         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     May 14, 2002 Session

                  STATE OF TENNESSEE v. WADE P. TUCKER

                      Appeal from the Circuit Court for Franklin County
                             No. 13166    J. Curtis Smith, Judge



                      No. M2001-02298-CCA-R3-CD - Filed July 17, 2002


The defendant, Wade P. Tucker, appeals from his Franklin County Circuit Court convictions of
especially aggravated robbery and aggravated burglary. These convictions resulted from a bench
trial in which the facts were stipulated by the defendant and the state. On appeal, the defendant
challenges the sufficiency of the convicting evidence. We conclude that sufficient evidence supports
the conviction of especially aggravated robbery; however, we hold that the conviction of aggravated
burglary is infirm because the defendant, as an owner of the property, effectively consented to his
entry into the house where the crime took place. Accordingly, we reverse and vacate the conviction
of aggravated burglary but affirm the conviction of especially aggravated robbery.

     Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Vacated in Part;
                                    Affirmed in Part.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JOE G. RILEY, JJ., joined.

Robert S. Peters, Winchester, Tennessee, for the Appellant, Wade P. Tucker.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney
General; J. Michael Taylor, District Attorney General; and Steve Blount, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

                Based upon the defendant’s actions on January 23, 2000, the Franklin County Grand
Jury indicted him for the attempted first-degree murder of his estranged wife, Debbie Tucker, the
especially aggravated robbery of Ms. Tucker, and the especially aggravated burglary of the
defendant’s and Ms. Tucker’s home in which Ms. Tucker was residing at the time. The defendant
pleaded guilty to attempted first-degree premeditated murder and received a Range I sentence of 24
years in the Department of Correction, subject to a 30 percent release eligibility date. The defendant
waived his right to trial by jury on the remaining counts, and he and the state submitted a stipulation
of facts to the court for a bench trial on especially aggravated robbery and especially aggravated
burglary. Following the bench trial, the trial court convicted the defendant of especially aggravated
robbery and aggravated burglary. On the aggravated burglary conviction, the trial court sentenced
the defendant to a Range I term of five years, subject to a 30 percent release eligibility date. On the
especially aggravated robbery conviction, the trial court sentenced the defendant to a term of 24
years in the Department of Correction, and based upon Tennessee Code Annotated section 40-35-
501(i)’s designation of especially aggravated robbery as a violent offense, the court sentenced the
defendant to serve 100 percent of the prescribed sentence. All sentences were imposed to run
concurrently. On appeal, he challenges the sufficiency of the evidence for both the especially
aggravated robbery and the aggravated burglary convictions.

                The stipulation of facts revealed that the defendant and the victim were husband and
wife. On November 19, 1999, the victim filed a divorce complaint in which she alleged that the
defendant had been guilty of “inappropriate marital conduct and adultery.” In the complaint, the
victim sought custody of the parties’ two minor children and asked that she be awarded, inter alia,
the parties’ jointly-owned house located on Rock Creek Road in Franklin County. As of January
23, 2000, the divorce was still pending, no property rights had been adjudicated, and the defendant
was not subject to any order restraining him from going about the victim or the parties’ house. The
defendant resided at the Dripping Springs Subdivision home of his father, Gerald Tucker, and the
victim resided at the Rock Creek Road house. Between November 19, 1999 and January 23, 2000,
the defendant had been to the Rock Creek Road house on multiple occasions to pick up and drop off
the parties’ children. On the evening of January 22, 2000, the parties’ children were staying at
Gerald Tucker’s home. Thus, on the night of January 22 and in the early morning hours of January
23, 2000, the victim was the only person staying at the Rock Creek Road house.

                 At approximately 2:30 a.m. on January 23, 2000, the victim awoke to gunfire and
realized that she had been shot. She got up from her bed and was shot again. She saw “a male
looking figure near her bedroom door holding a long-barreled gun.” The victim fled to a closet, and
the assailant, who was wearing a ski mask, came into the closet and shot her again. After the
assailant left the closet, the victim crawled toward her bed to get the cordless telephone for the
purpose of calling 911. Due to injuries to her hands and arms, she was unable to handle the phone
and pushed it along the floor back to the closet. She heard sounds of the assailant moving about in
the house. The victim was able to dial 911 with her tongue and ultimately reached the Franklin
County Sheriff’s Department dispatcher. While the victim was on the telephone, she saw the ski-
masked intruder come back to the closet through the glow of the bathroom light. Despite the
presence of the ski mask, the victim was able to recognize the intruder as the defendant. She
screamed, and the defendant shot her again. The victim “played dead at that time.” She heard the
defendant in the bedroom opening drawers in her jewelry chest.

