10/23/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
July 24, 2018 Session
STATE OF TENNESSEE v. JASON KANE IVEY
Appeal from the Criminal Court for Knox County
No. 107008 Steven Wayne Sword, Judge
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No. E2017-02278-CCA-R3-CD
___________________________________
Jason Kane Ivey, Defendant, was convicted following a jury trial of two counts of
misdemeanor theft based on alternative theories and one count of Class D felony
burglary. The trial court merged the theft conviction in Count 3 into the theft conviction
in Count 2 and then merged the theft conviction in Count 2 into the burglary conviction
in Count 1 and sentenced Defendant to serve four years as a Range II multiple offender.
Defendant claims that his burglary conviction “violated constitutional due process
protections” because Tennessee Code Annotated section 39-14-402 is unconstitutionally
vague and subsection 39-14-402(a)(3) failed to give him fair warning that his conduct
was forbidden by the burglary statute. After a thorough review of the record, the briefs,
and applicable law, we hold that Tennessee Code Annotated section 39-14-402 is not
unconstitutionally vague and that subsection 39-14-402(a)(3) provided fair warning to a
person of common intelligence that a person could be convicted of burglary for
committing theft after entering a building open to the public, knowing the owner had
revoked its effective consent for the person to enter. We affirm the judgments of
conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and J. ROSS DYER, JJ., joined.
Keith Lowe, Knoxville, Tennessee, for the appellant, Jason Kane Ivey.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Charme Allen, District Attorney General; and Ta Kisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.
Mark E. Stephens, District Public Defender; and Jonathan Harwell, Assistant District
Public Defender, Knoxville, Tennessee, for the Amicus Curiae, Knox County Public
Defender’s Community Law Office.
OPINION
PROCEDURAL AND FACTUAL BACKGROUND
On January 26, 2016, the Knox County Grand Jury indicted Defendant for one
count of Class D felony burglary and two counts of Class A misdemeanor theft. The first
count alleged that Defendant “did unlawfully and knowingly enter a building without the
effective consent of the owner, Wal[]mart,1 and did commit a theft, in violation of
T[ennessee] C[ode] A[nnotated] [section] 39-14-402[.]” The second count alleged that
Defendant “did unlawfully and knowingly obtain property” in the value of $500.00 or
less owned by Walmart, without its effective consent. The third count alleged that
Defendant “did unlawfully and knowingly exercise control over property” in the value of
$500.00 or less owned by Walmart, without its effective consent.
May 24, 2016 Jury Trial
Cody Culver, a Walmart employee, encountered Defendant on March 9, 2015, at
the Walmart in Clinton. Mr. Culver identified a “Notification of Restriction from
Property” (“the first notification”) that Defendant signed. The first notification, which
was entered as an exhibit at trial, provided:
Walmart can prohibit individuals from entering its property who interfere
with its business, shoplift, destroy property, or otherwise behave in a
manner that is unacceptable to Walmart. Walmart has determined you have
engaged in conduct sufficient to necessitate limiting your access to
Walmart property. This document constitutes formal notice and warning
that you are no longer allowed on Walmart property or in any area subject
to Walmart’s control. This restriction on entry includes, but is not limited
to, all Walmart retail locations. Should you elect to ignore this notice and
enter Walmart property, Walmart may contact law enforcement and request
you be charged with criminal trespass.
The “Acknowledgement of Receipt” section of the first notification provided:
1
We use “Walmart” in this opinion to identify the corporation and stores. The actual corporate
entity is Walmart, Inc.
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I have read and understand this notice or, in the alternative have had it read
to me and understand and acknowledge that as of 9 day of March, 2015[,] I
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am prohibited from entering Walmart property. I understand this notice
will remain in effect until Walmart rescinds it.
Mr. Culver stated that he wrote and circled the word “life” on the first notification. He
stated that, if Walmart rescinded the ban and gave someone consent to enter upon its
property, it would be noted in the APIS system.2 He said that, if a person banned from
entry into Walmart is recognized in the store by an employee, that person is asked to
leave, and if they refuse, Walmart contacts local law enforcement and that person is
prosecuted for criminal trespass. He also identified a picture he took of Defendant in the
custody of the Clinton City Police.
Tiffany Ward, an asset protection associate at the Walmart located at 2501
University Commons in Knoxville, testified that she encountered Defendant on May 4,
2015, and that Defendant acknowledged receipt of a second notification, the printed
portion of which was identical to the first notification. The date May 4, 2015, was filled
in on the form. Above the line for the signature of recipient was written: “handcuffed
unable to sign.” Handwritten and circled was the word “life.” Defendant was charged
with shoplifting from the University Commons Walmart. He later pleaded guilty to
shoplifting and was sentenced to eleven months and twenty-nine days.
