State v. Langford

                IN THE SUPREME COURT OF TENNESSEE
                            AT JACKSON


         FILED
            June 1, 1999
                                      FOR PUBLICATION
         Cecil Crowson, Jr.
        Appellate Court Clerk         Filed:       June 1, 1999




STATE OF TENNESSEE,             )
                                )
      PLAINTIFF/APPELLEE,       )     SHELBY CRIMINAL
                                )
v.                              )     Hon. Arthur T. Bennett, Judge
                                )
GEORGE LANGFORD,                )     No. 02S01-9806-CR-00061
                                )
      DEFENDANT/APPELLANT.      )




FOR DEFENDANT/APPELLANT:        FOR PLAINTIFF/APPELLEE:

W. MARK WARD                    JOHN KNOX WALKUP
Assistant Shelby County         Attorney General & Reporter
Public Defender
Memphis                         MICHAEL E. MOORE
                                Solicitor General
A. C. WHARTON, JR.
Shelby County Public Defender   ELIZABETH T. RYAN
Memphis                         Assistant Attorney General
                                Nashville




                           OPINION



AFFIRMED                                                     HOLDER, J.
                                       OPINION



       We granted this appeal to decide whether: (1) the evidence was sufficient

to convict the defendant of aggravated burglary and felony murder committed

during the perpetration of an aggravated burglary; and (2) the trial court erred in

failing to instruct the jury as to criminal trespass. We hold that the evidence was

sufficient to convict the defendant and that the trial court did not err in failing to

instruct the jury on criminal trespass. Accordingly, the judgment of the Court of

Criminal Appeals affirming the defendant’s convictions is affirmed.



                                   BACKGROUND



       In the early morning hours of April 10, 1995, the defendant George

Langford, accompanied by his brother and two friends, went to the duplex of his

girlfriend, Diana Wilson. The defendant had previously lived at the duplex with

Ms. Wilson but had been in Mississippi for the last two or three weeks. When

the defendant asked to enter the duplex to get his clothes and see his children,

Ms. Wilson refused. Suspecting that Ms. Wilson had a male visitor, the

defendant became angry, took his brother’s gun, and fired a shot through the

living room window, narrowly missing Ms. Wilson who was sitting on the couch.



       At the defendant’s urging, one of his friends kicked in the front door.

Ms. Wilson grabbed her 10-month-old son and hid in her bedroom closet with

15-year-old Tamara Gayles, who was visiting. Everyone else in the duplex fled

out a back window. The defendant went into the bedroom looking for Ms. Wilson

and shot two or three times into the closet where she was hiding. A bullet struck

Ms. Gayles in the temple and killed her. When Ms. Wilson told the defendant he

had shot Ms. Gayles, he replied that he “didn’t give a f---.” The defendant


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testified at trial that the gun discharged accidentally, both when he used it to

break the living room window and when he pushed the closet doors out of the

way.



       A jury convicted the defendant of first degree felony murder committed in

the perpetration of an aggravated burglary for which he received a sentence of

life without the possibility of parole. He was also convicted of aggravated

burglary, aggravated assault, and reckless endangerment for which he received

sentences of four years, five years, and two years, respectively. These latter

three sentences were ordered to run concurrently with each other and

consecutively to the life sentence. The Court of Criminal Appeals upheld the

convictions and sentences.



                                       ANALYSIS

                           Sufficiency of the Evidence



       The defendant claims that the evidence was insufficient to convict him of

aggravated burglary and consequently of felony murder committed in the

perpetration of an aggravated burglary because the State failed to show that the

duplex was not the defendant’s home or residence and that he had no “lawful

possession.” The defendant argues that because he and Ms. Wilson had been

living together in the duplex, he was a co-possessor and therefore could not be

guilty of burglarizing the premises.



       When the sufficiency of the evidence is challenged, the standard for

review is whether, after considering the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99


                                          3
S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Duncan, 698 S.W.2d 63, 67

(Tenn. 1985). The State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn from it. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A conviction that is approved by

the trial court accredits the testimony that favors the State and resolves all

conflicts in favor of the State's theory. State v. Williams, 657 S.W.2d 405, 410

(Tenn. 1983). Likewise, determinations of the weight and credibility of the

testimony of witnesses and reconciliation of conflicts in that testimony are

entrusted exclusively to the jury as the trier of fact. State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984); Byrge v. State, 575 S.W.2d 292, 295 (Tenn.

Crim. App. 1978).



       Aggravated burglary occurs when an individual enters a habitation

“without the effective consent of the property owner” and, in this case, intends to

commit a felony, aggravated assault. Tenn. Code Ann. §§ 39-14-402, -403

(1991). At the time of the offense, felony murder was defined as “a reckless

killing of another committed in the perpetration of, or attempt to perpetrate

any . . . burglary.” Tenn. Code Ann. § 39-13-202 (1991).



       Prior to the 1989 revision of the criminal code, burglary was defined as the

“breaking and entering of a dwelling house . . . used and occupied by any person

. . . as a dwelling place or lodging either permanently or temporarily and whether

as owner, renter, tenant, lessee, or paying guest, by night, with intent to commit

a felony.” Tenn. Code Ann. § 39-3-401 (repealed) (emphasis added). Pre-1989

opinions stressed that burglary was an offense against the occupancy and

possession and not against legal title. See e.g. Hindman v. State, 384 S.W.2d

18 (Tenn. 1964); Hobby v. State, 480 S.W.2d 554 (Tenn. Crim. App. 1972). The

definition of burglary changed when the criminal code was rewritten. Now the


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plain language of aggravated burglary requires proof that an individual enters a

habitation “without the effective consent of the property owner” and intends to

commit a felony, or attempts or commits a felony. Tenn. Code Ann.

