         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                       DECEMBER 1997 SESSION
                                                      FILED
                                                       January 7, 1998

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,                 )                 Appellate C ourt Clerk
                                    )    NO. 02C01-9610-CR-00371
      Appellee,                     )
                                    )    SHELBY COUNTY
VS.                                 )
                                    )    HON. ARTHUR T. BENNETT,
TRACEY E. STIGALL,                  )    JUDGE
                                    )
      Appellant.                    )    (Aggravated Burglary)



FOR THE APPELLANT:                       FOR THE APPELLEE:

A. C. WHARTON, JR.                       JOHN KNOX WALKUP
Shelby County Public Defender            Attorney General and Reporter

TIMOTHY J. ALBERS (Trial)                SARAH M. BRANCH
Assistant Public Defender                Assistant Attorney General
201 Poplar, Ste. 201                     Cordell Hull Building, 2nd Floor
Memphis, TN 38103                        425 Fifth Avenue North
                                         Nashville, TN 37243-0493

EDWARD G. THOMPSON (Appeal)              WILLIAM L. GIBBONS
Assistant Public Defender                District Attorney General
212 Adams Avenue
Memphis, TN 38103                        DAVID B. SHAPIRO
                                         Assistant District Attorney General
                                         201 Poplar Avenue, Ste. 301
                                         Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                   OPINION


       Defendant, Tracey E. Stigall, was convicted by a Shelby County jury of the

offense of aggravated burglary. The sole issue in this direct appeal is whether the

trial court erred in failing to charge lesser offenses. We AFFIRM the judgment of

the trial court.



                                       FACTS



       Although the defendant does not challenge the sufficiency of the evidence,

a review of the facts is necessary in order to determine whether the trial court erred

in failing to charge any lesser offenses.

       On January 26, 1995, between 6:00 p.m. and 7:00 p.m., thirteen-year old

Cephes Jones was alone watching television in the upstairs bedroom of his

mother’s apartment. He heard knocking at the front door and then heard the mail

slot in the door being raised and lowered. This was followed by the sound of

breaking glass. Although he ran downstairs and looked outside, he was unable to

see anyone.

       Approximately five minutes later, he heard more knocking on the glass. He

took refuge in a closet and, utilizing a cordless phone, telephoned his grandmother.

His grandmother notified the police.

       The police responded immediately and found the defendant leaving the

porch area of the apartment. Defendant, who lived nearby, advised the officer that

he was just returning from a store.

       The officer discovered that the apartment window had been broken and

observed that the defendant’s hand was bleeding from a fresh injury. There were

bits of glass on the inside of defendant’s hands as well as on his coat.

       Shattered glass was found both inside and outside the apartment. The

broken window had been unlatched, and a Coke can was found under a couch

which was directly below the window.




                                            2
                                TRIAL PROCEDURE



       All testimony was presented by state witnesses. The defendant offered no

proof. There were no requests that the jury be charged with regard to lesser

offenses, and the trial judge submitted only the indicted charge of aggravated

burglary. Upon completion of the jury charge, there were no objections nor were

any additional instructions requested. The issue of lesser offenses was raised for

the first time in defendant’s motion for new trial when he argued that the lesser

offense of criminal trespass should have been charged.



                                     ANALYSIS



       Defendant contends the trial court committed reversible error by failing to

charge the lesser offenses of criminal trespass and attempted aggravated burglary.

The state contends there is no evidence to support criminal trespass. Further, the

state argues that this was a completed burglary, thereby making a charge on

criminal attempt unnecessary. We find that the trial court did not err in failing to

charge these lesser offenses.

                                A. Failure to Object

       We note that the defendant failed to request a charge on lesser offenses and

further failed to object to this omission after the jury charge. Tenn. R. Crim. P. 30(b)

provides that the parties are to be given an opportunity to object to the content of

jury instructions or the failure to give requested instructions; however, the failure to

make objections in these instances does not prohibit their being used as grounds

in the motion for new trial. State v. Lynn, 924 S.W.2d 892, 898-899 (Tenn. 1996).