On September 22, 2015, Defendant and a female entered the East Towne Walmart
location and were observed concealing packages of meat down their pants by Steven
Roberts, a Walmart asset protection associate. Mr. Roberts testified that he stopped
Defendant and the female as they were exiting the building. Mr. Roberts determined
from the Walmart APIS database that Defendant was banned from Walmart. Defendant
received a third notification from Mr. Roberts. Mr. Roberts contacted the Knoxville
Police Department, and officers detained Defendant. A video recorded on various
Walmart security cameras was played for the jury. On cross-examination, Mr. Roberts
testified that, if a person banned from Walmart enters the store, he could confront them
himself and ask them to leave, or he could contact the police. He said Walmart did not
take measures to screen out people banned from Walmart and did not have a membership
card system checking people before they were permitted to enter.
2
The APIS system is not further identified in the record. We garner from the testimony of
Walmart employees that APIS is a database that provides information on individuals who have received a
notice that they are prohibited from entering Walmart.
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After the close of the State’s proof, Defendant recalled Mr. Roberts, who testified
that he had previously contacted law enforcement concerning individuals who were
banned from entry into Walmart, and the individuals were arrested for criminal trespass.
Defendant testified that he had received a “no trespass notice” from Walmart “on a
couple of occasions.” He stated that he had been back to Walmart “[q]uite a few [times],
but [he] kn[e]w at least three or four times a month, because [he] ha[d] an account set up
in Campbell County in the Walmart to send money to [his] [a]unt.” He said he had to
supply his full name, address, and social security number to Walmart to wire the money
to his aunt. He said that he had never been stopped by Walmart while using the wire
service or entering a store to shop. Defendant acknowledged that he knew before he
entered the Walmart building and stole meat on September 22, 2015, that he was banned
by Walmart from entering its property. He also admitted that he had previously pleaded
guilty to theft and a drug charge involving “less than a half gram of methamphetamine”
in Campbell County. On cross-examination, Defendant agreed that the Schedule II drug
offense was a felony, for which he was sentenced to three years. He also agreed that he
had two burglary convictions in 2008 and that he was sentenced to two years on each
burglary. He was also convicted of misdemeanor theft in Knox County on May 5, 2015,
and misdemeanor theft in Anderson County on May 20, 2015. He acknowledged that he
knew that he was banned from entering a Walmart for life.
Following deliberations, Defendant was convicted as charged.
Sentencing Hearing
A sentencing hearing was held on July 8, 2016. The presentence report, which
was entered as an exhibit, showed that Defendant had three felony convictions in
Campbell County—one for Schedule II drugs and two for “burglary other than
habitation”— and a misdemeanor theft conviction in Knox County concerning the May 4,
2015 incident at Walmart. The report listed arrests in Anderson County for failure to
appear, misdemeanor theft, and a probation violation and in Campbell County for
domestic violence by assault, possession of Schedule II drugs, and misdemeanor theft.
The report stated that no disposition was available for those offenses because records
from Anderson and Campbell County had not been received at the time the presentence
report was prepared. The report stated that Defendant “was affiliated with Aryan Nation”
but that Defendant “reported that he was no longer involved with this gang.” The trial
court sentenced Defendant to eleven months and twenty-nine days for each theft and four
years as a Range II multiple offender for a Class D felony burglary. The sentences were
ordered to be served concurrently. The court noted that it was sentencing Defendant to
the minimum sentence in the range, but “because of the repeated nature of [Defendant]’s
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crimes[,] this is a case that warrants a penitentiary sentence.” The court merged the theft
convictions into the burglary conviction.3
The timely motion for new trial was filed on August 8, 2016, and was argued and
denied on October 20, 2017. Defendant filed a notice of appeal on November 20, 2017.
ANALYSIS
On appeal, Defendant raises a single issue—that his “burglary conviction violates
constitutional due process protections.” He argues that his “conviction of burglary
cannot be sustained as doing so would violate the rights guaranteed him by the Fifth and
Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the
Tennessee State Constitution” because “Tennessee Code Annotated section 39-14-402, as
it relates to this matter, is unconstitutionally vague and failed to give [Defendant] fair
warning that his actions would constitute the offense of burglary.”
After being granted leave by this court, Amicus Curiae filed a brief raising two
questions in support of Defendant:
1. Does an individual commit burglary who, having been previously
provided with a notice banning him or her from a retail store,
subsequently enters that store at a time when it is open to the public and
then shoplifts?
