                                                                                            07/02/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  May 29, 2019 Session

        STATE OF TENNESSEE v. LARRY CHARLES HEFNER, JR.

                  Appeal from the Criminal Court for Knox County
                       No. 111177 Bobby R. McGee, Judge
                     ___________________________________

                            No. E2018-01164-CCA-R3-CD
                        ___________________________________

Defendant, Larry Charles Hefner, Jr., was convicted following a jury trial of Class D
felony burglary. The trial court sentenced Defendant as a career offender to twelve years
to be served on community corrections. On appeal, Defendant claims that “burglary is
applicable only to entry into buildings ‘not open to the public,’” that the trial court failed
to instruct the jury on the lesser included offense of attempted theft, and that the trial
court failed to properly instruct the jury as to the elements of burglary. After a thorough
review of the record, the briefs, and applicable law, we affirm the judgment of
conviction.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.

Mark E. Stephens, District Public Defender, Jonathan Harwell, Assistant Public
Defender, for the appellant, Larry Charles Hefner, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Charme Allen, District Attorney General; and Ta Kisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                   PROCEDURAL AND FACTUAL BACKGROUND

                                       The Indictment

       The Knox County Grand Jury indicted Defendant for one count of Class D felony
burglary. The indictment alleged that Defendant “did unlawfully and knowingly enter a
building without the effective consent of the owner, Walmart, and did attempt to commit
a theft, in violation of T[ennessee] C[ode] A[nnotated] [section] 39-14-402[.]1”

                                    January 8, 2018 Jury Trial

       Steve Smartt, a Walmart asset protection associate, encountered Defendant on
April 13, 2017, at the Walmart on Clinton Highway in Knoxville. Mr. Smartt observed
Defendant select five pairs of scrubs, conceal them in his pants, and proceed to the exit.
Mr. Smartt and another Walmart employee confronted Defendant and escorted him to an
office where Defendant removed the scrubs from his pants and placed them on a counter.
Mr. Smartt checked Defendant’s name with Walmart’s shoplifter database, determined
that he had been caught shoplifting on several previous occasions, and contacted the
Knoxville Police Department (KPD). Mr. Smartt identified a “Notification of Restriction
from Property” (“the first notification”) that Defendant had signed and acknowledged
receiving on January 22, 2010. The first notification, which was entered as Exhibit 2,
provided:

       Walmart can prohibit individuals from entering its property who interfere
       with its business, shoplift, destroy property, or otherwise behave in a
       manner that is unacceptable to Walmart. Walmart has determined you have
       engaged in conduct sufficient to necessitate limiting your access to
       Walmart property. This document constitutes formal notice and warning
       that you are no longer allowed on Walmart property or in any area subject
       to Walmart’s control. This restriction on entry includes, but is not limited
       to, all Walmart retail locations. Should you elect to ignore this notice and
       enter Walmart property, Walmart may contact law enforcement and request
       you be charged with criminal trespass.

The “Acknowledgement of Receipt” section of the first notification provided:

       I have read and understand this notice or, in the alternative have had it read
       to me and understand and acknowledge that as of 22 day of January,
       2010[,] I am prohibited from entering Walmart property. I understand this
       notice will remain in effect until Walmart rescinds it.

       Mr. Smartt testified that Defendant did not have permission to enter the Walmart
store or to conceal merchandise in his pants. On cross-examination, Mr. Smartt agreed
that there was no way he could determine how many times Defendant had entered and

       1
          We use “Walmart” in this opinion to identify the corporation and stores. The actual corporate
entity is Walmart, Inc.
                                                 -2-
shopped in Walmart stores since January 22, 2010, and that the notification did not
mention the word “burglary.” He stated that the scrubs that Defendant concealed in his
pants were valued at $76.60.

       John Lombardi, a current employee at the U.T. Commons Walmart, testified that
he had previously worked at the East Town Walmart, where he observed Defendant
inside the store on April 7, 2015. When Defendant went outside, Mr. Lombardi
confronted Defendant, identified who he was, and asked Defendant to come with him.
Defendant ran and left the scene.

