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
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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.
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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
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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 .
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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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