2. Does a retail store “effectively consent” to the entry of individuals, even
if that store has previously given them notice to stay out, if it allows
them to enter, shop, and conduct legitimate transactions, and checks the
database to see if they have been banned only if they are suspected of
theft?
3
The trial court properly merged the theft convictions into the burglary conviction. Under
Tennessee Code Annotated section 39-14-402(a)(1)(2) and (4), “the crime of burglary is complete when
entry has been made [or the person remains] . . . without the owner’s consent and with an intent to
commit a felony, theft, or assault.” State v. Ralph, 6 S.W.3d 251, 255 (Tenn. 1999). “Consummation of
the intended felony, theft, or assault is not necessary to complete the crime of burglary.” Id. Therefore, a
conviction of theft does not merge into the burglary conviction under these subsections. However, under
Tennessee Code Annotated section 39-14-402(a)(3) the crime of burglary is not complete until the person
commits or attempts to commit a felony, theft, or assault. Under a double jeopardy analysis, the statutory
violations of theft and burglary in this case arose from the same act or transaction. When the elements of
the offenses, theft and burglary under -402(a)(3), are compared in the abstract, the elements of theft are
fully contained within the elements of burglary under -402(a)(3). See State v. Watkins, 362 S.W.3d 530,
545-46 (Tenn. 2012). Accordingly, double jeopardy considerations required the trial court merge the
theft convictions into the burglary conviction.
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The State argues that Defendant’s burglary conviction does not violate due process
and is not unconstitutionally vague.
We hold that Tennessee Code Annotated section 39-14-402 is not
unconstitutionally vague and that subsection 39-14-402(a)(3) provides fair warning to a
person of common intelligence that a person commits burglary if the person enters a
building and commits a felony, theft, or assault after the owner revokes its consent for the
person to enter. Concerning the first question raised by Amicus Curiae, we determine
that a person can burglarize a building open to the public under subsection 39-14-
402(a)(3). Concerning the second question raised by Amicus Curiae, we determine that a
retail store does not effectively consent to the entry of an individual who has knowledge
that his or her consent to enter the store has been revoked simply because that individual
enters its store to carry on a commercial activity. A retail store’s failure to recognize a
banned individual who enters its buildings does not amount to “assent in fact, whether
express or apparent,” for the banned individual to enter the retail store. See Tenn. Code
Ann. § 39-11-106(a)(9). The portion of the question stating that the retail store “checks
the database to see if they have been banned only if they are suspected of theft” is not
supported by the facts of this case, and we will not address that portion of the question.
Standard of Review
This court reviews constitutional issues de novo. State v. Merriman, 410 S.W.3d
779, 791 (Tenn. 2013). Statutory interpretation and the application of a statute to
undisputed facts present a question of law, which this court reviews de novo with no
presumption of correctness. Kyle v. Williams, 98 S.W.3d 661, 663-64 (Tenn. 2003).
Fair Warning and Vagueness Doctrines
Defendant’s due process arguments are grounded in the interrelated doctrines of
vagueness and fair warning. The vagueness doctrine is “mandated by the Due Process
Clauses of the Fifth Amendment (with respect to the Federal Government) and the
Fourteenth Amendment (with respect to the States).” Welch v. United States, 136 S. Ct.
1257, 1261-62 (2016). The Tennessee Constitution provides that no person shall be
“deprived of his life, liberty or property, but by the judgment of his peers or the law of
the land.” Tenn. Const. art. I, § 8.
In United States v. Harriss, 347 U.S. 612, 617, (1954), the United States Supreme
Court characterized the fair notice principle as follows:
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The constitutional requirement of definiteness is violated by a criminal
statute that fails to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute. The underlying principle
is that no man shall be held criminally responsible for conduct which he
could not reasonably understand to be proscribed.
A criminal statute “must give fair warning of the conduct that it makes a crime[.]”
Bouie v. City of Columbia, 378 U.S. 347, 350-51 (1964). The doctrine of fair warning is
closely linked to the doctrine of vagueness. “The primary purpose of the vagueness
doctrine is to ensure that our statutes provide fair warning as to the nature of forbidden
conduct so that individuals are not ‘held criminally responsible for conduct which [they]
could not reasonably understand to be proscribed.’” State v. Crank, 468 S.W.3d 15, 22-
23 (Tenn. 2015) (alteration in original) (quoting Harriss, 347 U.S. at 617).
The Tennessee Supreme Court, in a case involving a statute proscribing gambling
devices, stated the following about fair warning:
A statute may be void for vagueness if it is not “sufficiently precise to put
an individual on notice of prohibited activities.” State v. Wilkins, 655
S.W.2d 914, 915 (Tenn. 1983). A criminal statute must be construed
according to the fair import of its terms when determining if it is vague.