       Steven Roberts, a loss prevention associate at the East Town Walmart in
Knoxville, testified that he encountered Defendant on October 24, 2016. He told
Defendant that he did not have permission to enter the Walmart store and that he was
trespassing. Mr. Roberts contacted the Knoxville Police Department (KPD), an officer
responded, and Defendant was arrested. A “Notification of Restriction from Property”
(“the second notification”) dated October 24, 2016, was entered as Exhibit 1. Mr.
Roberts’ signature was witnessed by a KPD officer. Defendant, who according to Mr.
Roberts was handcuffed, did not sign the second notification.

       Defendant presented no proof.

        The jury found Defendant guilty, and after a sentencing hearing, the trial court
determined Defendant was a career offender and sentenced him to twelve years to be
served on community corrections. The trial court denied Defendant’s motion for new
trial, and Defendant timely filed his notice of appeal.

                                       ANALYSIS

       On appeal, Defendant claims that “burglary is applicable only to entry into
buildings ‘not open to the public,’” that the trial court failed to instruct the jury on the
lesser included offense of attempted theft, and that the trial court failed to properly
instruct the jury as to the elements of burglary. The State argues that the burglary
conviction was lawful and that the trial court did not commit plain error in charging the
jury. We agree with the State.

                        Interpretation of section 39-14-402(a)(3)

       Defendant argues that section 39-14-402(a)(3) is ambiguous and should be
construed to apply only to buildings “not open to the public” under the rule of lenity.
Defendant asserts that the legislature simply omitted “not open to the public” in -

                                           -3-
402(a)(3) because the language was “repetitive” and that in “the context” of -402(a) it
was implied that the statute only applied to buildings open to the public.

        “The overriding purpose of a court in construing a statute is to ascertain and
effectuate the legislative intent, without either expanding or contracting the statute’s
intended scope.” Wallace v. Metro. Gov’t of Nashville, 546 S.W.3d 47, 52-53 (Tenn.
2018). “In seeking to ascertain legislative intent, we must look to the entire statute in
order to avoid any forced or subtle construction of the pertinent language.” Lyons v.
Rasar, 872 S.W.2d 895, 897 (Tenn. 1994). When a statute’s text is unambiguous, “we
need look no further than the language of the statute itself.” Lee Med., Inc. v. Beecher,
312 S.W.3d 515, 527 (Tenn. 2010). “Only an ambiguity in the language of the statute
will permit us to look behind its face to determine the legislature’s intent.” State v.
Powers, 101 S.W.3d 383, 393 (Tenn. 2003). Courts should “refrain from ‘speculating
about the significance of provisions which are not included in [a] statute,’ finding it more
effective to ‘consider the words actually used.’” In re C.K.G., 173 S.W.3d 714, 723
(Tenn. 2005) (alteration in original) (quoting Fletcher v. State, 951 S.W.2d 378, 382
(Tenn. 1997)). “[W]here the legislature includes particular language in one section of a
statute but omits it in another section of the same act, it is generally presumed that the
legislature acted purposefully in the subject included or excluded.” State v. Loden, 920
S.W.2d 261, 265 (Tenn. Crim. App. 1995); State v. Pope, 427 S.W.3d 363, 368 (Tenn.
2013). Issues of statutory construction are questions of law, and our review for questions
of law is de novo. Seals v. H & F, Inc., 301 S.W.3d 237, 242 (Tenn. 2010).

       In United States v. Harriss, 347 U.S. 612, 617, (1954), the United States Supreme
Court characterized the fair notice principle as follows:

       The constitutional requirement of definiteness is violated by a criminal
       statute that fails to give a person of ordinary intelligence fair notice that his
       contemplated conduct is forbidden by the statute. The underlying principle
       is that no man shall be held criminally responsible for conduct which he
       could not reasonably understand to be proscribed.

       A criminal statute “must give fair warning of the conduct that it makes a crime[.]”
Bouie v. City of Columbia, 378 U.S. 347, 350-51 (1964). The doctrine of fair warning is
closely linked to the doctrine of vagueness. “The primary purpose of the vagueness
doctrine is to ensure that our statutes provide fair warning as to the nature of forbidden
conduct so that individuals are not ‘held criminally responsible for conduct which [they]
could not reasonably understand to be proscribed.’” State v. Crank, 468 S.W.3d 15, 22-
23 (Tenn. 2015) (alteration in original) (quoting Harriss, 347 U.S. at 617).



