggravated burglary when he or she commits burglary of
a habitation as defined in Tenn. Code Ann. § § 39-14-401 and 39-1 4-402. A
“habitation” is defined as “ . . . any structure, including buildings, mobile homes,
trailers and tents, which is designed or adapted for the overnight accommodation
of persons . . .” Tenn. Code A nn. § 39-14-4 01(1)(A). “A person com mits burglary
who, without the effective consent of the property owner enters a building, other
than a habitatio n (or any p ortion there of) not op en to the p ublic, with inte nt to
comm it a felony, theft or assault . . . .” Tenn. Co de Ann. § 3 9-14-402(a )(1).
The appellant further argues that at some point after a house is unoccupied
the house ce ases to be a habitation. After the legislature rewrote the criminal
code in 1989, there ceased to be any requirement that the structure be occupied
at the time of the burglary in order for the structure to be considered a habitation.
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State v. Ja mes F ord, III, No. 02C01-9304-CR-00078, Shelby County (Tenn.
Crim. App., Jackson, filed Augu st 3, 1994 ), perm. to appeal denied (Tenn. 199 5).
In Ford, the defendant was convicted of aggravated burglary of a house which
was vacant. This Court held that the hous e that w as bu rglarize d was obviou sly
designed for overnight accommodation and w as clea rly a “ha bitation .” From all
testimony and other pictorial evidence within the record, the house which was
entered by the Appellant was obviously designed for overnight accommodation
and, the refore, wa s within the Legislatu re’s definition of a “hab itation.”
As the evidence is clear as to the nature of the habitation which the
Appellant admittedly entered, the issue of the court’s failure to give an
instruction on the les ser offen se of bur glary is witho ut merit.
We affirm the c onviction o f the trial court.
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THOMAS T. WOODALL, JUDGE
CONCUR:
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JOE B. JONES, Presiding Judge
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PAUL G. SUMMERS , Judge
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