See Tenn. Code Ann. § 39-11-104 (1989). Due process requires that a
statute provide “fair warning” and prohibits holding an individual
criminally liable for conduct that a person of common intelligence would
not have reasonably understood to be proscribed. Grayned v. City of
Rockford, 408 U.S. 104, [108] . . . (1972); see also State v. Lyons, 802
S.W.2d 590, 591 (Tenn. 1990). The fair warning requirement, however,
does not demand absolute precision in the drafting of criminal statutes. See
Wilkins, 655 S.W.2d at 916. . . . In fact, it is the duty of the courts “to
adopt a construction which will sustain a statute and avoid constitutional
conflict if its recitation permits such a construction.” Lyons, 802 S.W.2d at
592.
State v. Burkhart, 58 S.W.3d 694, 697-98 (Tenn. 2001).
The rule of lenity is related to the doctrine of vagueness and the principle of fair
warning. “The rule of lenity is ‘rooted in fundamental principles of due process which
mandate that no individual be forced to speculate, at peril of indictment, whether his or
her conduct is prohibited.’” State v. Hawkins, 406 S.W.3d 121, 137-138 (Tenn. 2013)
(quoting State v. Marshall, 319 S.W.3d 558, 563 (Tenn. 2010)). Where there is
ambiguity in a statue, the rule of lenity requires the ambiguity to be resolved in favor of
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the defendant. State v. Smith, 436 S.W.3d 751, 768 (Tenn. 2014). The rule of lenity
“reflects not merely a convenient maxim of statutory construction” but is based on
“fundamental principles of due process[.]” Dunn v. United States, 442 U.S. 100, 112
(1979).
A word or phrase is ambiguous if it “can reasonably have more than one
meaning[.]” Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010). A statute is
ambiguous if the language “is susceptible [to] more than one reasonable interpretation[.]”
Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 512 (Tenn. 2001).
Tennessee’s Burglary Statute
Perhaps no common law criminal offense has changed as drastically as burglary
over the decades. At common law, burglary involved breaking and entering a dwelling
place in the night, with the intent to commit a felony. See Davis v. State, 43 Tenn. 77, 80
(Tenn. 1866). Today, a person can commit burglary without having to “break” into
anything. The common law requirement of “breaking” has been replaced by entering
without the owner’s effective consent. See Tenn. Code Ann. § 39-14-402. The property
burglarized no longer has to be a dwelling place, and under modern burglary statutes, the
property burglarized no longer even has to be real property. A person can commit
burglary of a “freight or passenger car, automobile, truck, trailer, boat, airplane or other
motor vehicle.” Tenn. Code Ann. § 39-14-402(a)(4). Burglary no longer has to take
place at night. Burglary is no longer solely an inchoate crime. Pursuant to Tennessee
Code Annotated subsection 39-14-402(a)(3), a person can be convicted of burglary
without having the intent to commit a felony, theft, or assault at the time the person
entered a building.
The crime of burglary is codified at Tennessee Code Annotated section 39-14-402.
Subsection (a), which is the part of the statute relevant to this case, was first enacted in
1989 and was last amended in 1995, and provides:
(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) (2015) (emphasis added).
Certain words and terms in the burglary statute are defined in title 39 of our Code.
“Habitation” is defined as “any structure, including buildings, . . . which is designed or
adapted for the overnight accommodations of persons[.]” Tenn. Code Ann. § 39-14-
401(1)(A) (2015). “Effective consent” is defined in Tennessee Code Annotated
subsection 39-11-106(a)(9) as follows:
(9) “Effective consent” means assent in fact, whether express or apparent,
including assent by one legally authorized to act for another. Consent is not
effective when:
(A) Induced by deception or coercion;
(B) Given by a person the defendant knows is not authorized
to act as an agent;
(C) Given by a person who, by reason of youth, mental
disease or defect, or intoxication, is known by the defendant
to be unable to make reasonable decisions regarding the
subject matter; or
(D) Given solely to detect the commission of an offense[.]
Tenn. Code Ann. § 39-11-106(a)(9) (2015).
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. 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.” Black’s Law Dictionary 115-16 (10th ed. 2014). “Building”
is defined as a “structure with walls and a roof, esp. a permanent structure.” Black’s Law
Dictionary 194-95 (10th ed. 2014).
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Fair Warning and Vagueness of § 39-14-402(a)(3)
Defendant admitted that he entered a building owned by Walmart, knowing that
Walmart had revoked its consent for him to enter onto its property, and committed theft.
Defendant claims that subsection -402(a)(3), is so vague and ambiguous that he was not
provided fair warning that entering a building open to the public without the consent of
the owner and committing theft could amount to burglary.