                                             -4-
      The Tennessee Supreme Court, in a case involving a statute proscribing gambling
devices, stated the following about fair warning:

       A statute may be void for vagueness if it is not “sufficiently precise to put
       an individual on notice of prohibited activities.” A criminal statute must be
       construed according to the fair import of its terms when determining if it is
       vague. Due process requires that a statute provide “fair warning” and
       prohibits holding an individual criminally liable for conduct that a person
       of common intelligence would not have reasonably understood to be
       proscribed. The fair warning requirement, however, does not demand
       absolute precision in the drafting of criminal statutes. . . . In fact, it is the
       duty of the courts “to adopt a construction which will sustain a statute and
       avoid constitutional conflict if its recitation permits such a construction.”

State v. Burkhart, 58 S.W.3d 694, 697-98 (Tenn. 2001) (internal citation omitted).

       The rule of lenity is related to the doctrine of vagueness and the principle of fair
warning. “The rule of lenity is ‘rooted in fundamental principles of due process which
mandate that no individual be forced to speculate, at peril of indictment, whether his or
her conduct is prohibited.’” State v. Hawkins, 406 S.W.3d 121, 137-138 (Tenn. 2013)
(quoting State v. Marshall, 319 S.W.3d 558, 563 (Tenn. 2010)). Where there is
ambiguity in a statute, the rule of lenity requires the ambiguity to be resolved in favor of
the defendant. State v. Smith, 436 S.W.3d 751, 768 (Tenn. 2014). The rule of lenity
“reflects not merely a convenient maxim of statutory construction” but is based on
“fundamental principles of due process[.]” Dunn v. United States, 442 U.S. 100, 112
(1979).

       In 1989, the Tennessee General Assembly enacted “comprehensive penal and
sentencing reform legislation . . . as proposed by the Tennessee Sentencing Commission.”
State v. Cummings, 868 S.W.2d 661, 665 (Tenn. Crim. App. 1992). New criminal
statutes governing “offenses against property” were codified in Chapter 14 of Title 39.
See Tenn. Code Ann. §§ 39-14-101 through -702. The crime of burglary was codified at
Tennessee Code Annotated section 39-14-402. See 1989 Pub. Acts c, 591 §1. The
statute was amended in 1990, in pertinent part, by omitting the word “habitation” from
subsections -402(a)(1),(2), and (3), and from subsection -402(c). See 1990 Pub. Acts, c.
1030, § 22. In 1995, the 1990 version of subsection -402(a) was deleted in its entirety
and a new subsection -402(a) was enacted. See 1995 Pub. Acts, c. 496, § 1. Since its
enactment in 1995, subsection -402(a) has not been amended.

       Tennessee Code Annotated section 39-14-402(a) provides:

                                             -5-
             (a) A person commits burglary who, without the effective consent of
      the property owner:

                    (1) Enters a building other than a habitation (or any portion
             thereof) not open to the public, with intent to commit a felony, theft
             or assault;

                     (2) Remains concealed, with the intent to commit a felony,
             theft or assault, in a building;

                    (3) Enters a building and commits or attempts to commit a
             felony, theft or assault; or

                     (4) Enters any freight or passenger car, automobile, truck,
             trailer, boat, airplane or other motor vehicle with intent to commit a
             felony, theft or assault or commits or attempts to commit a felony,
             theft or assault.

Tenn. Code Ann. § 39-14-402(a)(1)-(3) (2017) (emphasis added). “Effective consent”
means “assent in fact, whether express or apparent, including assent by one legally
authorized to act for another.” Tenn. Code Ann. § 39-11-106(a)(9) (2017).

        We will begin with the presumption that the legislature acted purposefully when it
included the phrase “not open to the public” in subsection -402(a)(1) and did not include
the same phrase in subsection -402(a)(3) and determine whether Defendant has overcome
this presumption. See Loden, 920 S.W.2d at 265.

