                 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                         AT KNOXVILLE                             FILED
                                   OCTOBER 1994 SESSION
                                                                                    April 16, 1996

                                                                                 Cecil Crowson, Jr.
                                                                                  Appellate Court Clerk
STATE OF TENNESSEE,                       )
                                          )
                 Appellee,                )        No. 03C01-9407-CR-00262
                                          )
                                          )        Sullivan County
v.                                        )
                                          )         Hon. R. Jerry Beck, Judge
                                          )
PHILLIP S. ROBERTS,                       )         (Attempted Theft; Burglary)
                                          )
                 Appellant.               )



                     CONCURRING AND DISSENTING OPINION


                 I concur with the affirmance of the one burglary, the attempted theft and

the possession of burglary instruments convictions. I dissent from the reversal and

dismissal of the remaining three burglary convictions. I believe that the evidence

justifies all of the convictions that the defendant received and that we need not

determine in this case whether State v Anthony, 817 S.W.2d 299 (Tenn. 1991), applies

in any fashion to the offenses of burglary and attempted theft.1 The very fact that not

every attempted car theft involves a burglary -- a point conceded in the majority opinion

-- renders the reasoning in Anthony inapplicable to this case.



                 If we were confronted with a case in which the sole proof for an attempted

theft was the breaking into a car, then it might be worth considering an Anthony due

process analysis -- because, then, every burglary would necessarily prove the crime of

attempt to commit the felony or theft intended. But we are not. In each instance, the


        1
            In any event, contrary to the im plication in the m ajority opinion, I doubt that we can claim that
this court has found that the “Anthony principles” apply in cases not involving kidnapping -- the crim e that
is necessarily proven upon proof of such assaultive crim es as rape or robbery. As for the reference to
State v. Cornelius T. Luster, No. 02C01-9201-CR-00019, Shelby Co. (Tenn. Crim . App. Nov. 29,1992), the
m ajority opinion fails to note that the lead opinion’s application of Anthony apparently did not gain the
support of the other two m em bers of the panel, one concurring in results only and the other expressly
rejecting the use of Anthony.
defendant committed acts inside the cars that were unrelated to the breaking and

entering, but were evidence of attempted thefts. I would hold that the separate

convictions are justified.



                                        Joseph M. Tipton, Judge




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