In support of his fair warning arguments, Defendant relied extensively on a law
journal article by 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 Harwell article”).
Mr. Harwell opined “that the purpose of subsection (a)(3) was an evidentiary one -
- to make it easier to prove the case when a defendant was caught red-handed,” arguing
that “[i]f section (a)(3) was intended to make it easier to prove cases that otherwise would
be brought under section (a)(1), then there is no reason for section (a)(3) to cover a
different set of structures (entry into buildings open to the public) than section (a)(1)
does.” Id. at 111. This argument misses an obvious evidentiary difference between
buildings open to the public and those not open to the public, including habitations. To
convict a defendant of burglary under subsection -402(a)(1), the State must prove that a
defendant entered a building with the intent to commit a felony, theft, or assault. Such
intent in most cases can only be proven by circumstantial evidence. State v. Holland, 860
S.W.2d 53, 59 (Tenn. Crim. App. 1993). Juries can infer intent from the circumstantial
evidence, for example, the manner of entry or the fact that valuables are located in a
building not open to the public or a residence. See State v. Ingram, 986 S.W.2d 598, 600
(Tenn. Crim. App. 1998) (“In the absence of an ‘acceptable excuse,’ a jury may
reasonably and legitimately infer that by breaking and entering a building containing
valuable property, a defendant intends to commit theft.”). If, however, the building is
open to the public, such as a retail store, it would be very unlikely that circumstantial
evidence could establish intent, even if the person entered without the consent of the
property owner. Subsection -402(a)(3) eliminates that evidentiary problem when the
felony, theft, or assault was committed in a building open to the public.
Mr. Harwell next opined that the word “building” in subsection -402(a)(3) “is
merely a shorthand reference” to the phase in subsection -402(a)(1): “building other than
a habitation (or any portion thereof) not open to the public.” Harwell, supra, at 88. This
interpretation of the word building runs contrary to several rules of statutory construction.
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“The overriding purpose of a court in construing a statute is to ascertain and
effectuate the legislative intent, without either expanding or contracting the statute’s
intended scope.” Wallace v. Metro. Gov’t of Nashville, 546 S.W.3d 47, 52-53 (Tenn.
2018). “In seeking to ascertain legislative intent, we must look to the entire statute in
order to avoid any forced or subtle construction of the pertinent language.” Lyons v.
Rasar, 872 S.W.2d 895, 897 (Tenn. 1994). When a statute’s text is unambiguous, “we
need look no further than the language of the statute itself.” Lee Med., Inc., 312 S.W.3d
at 527. “Only an ambiguity in the language of the statute will permit us to look behind its
face to determine the legislature’s intent.” State v. Powers, 101 S.W.3d 383, 393 (Tenn.
2003). “[N]o matter how illuminating [the] non-codified external sources may be, they
cannot provide a basis for departing from clear codified statutory provisions. Id. at 527.
Finally, courts should “refrain from ‘speculating about the significance of provisions
which are not included in [a] statute,’ finding it more effective to ‘consider the words
actually used.’” In re C.K.G., 173 S.W.3d 714, 723 (Tenn. 2005) (alteration in original)
(quoting Fletcher v. State, 951 S.W.2d 378, 382 (Tenn. 1997)). The legislature chose to
use building in subsection -402(a)(3).
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); State v. Pope, 427 S.W.3d 363, 368 (Tenn. 2013). We will
therefore presume that the legislature purposely included the phrase “not open to the
public” in subsection -402(a)(1) and purposely excluded the same phrase from subsection
-402(a)(3). The same presumption outlined in Loden applies to Amicus Curiae’s claim
that, because “other than habitation” applies to section -402(a)(3) without being explicitly
stated, “not open to the public” must also apply. Again, we presume that the legislature
purposely included “other than a habitation” in subsection -402(a)(1) and purposely
excluded “other than a habitation” in subsection -402(a)(3).
Defendant next argues that:
From 1995 to 2015, a period of twenty years, the idea that actions similar to
the [Defendant]’s could sustain a burglary conviction apparently never
occurred to any of the many District Attorneys or Assistant District
Attorneys representing the State of Tennessee. If it did not occur to highly
trained legal professionals prior to 2015, then a person of common
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intelligence could not be deemed to be placed on notice of the potential
consequence.4
We are not persuaded by this argument. Simply because a statute has been
interpreted in a particular way for a period of time does not bar a new interpretation. The
perfect example proving this point is the recent opinion of our supreme court in State v.