        The State argues that there was a practical reason for the legislature to expressly
limit the type of “building” in subsection -402(a)(1) to one “not open to the public” but
not limit the type of “building” in subsection -402(a)(3) in the same way. A defendant
must have the intent to commit a felony, theft, or assault at the time the defendant enters
a building to be guilty of burglary under subsections 402(a)(1). In burglary cases
requiring the State to prove intent to commit a felony, theft, or assault at the time of
entry, intent generally must be proven by circumstantial evidence, such as the manner of
entry. See Bollin v. State, 486 S.W.2d 293, 296 (Tenn. Crim. App. 1972) (inferring intent
from the fact that the doors to the building locked and a window broken with the glass on
the inside of the building); Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973) (in the
absence of an acceptable excuse, a jury can infer intent to commit theft based on illegal
entry into a residence or a building in which there is property which is the subject of
larceny). The State posits that the reason the legislature excluded “not open to the
public” from -402(a)(3) was to alleviate the obvious evidentiary problem of proving
                                           -6-
intent to commit a felony, theft, or assault at the time a person enters a building open to
the public.

        Defendant’s argument that the legislature “simply omit[ted] repetitive language[,]”
from -402(a)(3) is not persuasive and falls far short of overcoming the presumption that
the legislature acted purposefully by including “not open to the public” in -402(a)(1) and
excluding “not open to the public” in -402(a)(3). We hold that the legislature acted
purposefully by omitting “not open to the public” from subsection (a)(3). This holding is
consistent with three recent opinions of this court. See State v. Abbie Leann Welch, No.
E2018-00240-CCA-R3-CD, 2019 WL 323826, at *3 (Tenn. Crim. App. Jan. 23, 2019),
perm. app. granted (Tenn. May 17, 2019); State v. Jason Kane Ivey, No. E2017-02278-
CCA-R3-CD, 2018 WL 5279375, at *1 (Tenn. Crim. App. Oct. 23, 2018), perm. app.
filed; State v. Nikia Bowens, No. E2017-02075-CCA-R3-CD, 2018 WL5279374 at *7
(Tenn. Crim. App. Oct. 23, 2018) perm app. filed.

       Defendant’s argument that Tennessee Code Annotated section 39-14-402(a)(3) is
ambiguous and should be construed to apply only to buildings “not open to the public”
under the rule of lenity is also not persuasive. In Jason Kane Ivey and Nikia Bowens, this
court determined that -402(a)(3) is not ambiguous. Jason Kane Ivey, 2018 WL 5279375
at *1 Nikia Bowens, 2018 WL5279374 at *7. In Abbie Leann Welch, Jason Kane Ivey
and Nikia Bowens, this court also determined that section 39-14-402(a)(3) is not vague
and provides fair warning to people of common intelligence that, if after receiving notice
that the owner of a building revokes the effective consent for the person to enter the
building, the person enters the building and, once inside, commits or attempts to commit
a felony, theft or assault, the person can be charged with burglary. Abbie Leann Welch,
2019 WL 323826 at *1; Jason Kane Ivey, 2018 WL 5279375 at * 1; Nikia Bowens, 2018
WL5279374 at *7. Only one opinion of this court has interpreted -402(a)(3) to apply
only to buildings not open to the public and that opinion was vacated on procedural
grounds by our supreme court. See State v. Danielle Chandria Jensen, No. M2016-
01553-CCA-R10-CD, 2017 WL 3671093, at *10 (Tenn. Crim. App. Aug. 25, 2017),
appeal granted, judgment vacated (Tenn. Dec. 8, 2017).2

       Defendant also argues that, under the State’s interpretation of the burglary statute,
individuals can be convicted of a Class E felony under the serial shoplifter statute,


       2
          We note that one of the judges who joined in this court’s opinion in Danielle Chandria Jensen
authored the opinion in Abbie Leann Welch, the second judge who joined in Danielle Chandria Jensen
joins in this decision, and the authoring judge in Danielle Chandria Jensen wrote a separate dissenting
opinion in Abbie Leann Welch. The Rule 11 application in Abbie Leann Welch has been granted, and the
case is pending before the supreme court.

                                                 -7-
Tennessee Code Annotated section 39-14-146(c), or of a Class D felony under -402(a)(3)
of the burglary statute for the same conduct.

        Section 39-14-146(c) states:

       (c) Notwithstanding any other law, a fifth or subsequent conviction in a
       two-year period shall be punished one (1) classification higher than
       provided by § 39-14-105, and subject to a fine of not less than three
       hundred dollars ($300) nor more than the maximum fine established for the
       appropriate offense classification.

Tenn. Code Ann. § 39-14-146(c) (2017).