§§ 39-14-402, -403. “Habitation” is a structure that is adapted or designed for

overnight accommodation. Tenn. Code Ann. § 39-14-401(1). There is no longer

a requirement that the structure be occupied. The focus is on whether the

property owner consented to the entry and the defendant’s purpose for entering.

The code defines property “owner” as the “person in lawful possession of

property, whether the possession is actual or constructive.” Tenn. Code Ann.

§ 39-14-401(3).



       The evidence in this case clearly establishes that Ms. Wilson was the

“person in lawful possession” of the property. Ms. Wilson rented the duplex,

and her name was the only name on the lease. The defendant, on the other

hand, had no possessory interest in the duplex and no right to be inside the

duplex absent Ms. Wilson’s consent. Although she had previously permitted the

defendant to stay with her, she still retained the right to prevent the defendant

from entering her abode. Immediately prior to the offense, Ms. Wilson refused

him entry. Accordingly, we hold that only Ms. Wilson was in “lawful possession”

of the property.



       We hold that the evidence was sufficient for a rational trier of fact to find

that the defendant entered the duplex without the effective consent of the owner,

Ms. Wilson, and that the defendant possessed the intent to commit the felony of

aggravated assault. We further hold that the evidence was sufficient for a

rational trier of fact to find that the defendant committed a reckless killing of

Tamara Gayles while committing the aggravated burglary.




                                          5
                      Jury Instruction on Criminal Trespass



       The defendant next complains that the court erred by refusing to instruct

the jury on the charge of criminal trespass, which he alleges is a lesser offense

of aggravated burglary. The defendant argues that the evidence presented at

trial would have supported a conviction for criminal trespass. We disagree.



       While it is generally error for a trial court not to instruct the jury on all

lesser included offenses, see Tenn. Code Ann. § 40-18-110(a), this Court has

interpreted this statutory provision to mean that a trial court must instruct the jury

on all lesser included offenses if the evidence introduced at trial is legally

sufficient to support a conviction for the lesser offense. State v. Bolden, 979

S.W.2d 587, 593 (Tenn. 1998). Failure to instruct is not error where the record

clearly shows that the defendant was guilty of the greater offense and the record

is devoid of any evidence permitting an inference of guilt of the lesser offense.

State v. Stephenson, 878 S.W.2d 530, 550 (Tenn. 1994) (record devoid of

evidence to support an inference that the defendant was guilty of lesser offenses

of voluntary manslaughter and criminally negligent homicide); State v. Boyd, 797

S.W.2d 589, 593 (Tenn. 1990); State v. King, 718 S.W.2d 241, 245 (Tenn. 1986)

(record devoid of any evidence permitting an inference of guilt of any charge

lesser than the felony murder with which he was charged). See also State v.

Vann, 976 S.W.2d 93, 101 (Tenn. 1998) (record devoid of evidence supporting a

charge on the offenses of second degree murder and facilitation).



       Criminal trespass is committed when a person enters or remains on the

property without the owner’s effective consent. Tenn. Code Ann. § 39-14-405.

One commits aggravated burglary by entering a habitation without the owner’s

effective consent and with the intent to commit a felony, in this case, aggravated


                                            6
assault.1 Tenn. Code Ann. §§ 39-14-402, -403 (1991). The key distinction

between the offense of aggravated burglary and criminal trespass is that

aggravated burglary requires a showing of intent to commit a felony.



         The evidence clearly establishes that the defendant not only intended to

commit a felony on the premises, he did commit a felony. By his own testimony,

the defendant was upset and jealous. He repeatedly asked whether Ms. Wilson

had another man inside the house. The defendant shot at Ms. Wilson through

the living room window. The evidence is uncontroverted that Ms. Wilson feared

imminent injury when she fled with her child and Ms. Gayles to a bedroom closet

after the defendant shot through the window and forcibly gained access to the

interior of her house. The defendant admitted to displaying a weapon. The

defendant shot Ms. Gayles as she hid inside the closet. Thus, the defendant not

only intended to, he did commit a felony inside the house after he was denied

entrance by the owner, Ms. Wilson. Accordingly, the evidence supported the

greater offense, and the record was devoid of evidence supporting the lesser

charge of criminal trespass. The trial court was correct in not instructing the jury

as to criminal trespass. This issue is without merit.



                                            CONCLUSION



         We hold that the evidence was sufficient to support the charges of

aggravated burglary and felony murder committed in the perpetration of

aggravated burglary and the trial court did not err in failing to instruct the jury as

to criminal trespass. Accordingly, we affirm the decision of the Court of Criminal




         1
         Agg rava ted a ssa ult oc curs whe n the defe nda nt us ing a w eap on int entio nally or kno wing ly
cause s anoth er to reas onably fea r imm inent bod ily injury. Tenn. C ode An n. §§ 39-13-1 01, -102 .

                                                      7
Appeals. It appearing that the defendant is indigent, costs of this appeal shall be

taxed to the State.




                                         JANICE M. HOLDER, JUSTICE



Concurring:

Anderson, C.J.
Drowota, Birch, and Barker, J.J.




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