Gentry, in which the court held for the first time that the theft of property statute,
Tennessee Code Annotated section 39-14-103, “is broad enough to encompass theft of
real property[.]” State v. Gentry, 538 S.W.3d 413, 426 (Tenn. 2017). In Tennessee, theft
statutes, like burglary statutes, underwent a comprehensive revision in 1989, and our theft
and burglary statutes today are substantially similar to the statutes enacted in 1989. The
defendant in Gentry was indicted in May 2013. Id. at 417. Almost twenty-three years
elapsed before the Shelby County Grand Jury indicted Gentry for theft of real property,
and it took over twenty-six years before our supreme court held that a person could be
convicted for the theft of real property under the theft of property statute. Thus, we
conclude that section 39-14-402(a)(3) does not violate the fair warning doctrine merely
because it has not been consistently applied to the prosecution of burglaries of buildings
open to the public when the owner has effectively revoked its consent for the defendant
to enter the building.
As stated earlier “building” is defined as “a structure with walls and a roof, esp. a
permanent structure.” Black’s Law Dictionary 194-95 (10th ed. 2014). The word
building is not a complex legal term, and we “must give” the word “building” its “natural
and ordinary meaning.” See Lee Med., Inc., 312 S.W.3d at 526. We determine that
“building” in subsection -402(a)(3) is not ambiguous and means a structure with walls
and a roof.
Legislative History
Although we have determined that subsection -402(a) is not vague and that the
word “building” is not ambiguous, we recognize that another panel of this court, in dicta,
apparently believed otherwise, although that opinion was vacated on procedural grounds.
See State v. Danielle Chandria Jensen, No. M2016-01553-CCA-R10-CD, 2017 WL
3671093, at *10 (Tenn. Crim. App. Aug. 25, 2017) (quoting Harwell, supra, at 111-13)
(“[T]he drafters of [subsection -402(a)(3)] did not intend for the statute to be (and,
indeed, did not realize that it might be) interpreted to cover buildings that are open to the
4
Although we have found no opinions of the supreme court or reported or unreported opinions of
this court concerning a burglary conviction based on facts similar to the facts of this case during that
twenty-year time period, this court has no way to determine what ideas occurred to District Attorneys or
Assistant District Attorneys or even if there have been convictions for burglary based on facts similar to
the facts in this case that were never appealed.
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public.”), app. granted, judgment vacated (Tenn. Dec. 8, 2017). For purposes of judicial
efficiency, we will address the arguments of the Amicus Curiae that the legislative history
of the Tennessee burglary statute supports its contention that the Tennessee General
Assembly did not intend to criminalize the entry into a building open to the public and
subsequent commission of a theft or felony.
Legislative History of Texas Burglary Statute
In addition to looking at the plain language of a statute to determine whether the
statute provides fair warning, courts also look to the legislative history of a statute to
determine whether an application of the statute was intended by the legislators. We will
begin by looking at the legislative history of section 39-14-402. The Harwell article
traces the origin of the “current Tennessee burglary statute” to a burglary statute enacted
in Texas. In the mid 1960’s, Texas began a revision of its penal code. According to Mr.
Harwell, on November 3, 1967, the Texas Committee on Revision of the Penal Code met
to discuss a proposed draft of a burglary statute, which contained a section that did not
require intent at the time of entry. Harwell, supra, at 89-90. Subsection 221.1(1)(c) of
the proposed draft stated that a person is guilty of burglary if “he enters or remains
concealed in a building or occupied structure at a time when the building o[r] occupied
structure is not open to the public and the actor is not licensed or privileged to enter or
remain and commits or attempts to commit a felony or theft (THEREIN).” Id. at 90
(emphasis added). Subsections (a) and (b) also contained the “not open to the public”
language. Subsection 221.1(1)(c) ultimately was “denominated” subsection (a)(3). Id. at
94.
In July 1970, “the staff of the [Texas] Penal Code Revision Project sent a
memorandum to the [Texas] State Bar Committee [on Revision of the Penal Code] with a
variety of suggestions regarding different sections of the proposed draft.” Id. at 94.
Concerning the burglary statute, “staff offered two suggestions:” (1) that “without the
owner’s effective consent” be substituted for “without license or privilege” and (2) that
subsection (a)(3) be deleted. Id. Concerning subsection (a)(3), the memorandum stated
that “[i]t is not present Texas law, no other revising state has included it, and the staff
cannot imagine a single example of its application.” Id. The State Bar Committee
accepted the staff’s recommendation substituting “without effective consent” but rejected
the recommendation to delete (a)(3). In October 1970, the State Bar Committee issued its
proposed final draft which included a section on burglary. Id at 94-95. Subsection 30.02
(a) of the draft provided:
(a) An individual or corporation commits burglary if, without the
effective consent of the property owner:
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(1) he enters a habitation, or a building (or any portion of a
building) not open to the public, with intent to commit a felony or
theft; or
(2) he remains concealed, with intent to commit a felony or
theft, in a building or habitation; or
(3) he enters a building or habitation and commits or attempts
to commit a felony or theft.