Defendant notes that section 39-14-146(c) was amended in 2016 to increase the
punishment for serial shoplifters and argues that the legislative history of the amendment
does not suggest that the legislature was aware of the State’s prosecution for burglary at
stores such as Walmart.3 Defendant’s legislative history argument is not cogent and goes
against the rule of statutory construction “that the General Assembly is aware of its own
prior enactments.” Lee Med., Inc., 312 S.W.3d at 527. We therefore presume that the
legislature was aware of Tennessee Code Annotated section 39-14-402(a)(3) at the time it
amended Tennessee Code Annotated section 39-14-146(c) to increase the punishment for
serial shoplifters. We conclude that the burglary statute and section 39-14-146(c)
prohibit different criminal offenses. The two offenses have different elements and the
two statutes punish different wrongs. Defendant has failed to show that the legislature’s
intent in enacting the serial shoplifting statute was to repeal subsection 39-14-402(a)(3)
by implication. See Mowery v. State, 352 S.W. 2d 435, 438 (Tenn. 1961) (quoting State
v. Lewis, 278 S.W.2d 81, 82 (Tenn. 1955)) (“Two statutes prohibiting the same wrong
and prescribing different degrees of punishment cannot exist at same time.”). As this
court recently stated, “the burglary statute applies to more than just repeat shoplifters,
such as those who enter a building without the effective consent of the owner and commit
or attempt to commit an assault or a felony.” Abbie Leann Welch, 2019 WL 323826, at
*4. We agree with this court’s holding in Abbie Leann Welch that “there is no conflict
between the repeat shoplifting statute and the burglary statute.” Id. In any event, section
39-14-146(c) became effective on July 1, 2017, after the Defendant was charged with
burglary and does not apply to this case.

      We hold that Tennessee Code Annotated section 39-14-402(a)(3) is not ambiguous
or vague, and provides fair warning to individuals who enter a building without the

       3
         Tennessee Code Annotated section 39-14-146(c) did not become effective until July 1, 2017,
over two months after Defendant was charged with burglary. See 2017 Pub. Acts. c. 184 §§ 1, 2.
                                               -8-
owner’s effective consent and commit a felony, theft, or assault. We also hold that
Tennessee Code Annotated section 39-14-402(a)(3) is applicable to both buildings open
to the public and buildings not open to the public.

                                Sufficiency of the evidence

       Defendant argues that there was insufficient evidence to prove that Walmart was
not open to the public. He states that “it was not disputed that Walmart was in fact open
for business at the time of [his] entry.”

        Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing 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, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

       As we have stated previously in this opinion, a person commits burglary when he
“[e]nters a building and commits or attempts to commit a felony, theft or assault”
“without the effective consent of the property owner[.]” Tenn. Code Ann. § 39-14-
402(a)(3) (2017). “A person commits theft of property if, with intent to deprive the
owner of property, the person knowingly obtains or exercises control over the property
without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103(a). “Effective
consent” is defined as “assent in fact, whether express or apparent, including assent by
one legally authorized to act for another.” Tenn. Code Ann. § 39-11-106(a)(9) (2017).

       We have previously concluded that the word “building” in this subsection of the
burglary statute should not be interpreted to mean “a building not open to the public.”
Thus, the State was not required to establish beyond a reasonable doubt that Walmart was
                                            -9-
not open to the public. In any event, the evidence admitted at trial showed that Defendant
had received two notices from Walmart that he was prohibited from entering any
Walmart property. Additionally, Mr. Smartt observed Defendant select five pairs of
scrubs, conceal them in his pants, and proceed to the exit. Mr. Smartt also testified that
the scrubs that Defendant concealed in his pants were valued at $76.60. Thus, we
conclude that the evidence introduced at trial was sufficient for a rational juror to have
determined that Defendant entered Walmart and committed a theft. Defendant is not
entitled to relief on this ground.

                                     Jury Instructions

       Defendant “has a right to a correct and complete charge of the law so that each
issue of fact raised by the evidence will be submitted to the jury on proper instructions.”
State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001). “An instruction should be considered
prejudicially erroneous only if the jury charge, when read as a whole, fails to fairly
submit the legal issues or misleads the jury as to the applicable law.” State v. Faulkner,
154 S.W.3d 48, 58 (Tenn. 2005).