                Franklin County officers arrived at the Rock Creek Road house pursuant to the 911
call and found the victim in the closet. She was transported to a hospital in Winchester and was
ultimately air-lifted to a medical center in Chattanooga. The victim suffered “multiple gunshot
wounds to her chest and neck area, and to her arms and hands.” The stipulation of facts reveals that

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the victim “was severely injured, with said injuries being life threatening [, resulting in her being]
disfigured.”

              Both the defendant’s and the victim’s lives were insured by a Horace Mann Insurance
Company life insurance policy which provided “that, if one of them died, the survivor would receive
$300,000.”

                The officers obtained a sample of the victim’s blood, and they recovered shotgun
pellets from the victim’s bed, the bedroom floor, the closet, the victim’s night shirt, and the hospital
trauma room where she was treated. The officers also recovered shotgun wadding from the bedroom
area and from the victim’s person. The officers found the victim’s jewelry chest open and drawers
pulled out of furniture throughout the house. An outside door was standing open with a window in
the door broken. The officers obtained samples of glass from the door. They also found a live,
twelve-gauge shotgun shell in the house.

               Officers who were dispatched to Gerald Tucker’s house arrived at 3:08 a.m. and
found the defendant’s truck parked outside the house with the “hood of the truck . . . hot to the
touch.” When the defendant’s father led the officers to the defendant’s room, “he actually crawled
out of the bed and crawled on the floor before standing up with the assistance of his father.” He
appeared to the officers to be “very shaken.”

               With the consent of Gerald Tucker, the officers searched his house and found a
twelve-gauge shotgun that, despite having been recently cleaned with oil, contained human blood
and tissue inside the barrel. The DNA of the blood and tissue inside the shotgun barrel was
consistent with the victim’s DNA. The officers found particles of glass inside the defendant’s truck
which proved to be “like and consistent with respect to refractive index” to the glass broken from
the door window at the Rock Creek Road house.

              In a statement given to the officers, the defendant denied that he had gone to the
victim’s house and that he had shot her. He admitted to an intimate relationship with a woman
named Sabrina Hodge.

                On February 18, 2000, a neighbor of Gerald Tucker found a dark plastic bag in a
wooded area near the road that leads to the defendant’s father’s house. Inside the bag, he found a
wallet that contained the victim’s identification papers. Being aware of the assault against the
victim, the neighbor called the TBI. The TBI agent who took custody of the bag found inside, in
addition to the wallet, numerous pieces of jewelry, coins, a ski mask, gloves, coveralls, and boots.
The plastic bag also contained another plastic bag which contained “numerous love letters and cards”
which had been sent to the defendant from Ms. Hodge. The second bag also contained “numerous
photos of Sabrina Hodge in revealing underwear clothing.”

              The victim identified the wallet as hers and the jewelry and coins as her property that
had been stored in her jewelry chest prior to the attack. The photographs bore the defendant’s

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fingerprints. The victim identified the ski mask as being similar to the one the defendant wore
during the attack. The ski mask and gloves bore particles of glass which “were like and consistent
with respect to refractive index” to the glass broken from the door. Furthermore, via DNA analysis,
blood found on the ski mask matched the victim’s blood. The coveralls from the bag contained five
spent twelve-gauge shotgun-shell casings. Laboratory analysis revealed that all five shells had been
fired from the twelve-gauge shotgun found at Gerald Tucker’s house. Analysis of the empty shotgun
casings found in the coveralls and the live twelve-gauge rounds found in the victim’s house and in
the defendant’s truck revealed that all of the ammunition was “likely manufactured at the same time
as each other and were likely packaged together by the manufacturer.”

               Based upon comparisons made between the pellet pattern of the twelve-gauge shotgun
found in Gerald Tucker’s house and the pellet pattern found in the victim’s nightshirt, TBI
laboratory personnel opined that she was shot on at least one occasion from a distance of less than
ten feet.

              Based upon these stipulated facts, the trial court convicted the defendant of especially
aggravated robbery and aggravated burglary.