Id. at 95 (emphasis added).
Concerning subsections (a)(2) and (a)(3) of the burglary statute, the State Bar
Committee offered the following comment:
The concealment feature, Section 30.02(a)(2), is derived from present law,
Penal Code arts. 1389. 1391, and covers, for example, one who, with the
requisite intent, enters a business while it is open to the public and hides
until it closes. Section 30.02(a)(3) includes as burglary the conduct of one
who enters without effective consent but, lacking intent to commit any
crime upon his entry, subsequently forms that intent and commits or
attempts a felony or theft. This provision dispenses with the need to prove
intent at the time of entry when the actor is caught in the act.
Id. at 98.
According to the Harwell article, “[t]here was no explanation, nor indeed any
acknowledgment, of the change between the 1967 proposal and this one[:] the removal of
the specification that section (a)(2) and section (a)(3), like section (a)(1), applied only to
buildings not open to the public.” Id. Also, according to Mr. Harwell:
A bill was introduced into the Texas legislature encompassing a variation
on this proposal. As to burglary, its language was the same as the proposed
language with the exception that section (a)(3) was revised to read “a
habitation, or a building (or any portion of a building) not open to the
public . . . .” This bill died a quick death, however, and was tabled in May
1971, with the legislature instead proposing a committee to “study and
educate the public in the proposed revision of the Texas Penal Code . . . .”
Id. at 99. In 1974, after a period of study, the burglary statute that included section
(a)(3) was enacted. Id.
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Legislative History of Tennessee Burglary Statute
In 1963, the Tennessee Law Revision Commission (“the Commission”) was
created to consider changes in the penal code. The Commission ultimately “settled on
the Proposed Revision of the Texas Penal Code” as the “organizational backbone” of its
Proposed Final Draft which was published in November 1973. Id. at 100. The
Commission’s proposal “copied nearly verbatim, the Comments of the Texas proposal.”
Id. at 101. The criminal code was not, however, revised at that time.
In the 1989, the Tennessee General Assembly enacted “comprehensive penal and
sentencing reform legislation . . . as proposed by the Tennessee Sentencing Commission
[(“the Sentencing Commission”)].” State v. Cummings, 868 S.W.2d 661, 665 (Tenn.
Crim. App. 1992). Included in the reform were new criminal statutes governing
“offenses against property.” Tenn. Code Ann. §§ 39-14-101 to -154. The 1989 version
of section -402 was very similar to the current burglary statute, except the 1989 version
included “habitation” in subsections -402(a)(1),(2), and (3) and did not include “assault”
as an alternative element that can be used to prove burglary. See Tenn. Code Ann. § 39-
14-402 (1989). The 1989 statute was substantially similar to the Texas burglary statute
on which it was modeled.
Attached to the brief of the Amicus Curiae is a document titled “Proposed Revised
Criminal Code” prepared by the Tennessee Sentencing Commission for the 96th General
Assembly which contains several pages of comments. These comments were presented
in 1989 and are not codified in the Sentencing Commission Comments currently included
after section 39-14-402. Defendant and the Amicus Curiae claim that the one of the 1989
proposed comments supports their conclusion that the word “building” in subsection
(a)(3) means a building “not open to the public”:
As in the present law, 5 however, one who, with intent to commit a felony
or theft enters a building open to the public or otherwise has consent to
enter, such as a servant or brother-in-law, commits no burglary and can be
prosecuted only for the commission or attempted commission of the offense
intended, unless the offender remains concealed after consent to his or her
presence has terminated.
Tennessee Sentencing Commission, Proposed Revised Criminal Code (1989), at 156
(emphasis added). Concerning the above comment, the Amicus Curiae argues:
5
The “present law” referred to in the comment was Tennessee Code Annotated sections 39-3-404
(1982) [repealed by Acts of 1989, ch. 591 § 1, effective November 1, 1989]. Under section -39-3-404,
burglary in the third-degree was “the breaking and entering into a business house, outhouse, or any other
house of another, other than a dwelling house, with the intent to commit a felony.”
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[T]he Comment[] indicate[s] that one who enters a ‘building open to the
public,” without the intent to commit an offense, but who later commits a
theft, “commits no burglary” and can only be prosecuted with the
substantive theft offense.
