             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                             FEBRUARY 1999 SESSION
                                                         FILED
                                                            April 13, 1999

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,                  )
                                     )    C.C.A. NO. 02C01-9804-CR-00109
             Appellee,               )
                                     )    SHELBY COUNTY
VS.                                  )
                                     )    HON. JOSEPH B. DAILEY,
ANTHONY BONAM,                       )    JUDGE
                                     )
             Appellant.              )    (Burglary of a Motor Vehicle)



FOR THE APPELLANT:                        FOR THE APPELLEE:


A C WHARTON                               JOHN KNOX WALKUP
District Public Defender                  Attorney General & Reporter

WALKER GWINN                              ELIZABETH T. RYAN
Asst. Public Defender                     Asst. Attorney General
       (On Appeal)                        John Sevier Bldg.
                                          425 Fifth Ave., North
BYRON WINSETT                             Nashville, TN 37243-0493
       -and-
DIANNE THACKERY                           WILLIAM L. GIBBONS
Asst. Public Defenders                    District Attorney General
201 Poplar Ave., Suite 201
Memphis, TN 38103                         JAMES LAMMEY
       (At Trial)                                -and-
                                          JERRY HARRIS
                                          Asst. District Attorneys General
                                          201 Poplar Ave., Suite 301
                                          Memphis, TN 38103



OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



              The defendant was convicted of burglary of a motor vehicle and sentenced

as a Range III persistent offender to serve five years in the Department of Correction.

He now appeals, arguing that he was denied due process of law and a trial by jury

because the trial court instructed the jury with what he appears to claim is a mandatory

presumption on the issue of intent. Finding no merit to the defendant’s argument, we

affirm his conviction and sentence.



              The trial evidence established that an off-duty police officer moonlighting

as a security guard at a Memphis bus station observed the defendant peering into cars

parked in a parking lot across the street. Inconspicuously situated in the parking lot, a

parking lot attendant also observed the defendant’s suspicious behavior. Both the

security guard and the parking lot attendant witnessed the defendant look around as if

to determine whether he was being observed, throw a brick or rock through the side

window of a Suburban, open the Suburban’s door, and climb into the vehicle. The

security guard radioed for help while the parking lot attendant trapped the defendant by

blocking the passenger side doors with his vehicle and manually holding shut the door

on the driver’s side where the defendant was sitting. According to the parking lot

attendant, the defendant could not move inside the Suburban because he had a

television set on his lap.



              The owner of the Suburban, an Alabama judge, testified that her suitcase

and a combination TV/VCR that was covered by a sleeping bag were in the rear cargo

area of her Suburban when she parked in the parking lot. After the defendant broke into

her vehicle, however, she found her television in the back seat and the contents of her



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suitcase scattered throughout the vehicle. She testified she did not give the defendant

permission to enter her Suburban or remove items from it.



              The trial transcript does not contain the charge as read to the jury. As this

Court has previously admonished, a transcription of the jury charge as read to the jury is

generally necessary to facilitate full appellate review of jury instruction issues. See, e.g.,

State v. Richard T. Smiley, No. 03C01-9707-CR-00305, Blount County (Tenn. Crim. App.

filed October 6, 1998, at Knoxville). This is especially true in this case, as Volume III of

the record begins with a document filed by the State requesting “the attached special jury

instructions be given by the Court to the jury,” referring at least in part to the instruction

challenged in this case. The State’s request does not reflect whether it was granted or

denied. Immediately following the request are fourteen pages of jury instructions,

including the instruction challenged here. Without further explanation (Volume III of the

record does not contain a table of contents), it is unclear to this Court whether the

fourteen pages of instructions are the attachments to the State’s request for special jury

instructions or whether the instructions are actually the full charge as supposedly read to

the jury.



              Of course, this confusion could have been prevented had either party simply

requested transcription of the jury charge as read to the jury. Nonetheless, both parties

appear to agree that the fourteen pages of instructions following the State’s request for

special instructions are representative of the charge as read to the jury. In order to

dispose of the defendant’s appeal on the merits, we will base our decision on the fourteen

pages of jury instructions as if it were the jury charge as read to the jury.