               On appeal from a conviction, the state is entitled to the strongest legitimate view of
the evidence and “all reasonable or legitimate inferences which may be drawn therefrom.” State v.
Harris, 839 S.W.2d 54, 75 (Tenn. 1992); State v. Cabbage, 571 S.W.2d 832, 835-36 (Tenn. 1978).
Moreover, a verdict against the defendant removes the presumption of innocence and raises a
presumption of guilt on appeal, State v. Grace, 493 S.W. 2d 474, 476 (Tenn. 1973); Anglin v. State,
553 S.W.2d 616, 620 (Tenn. Crim. App. 1977), which the defendant has the burden of overcoming.
State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

               Most significantly, when the sufficiency of the evidence is challenged, the relevant
question for an appellate court is whether, after reviewing 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. Tenn R. App. P. 13; Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
2782 (1979); see also State v. Williams, 657 S.W.2d 405 (Tenn. 1983). This rule applies to findings
based on both direct and circumstantial evidence. State v. Thomas, 755 S.W.2d 838, 842 (Tenn.
Crim. App. 1988).

                                I. Especially Aggravated Robbery.

                First we review the challenge to the evidence supporting the conviction of especially
aggravated robbery. A person commits especially aggravated robbery who commits a robbery with
a deadly weapon and when the victim suffers serious bodily injury. Tenn. Code Ann. § 39-13-403(a)
(1997). Robbery “is the intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” Id. § 39-13-401(a) (1997). “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.” Id. § 39-14-103 (1997).

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               The trial court determined that

               [w]hether the defendant meant to only use the robbery of his wife’s
               belongings to divert or confuse law enforcement agents . . . does not
               diminish the fact that (1) he planned his course of conduct in
               advance; (2) he knowingly took property from his wife’s possession
               without her consent; (3) he accomplished this action by the use of a
               deadly weapon; (4) he caused his victim to suffer serious bodily
               injury as a result of his action; and (5) he substantially interfered with
               his wife’s ability to possess and enjoy her property.

We glean from the defendant’s brief that he maintains that he did not intend to take the victim’s
property when he shot her and, in any event, his purpose was to kill his wife, not to deprive her of
her property. The state conversely argues that the “facts are undisputed that defendant obtained
items that he knew belonged to Mrs. Tucker [and] was able to [do so] because he used a deadly
weapon and caused Mrs. Tucker serious bodily injury.”

                 Before analyzing the claim that the intent to steal the victim’s property had not been
formed at the time of the assaults, we briefly dispose of the claim that the defendant did not intend
to deprive the victim of her property. The trial court essentially held that it was immaterial whether
the defendant had a purpose of depriving the victim of her property. We agree. By inserting as an
element of theft that the offender must obtain the property “with the intent to deprive the owner” of
the property, the legislature obviously did not intend that the offender’s purpose must be the owner’s
loss or deprivation. See Tenn. Code Ann. § 39-14-103 (1997). If that were the meaning of the
element of intent to deprive, almost no asportation of property would be proscribed by Code section
39-14-103. We judicially know that a thief’s primary purpose is to profit or otherwise benefit from
his ill-gotten gains; yet, we understand that such a purpose equates to an intent to deprive the owner
of the stolen property for purposes of Code section 39-14-103. Thus, regardless of the ultimate
motive or purpose, the offense is established when the evidence shows that the defendant intended
to deprive the owner of property when the defendant knowingly obtained or exercised control over
the property. See Tenn. Code Ann. § 39-14-103 (1997).

                 Now, we address the issue of whether the evidence of especially aggravated robbery
is insufficient because the defendant may not have formed the intent to steal at the time he assaulted
the victim. We organize our analysis into two steps: (a) whether an intent to steal that exists prior
to or is contemporaneous to the assault is necessary or material to the crime of especially aggravated
robbery; and (b) whether the fact-finder could reasonably infer that a prior or contemporaneous
intent to steal existed.

                                                 (a)

               In this part, we address whether it is material to a charge of especially aggravated
robbery that the defendant may not have intended to steal the victim’s property at the time he shot

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her. As is pertinent to the present case, the robbery statute requires that the defendant intentionally
or knowingly steal property from another “by violence.” Tenn. Code Ann. § 39-13-401(a) (1997)
(emphasis added). When the robbery is accomplished with a deadly weapon and the victim suffers
serious bodily injury, the offense becomes especially aggravated. Id. § 39-13-403(a) (1997). The
statutes contain no express requirement that the purpose to steal must coincide with the violence or
serious bodily injury or that the assault be for the purpose of theft.

                 The state relies upon State v. Shawnda James, No. 01C01-9803-CC-00093 (Tenn.
Crim. App., Nashville, Aug. 11, 1999), perm. app. denied (Tenn. 2000), in which the defendant was
convicted of first-degree, premeditated murder and especially aggravated robbery of the victim,
despite her contention that, because the post-killing theft was an afterthought, she was guilty of mere
theft and not especially aggravated robbery. This court concluded that defendant James was able
to steal the victim’s property because she previously had shot and killed the victim. Id., slip op. at
13. Essentially, the Shawnda James panel held that, based upon the taking of the victim’s property
in the wake of the murder, it was immaterial whether the defendant intended to commit theft when
she shot the victim.