That is not what the hypothetical factual pattern set out in the comment indicates
at all. Under the fact pattern outlined in the comment, we would agree (1) that the person
would not commit burglary under the law in effect before November 1, 1989, because the
person did not break and enter into a building, (2) the person would not commit burglary
under the current subsection 39-14-402(a)(1) because the person entered with consent or
entered a building open to the public, and (3) the person would not commit burglary
under the current subsection 39-14-402(a)(3) because the person did not commit or
attempt to commit a felony, theft, or assault.
On the same page as the above quoted comment, the following comment appears:
Subsection (a)(3) includes as burglary the conduct of one who enters
without effective consent but, lacking intent to commit any crime at the
time of the entry, subsequently forms that intent and commits or attempts a
felony or theft. This provision dispenses with the need to prove intent at
the time of entry.
Id. The fact pattern of this comment provides that a person who commits or attempts a
felony or theft after entering without the consent of the owner commits burglary. The
comment says nothing about the structure being or not being open to the public and
therefore supports our conclusion that the legislature did not intend to define “building”
in section -404(a)(3) as a building that is not open to the public.
Amicus Curiae argues that “[sub]section (a)(3) was apparently intended primarily
to solve an evidentiary problem -- why should it be necessary to prove intent at the time
of entry (which could be hard to establish beyond a reasonable doubt) when the defendant
had gone on to commit the substantive offense?” We agree that this may have been one
of the reasons for the inclusion of subsection (a)(3); however, if it was, nowhere is the
need to “solve an evidentiary problem” greater than when attempting to prove intent to
commit a theft when a person enters a building open to the public. Intent generally has to
be proven by circumstantial evidence, for example the manner of entry. See Hall v. State,
490 S.W.2d 495, 496 (Tenn. 1973) (in the absence of an acceptable excuse, a jury can
infer intent to commit theft based on illegal entry into a residence or a building in which
there is property which is the subject of larceny). It is highly unlikely that walking in the
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front door of a retail store would provide circumstantial evidence of intent to commit a
theft.
The legislature chose to enact a burglary statute containing language that was
substantially similar to subsection (a)(3) of the statute enacted in Texas. We presume
that the legislature was aware of the fact that the Texas State Bar Committee rejected the
recommendation to remove subsection (a)(3) from the final draft of the Texas burglary
statute made by the staff of the Texas Penal Code Revision Project. See Murfreesboro
Med. Clinic, P.A. v. Udom, 166 S.W.3d 674, 683 (Tenn. 2005) (courts presume that the
Tennessee General Assembly knows the state of the law). The legislative history does
not support Defendant’s and Amicus Curiae’s claim that the legislature intended to limit
subsection -402(a)(3) to buildings not open to the public.
Revocation of Consent
Amicus Curiae claims that the owner of a retail store effectively consents to the
entry of individuals previously banned from entering the store if the retail store allows
them to enter, shop, and conduct legitimate transactions. We disagree.
In State v. Ash, 12 S.W.3d 800, 803 (Tenn. Crim. App. 1999), a criminal trespass
case, this court determined that the Clarksville Housing Authority could revoke consent
for Mr. Ash to enter its property, which was open to the public. Tennessee Code
Annotated subsection 39-14-406(c) increases the grade of aggravated criminal trespass
from a Class B misdemeanor to a Class A misdemeanor if a person enters “a building of
any hospital, . . . or public school” without the effective consent of the property owner.
Tenn. Code Ann. § 39-14-406(c) (2015) (emphasis added); see also State v. Lyons, 802
S.W.2d 590, 591 (Tenn. 1990) (defendant convicted of criminal trespass for entering onto
the grounds of a public school). Because the phrase “a building of any hospital”
necessarily includes a building of a public hospital, the aggravated criminal trespass
statute, when read along with Ash, implies that consent to enter a hospital building open
to the public can be revoked. Thus, we conclude that an owner of property, including a
building that is open to the public, can revoke its consent for a person to enter.
We determine that a retail store does not effectively consent to a banned person’s
entry into the store simply because that individual enters the store to carry on a
commercial activity. Failure to detect or to even prosecute a criminal act, criminal
trespass, does not prohibit enforcement or prosecution of subsequent criminal act. A
retail store’s failure to recognize a banned individual who enters its buildings does not
amount to “assent in fact, whether express or apparent,” for the banned individual to enter
the retail store. See Tenn. Code Ann. § 39-11-106(a)(9).
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CONCLUSION
We hold that Tennessee Code Annotated section 39-14-402 is not vague and that
Defendant received fair warning that his conduct constituted burglary pursuant to
Tennessee Code Annotated subsection 39-14-402(a)(3). We affirm the judgments of
conviction.
_________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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