However, alleged omissions in the jury charge must be called to the trial judge’s

attention at trial or be regarded as waived. State v. Haynes, 720 S.W.2d 76, 84-85

(Tenn. Crim. App. 1986). In contrast to an erroneous instruction or the failure to

give a requested instruction, defense counsel cannot sit on an objection to an

omitted charge and allege it as a ground in the motion for new trial. State v.


                                           3
Deborah Gladish, C.C.A. No. 02C01-9404-CC-00070, McNairy County (Tenn. Crim.

App. filed November 21, 1995, at Jackson), perm. to app. denied (Tenn. May 6,

1996). The issue is waived.

        We, nevertheless, have the authority to address the failure to charge

appropriate lesser offenses as plain error. Tenn. R. Crim. P. 52(b). However, for

reasons stated hereafter, we find no plain error.

                          B. Specificity of Motion for New Trial

        Defendant’s motion for new trial did not recite which lesser offenses should

have been charged and merely cited the case of State v. Vance, 888 S.W.2d 776

(Tenn. Crim. App. 1994). Vance held that criminal trespass was a lesser offense

of aggravated burglary and did not discuss attempted aggravated burglary. Id. at

779. Furthermore, at the motion for new trial defense counsel argued that criminal

trespass should have been charged as a lesser offense but did not argue that

attempted aggravated burglary should have been charged.

        Tenn. R. App. P. 3(e) requires that issues in a motion for new trial must be

“specifically stated... otherwise such issues will be treated as waived.” Where the

motion does not advise the trial court of the basis of the irregularity, the issue should

not be considered by the trial court or by this Court on appeal. State v. Gauldin, 737

S.W.2d 795, 798 (Tenn. Crim. App. 1987). Since the defendant never brought to

the attention of the trial court that attempted aggravated burglary should have been

charged as a lesser offense, that issue is further waived on this basis. 1

                      C. Evidence Supporting Criminal Trespass

        We recognize the responsibility of the trial court to instruct on lesser offenses

whether requested to do so or not. Johnson v. State, 531 S.W.2d 558, 559 (Tenn.



        1
           W e do not find plain error in the failure to charge attempted aggravated burglary. The
undisputed evidence indicated that the perpetrator of this offense opened and closed the mail slot on
the door, broke out the windo w using a Coke can an d his han d, and un latched th e window lock. A
person who, without the effective consent of the property owner, enters a habitation (or any portion
thereof) not open to the pub lic with the intent to commit theft commits the offense of aggravated
burg lary. Tenn. Code Ann. § 39-14-402(a)(1) and 403(a). Unlike the crim inal trespass statute, the
burglary statute provides that the word “enter” mea ns th e “[i]ntrusion of any part of the body; or
[i]ntrusion of any object in physical contact with the body...” Tenn. Code Ann. § 39-14-402(b)(1) and
(2). Since the undisputed proof showed that the perpetrator completed the offense of aggravated
burglary by the intrusion of his hand to unlock the window, the trial court did not commit plain error in
failing to cha rge attem pted agg ravated burglary.



                                                  4
1975). However, the trial court is required to instruct on lesser offenses only when

the evidence would support a conviction for the lesser offenses. State v. Trusty,

919 S.W.2d 305, 311 (Tenn. 1996). Criminal trespass is a lesser grade offense of

aggravated burglary. See Trusty at 311; State v. Curtis Smith, C.C.A. No. 02C01-

9602-CR-00051, Shelby County (Tenn. Crim. App. filed June 3, 1997, at Jackson).

It should be charged under the appropriate facts. State v. Vance, 888 S.W.2d at

779. We will now determine if the court committed plain error in failing to charge

criminal trespass.

       A person who “enters or remains” on the property of another knowing that he

or she does not have the owner’s effective consent commits a criminal trespass.

Tenn. Code Ann. § 39-14-405(a).     The word “enter” is defined as an “intrusion of

the entire body.” Tenn. Code Ann. § 39-14-405(c). The record in this case is

devoid of any evidence indicating that the defendant entered the property with his

“entire body.”   Therefore, a charge on criminal trespass would have been

inappropriate.



                                  CONCLUSION



      For the foregoing reasons, we affirm the judgment of the trial court.




                                         JOE G. RILEY, JUDGE




CONCUR:




JERRY L. SMITH, JUDGE




CURWOOD WITT, JUDGE

                                         5