                                  Lesser Included Offense

       Defendant claims that the trial court committed plain error by failing to instruct
the jury on the lesser included offense of attempted theft. Defendant failed to make a
written request for a jury instruction on attempted theft as a lesser included offense of
burglary and failed to raise the issue in his motion for new trial. Therefore, Defendant
waived the issue. See State v. Martin, 505 S.W.3d 492, 503 (Tenn. 2016); State v.
Stevenson, No. W2011-02053-CCA-R3-CD, 2013 WL 587313, at *10 (Tenn. Crim. App.
Feb. 13, 2013). However, Defendant’s waiver does not preclude our review of the issue
under the plain error doctrine. State v. Fayne, 451 S.W.3d 362, 371 (Tenn. 2014).

        Plain error relief is “limited to errors that had an unfair prejudicial impact which
undermined the fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626,
642 (Tenn. Crim. App. 1994). In order to be granted relief under plain error, five criteria
must be met: (1) the record must clearly establish what occurred in the trial court; (2) a
clear and unequivocal rule of law must have been breached; (3) a substantial right of the
accused must have been adversely affected; (4) the accused did not waive the issue for
tactical reasons; and (5) consideration of the error is “necessary to do substantial justice.”
Adkisson, 899 S.W.2d at 640-41; see also State v. Smith, 24 S.W.3d 274, 282-83 (Tenn.
2000) (Tennessee Supreme Court formally adopting the Adkisson standard for plain error
relief). When it is clear from the record that at least one of the factors cannot be
established, this court need not consider the remaining factors. Smith, 24 S.W.3d at 283.

                                            - 10 -
The defendant bears the burden of persuasion to show that he is entitled to plain error
relief. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

       When addressing issues related to failure to charge lesser included offenses,
appellate courts consider three questions: “(1) whether the offense is a lesser included
offense; (2) whether the evidence supports a lesser included offense instruction; and (3)
whether the failure to give the instruction is harmless error.” Id. (citing State v. Allen, 69
S.W.3d 181, 187 (Tenn. 2002)).

        Pursuant to Tennessee Code Annotated section 40-18-110(f)(1), an offense is a
lesser included offense if “[a]ll of its statutory elements are included within the statutory
elements of the offense charged[.]” Tenn. Code Ann. § 40-18-110(f)(1) (2017). Section
40-18-110 further provides, in pertinent part:

       (b) In the absence of a written request from a party specifically identifying
       the particular lesser included offense or offenses on which a jury instruction
       is sought, the trial judge may charge the jury on any lesser included offense
       or offenses, but no party shall be entitled to any lesser included offense
       charge.

Tenn. Code Ann. § 40-18-110(b) (2017).

       Based on the indictment and the facts proven at trial, we determine that attempted
theft was a lesser included offense of burglary indicted under Tennessee Code Annotated
section 39-14-402(a)(3).4 It would have been impossible for the State to have proven
Defendant guilty of burglary without proving Defendant attempted to commit theft. For
the same reason, criminal trespass is also a lesser included offense.

       However, Defendant’s cross-examination of the State’s witnesses and arguments
to the jury focused on the criminal trespass element of burglary, not the attempt to
commit theft element for which there was overwhelming evidence. As such, there were
advantages to an “all or nothing” instruction where only burglary was charged to the jury.
Defendant has failed to show that he did not waive the issue for tactical reasons.




       4
         Theft of property can be a Class A misdemeanor or a Class E, D, C, B, or A felony depending
on the value of the property taken. See Tenn. Code Ann. §§ 39-14-103 and 39-14-105(a)(1)-(6) (2017).
Obviously, Class C, B, and A felony thefts would not be lesser included offenses of Class D felony
burglary. The same is true if the offense committed or attempted to be committed after entering a
building without the owner’s effective consent is a felony or assault.
                                              - 11 -
                                        Effective Consent

       Defendant claims that the trial court committed plain error because it did not
specify whether “effective consent” related to entry into the building or to the theft. The
State argues that the issue is waived because Defendant failed to object to the instruction,
and that even if not waived, Defendant cannot prevail on plain error. We agree with the
State.