              The written instructions reflect the jury was told that in order to find the



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defendant guilty of burglary in this case, the State must have proven beyond a

reasonable doubt all elements of burglary, including intent to commit a theft. With regard

to intent, the charge reads,

              In order to establish that the defendant entered the automobile with
       the intent to commit theft, specific substantive proof of said intent is not
       required. Intent to commit theft may be inferred from the actual breaking
       and entering of an automobile which contains things of value.

Later in the charge, it was reiterated that the State must prove every element beyond a

reasonable doubt.



              The defendant challenges the portion of the jury charge that instructs the

jury that “specific substantive proof” of intent is not required and that it may infer intent.

According to the defendant, reasonable jurors might interpret this portion of the charge

to mean that the State did not need to prove intent in order to secure a conviction and

that the burden of persuasion was shifted to the defendant. The defendant argues that

reversible error thus resulted because the trial court did not give further clarifying

instructions that the burden had not shifted and that the jurors need not apply the

inference.



              A challenge to a single jury instruction must be judged in context of the

entire jury charge. See, e.g., Cupp v. Naughten, 414 U.S. 141, 146-147 (1973); State v.

Bolin, 678 S.W.2d 40, 43 (Tenn. 1984). In determining the constitutionality of a jury

instruction regarding a legal inference, the threshold inquiry is to determine whether the

instruction creates a mandatory presumption or a permissive inference. Bolin, 678

S.W.2d at 42 (citing Sandstrom v. Montana, 442 U.S. 510 (1979)). A mandatory

presumption requires the trier of fact to presume a certain fact unless the defendant can

submit evidence to rebut the presumption, while a permissive inference allows, but does

not require, the trier of fact to infer a fact from the State’s proof without placing any


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burden on the defendant. Bolin, 678 S.W.2d at 42 (citing Ulster County Court v. Allen,

442 U.S. 140 (1979)).       Distinguishing between a mandatory presumption and a

permissive inference requires careful attention to the specific language of the jury

instruction and the manner in which a reasonable juror could have interpreted the

instruction. Bolin, 678 S.W.2d at 42 (citing Sandstrom, 442 U.S. at 514).



              In this case, the challenged jury instruction contained the word “may,” which

itself conveyed the permissive rather than mandatory nature of the inference. Cf. State

v. Merriweather, 625 S.W.2d 256 (Tenn. 1981)(use of word “shall” could have led jury to

conclude that burden of proof shifted to defendant); State v. Bryant, 585 S.W.2d 586

(Tenn. 1979)(same). The jury charge as a whole explained to the jury that the State had

the burden of proving every element of burglary, including intent, but to err on the side

of caution, the trial court could have reiterated to the jury that it was not required to apply

the inference. See Merriweather, 625 S.W.2d at 258; Bryant, 585 S.W.2d at 590. Even

without further clarifying instructions, however, the challenged instruction did not

constitute error because “no reasonable jury could have interpreted the challenged

instruction as mandatory or conclusive or as shifting to the defendant the burden of

persuasion” on the element of intent. Bolin, 678 S.W.2d at 44.



              Even if, as the defendant contends, the challenged instruction was

unconstitutional, the jury instruction was harmless in this case. See Adkins v. State, 911

S.W.2d 334, 344 (Tenn. Crim. App. 1994)(citing Rose v. Clark, 478 U.S. 570, 582

(1986))(stating that Sandstrom challenges are subject to harmless error analysis). The

record reveals that the defendant looked around the parking lot in a suspicious manner

before he forcefully broke a window to gain access to the Suburban, even though he did

not have permission to enter the Suburban. Once inside the vehicle, the defendant



                                              5
retrieved a combination TV/VCR that was covered with a sleeping bag in the rear cargo

area and placed it on his lap. The contents of the victim’s suitcase, which was also in the

rear cargo area, were found scattered throughout the vehicle. This is ample proof the

defendant intended to steal items from the Suburban. Thus, any error is harmless, which

precludes reversal on this basis. Tenn. R. Crim. P. 52(a). The defendant’s conviction

and sentence are affirmed.



                                                 _______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



_________________________________
JOE G. RILEY, Judge



_________________________________
JAMES C. BEASLEY, JR., Special Judge




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