       The trial court used Tennessee Pattern Jury Instruction 14.01[Part C] to craft his
instructions for burglary indicted under -402(a)(3) and 11.01 to craft his instruction for
the theft element of burglary. The trial court instructed the jury:

       For you to find the defendant guilty of [burglary], the state must have
       proven beyond a reasonable doubt the existence of the following essential
       elements:

               that the defendant entered a building other than a habitation; and
               (2) that the defendant attempted to commit Theft;
               The elements of Theft are:
                       (A) that the defendant knowingly obtained or exercised
                          control over property owned by Walmart; and
                       (B) that the defendant did not have the owner’s
                          effective consent; and
                       (C) that the defendant intended to deprive the owner of
                          the property.
                                                     And
               (3) that the defendant acted without the effective consent of the
                   owner; and
               (4) that the defendant acted either intentionally, knowingly, or
                   recklessly.

      The trial court instructed the jury using the pattern definitions for the terms
“Habitation,” “Occupied,” “Owner,” “Enter,” “Effective Consent,” and “Knowing.”

       The trial court correctly instructed the jury that ‘“[e]ffective consent” means
assent in fact, whether express or apparent, including assent by one legally authorized to
act for another.”5 This definition of effective consent is included in T.P.I. 14.01 for
burglary and in T.P.I. 11.01 for theft of property.

       5
          The trial court also instructed the language from the pattern instructions describing when
consent is not effective.
                                              - 12 -
        Although the Defendant failed to object to the charge, he did raise the issue in his
motion for new trial. “An erroneous or inaccurate jury charge, as opposed to an
incomplete jury charge, may be raised for the first time in a motion for a new trial and is
not waived by the failure to make a contemporaneous objection.” Id. We determine that
the jury charge on effective consent was at worst incomplete, not erroneous, and
therefore the issue is waived by Defendant’s failure to make a contemporaneous
objection. Waiver notwithstanding, we determine that Defendant is not entitled to plain
error relief.

       Viewing the jury instructions in its entirety, we determine that the instructions
fairly submitted the issue concerning effective consent to the jury for determination.
Steve Smartt, the Walmart asset protection associate, testified that Defendant did not
have permission to enter the Walmart store and did not have permission to conceal
merchandise down his pants. Based on the evidence presented at trial, we determine that
the instructions were clear enough for the jury to determine that Defendant did not have
consent to enter the Walmart store or to steal Walmart’s property.

                                 Failure to Define Attempt

        Defendant claims the trial court erred in failing to instruct the jury on the
definition of attempt. Although Defendant did not object to the jury instructions, he did
raise the issue in his motion for new trial, so we elect to review the issue for plain error.
As previously stated, Defendant “has a right to a correct and complete charge of the law
so that each issue of fact raised by the evidence will be submitted to the jury on proper
instructions.” Farner, 66 S.W.3d at 204. “An instruction should be considered
prejudicially erroneous only if the jury charge, when read as a whole, fails to fairly
submit the legal issues or misleads the jury as to the applicable law.” Faulkner, 154
S.W.3d 48. Although the trial court should have defined “attempt” for the attempt to
commit theft element of burglary, Defendant has not shown that a substantial right of his
was adversely affected, that he did not waive the issue for tactical reasons; or that
consideration of the error is “necessary to do substantial justice.” The evidence was
unrebutted that Defendant stuffed five pairs of scrubs down his pants and attempted to
leave the Walmart store. Because the evidence that Defendant attempted to steal the
scrubs was overwhelming, there was little advantage from a tactical standpoint to
objecting to the instruction. Defendant has not shown that his rights were adversely
affected, and substantial justice does not demand that this court grant relief for plain
error.




                                           - 13 -
             Failure to Instruct the Definitions of Intentionally and Recklessly

        Defendant claims the trial court erred in failing to instruct the jury on the
definition of intentionally and recklessly. Again, Defendant failed to object to the jury
instructions, so the issue is waived. Waiver notwithstanding, we conclude that the trial
court erred in failing to instruct the jury on the definition of intentionally and recklessly.
However, we also conclude that consideration of this error is not necessary to do
substantial justice. See Adkisson, 899 S.W.2d at 640-41. The proof was overwhelming
that Defendant concealed the scrubs in his pants and attempted to leave Walmart. Any
instructional error in failing to define intentionally or recklessly “was not constitutional in
nature” and was harmless based on the overwhelming evidence that Defendant
knowingly concealed the merchandise. Faulkner, 154 S.W.3d at 60-61.

                                      CONCLUSION

       We affirm the judgment of conviction.



                                                     _________________________________
                                                     ROBERT L. HOLLOWAY, JR., JUDGE




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