                  In Shawnda James, this court followed what has been characterized as the
“traditional rule” that the state need not prove that the defendant assaulted the victim for the purpose
of theft, when the proscriptive statute does not recite that the “force must be used for the purpose of
committing the theft.” See 2 Wayne R. Lafave & Austin W. Scott, Substantive Criminal Law § 8.11
at 454 (1986). Rather, the nexus between the theft and the antecedent assault is supplied when the
defendant merely exploits the victim’s disabled condition by stealing the victim’s property. Id.;
accord State v. McKinney, 265 Kan. 104, 1131, 961 P.2d 1, 7-8 (1998) (“Under factual cir-
cumstances where a defendant shoots his victim and later decides to take and remove the victim’s
personal belongings and where the act of force and the taking of the property are so connected as to
form a continuous chain of events so that the prior force makes it possible for the defendant to take
property from the victim’s body without resistance, that is sufficient for a conviction of the crime
of robbery.”); State v. Mason, 403 So.2d 701 (La. 1981) (holding that acts of violence need not have
been for the purpose of taking the property); Stebbing v. State, 299 Md. 331, 353-54, 473 A.2d 903,
914-15 (1984) (holding that the taking of property still constituted a robbery even though the original
attack may not have been committed for the purpose of taking the victim’s property); Chappell v.
State, 114 Nev. 1403, 1408, 72 P.2d 838, 841 (1998) (“[I]n robbery cases it is irrelevant when the
intent to steal the property was formed.”). According to this view, whether the defendant had formed
an intent to steal from the victim at the time of the assault may be immaterial to whether he
committed robbery.

                 Even though the Tennessee robbery statute appears to accommodate this traditional
rule and to be similar to the statutes in other jurisdictions where the traditional rule has been applied,
and even though this court followed the traditional rule in Shawnda James, we must, at this juncture,
determine the effect of our supreme court’s decision in State v. Buggs, 995 S.W.2d 102 (Tenn.
1999), which arguably could be construed as holding that, to support robbery as a predicate offense
to felony murder, the intent to steal must pre-exist or be concurrent with the assault.

                                                   -6-
                  In Buggs, a felony-murder case, the defendant stabbed his girlfriend to death after he
“snapped” during an argument. Id. at 104. Afterward, he stole the victim’s cash and used it to
purchase cocaine. Id. Despite Buggs’s characterization of the decision to steal the money as an
“afterthought,” id. at 103, our supreme court held that the evidence was sufficient to convict Buggs
of felony murder – murder committed in the perpetration of a robbery. The court acknowledged that,
in a felony-murder case, when the killing precedes the commission of the predicate felony, “there
is a split of authority [among] the various jurisdictions as to whether intent to commit the felony must
exist concurrent[ly] with the commission of the homicide, or whether intent formed after a killing
is nonetheless sufficient to bring a case within the felony-murder rule.” Id. at 106 (emphasis added).
The Buggs court ultimately concluded that “for the felony-murder doctrine to be invoked, the actor
must intend to commit the underlying felony at the time the killing occurs.” Id. at 107. Despite this
conclusion, the court held that the “jury may reasonably infer from a defendant’s actions
immediately after a killing that the defendant had the intent to commit a felony prior to, or
concurrent with, the killing.” Id. at 108. In reviewing the facts in Buggs, the high court concluded
that the jury could reasonably have inferred that Buggs formed an intent to kill the victim prior to
or concurrently with the murderous act.

                Thus, in a felony-murder case in which the predicate felony is robbery, Buggs
requires that the intent to steal be formed prior to or concurrently with the assault upon the victim.
Moreover, Buggs seems applicable in the present robbery case because, when the robbery victim
dies, as she did in Buggs, a resulting felony-murder charge is baseless unless a robbery did occur.
If Buggs’s “prior to or concurrently with” rule applies as means of defining the robbery as a
predicate to felony murder, it contradicts the traditional rule that, in applying a robbery statute such
as Tennessee’s, the force or violence used against the victim need not be for the purpose of theft.

                We do not believe that Buggs changes the traditional rule when the charged offense
is especially aggravated robbery, as opposed to felony murder. In our view, Buggs sets boundaries
for defining an assault as murder, not an assault as an element of especially aggravated robbery. In
Buggs, the high court carved out a special rule for felony-murder cases, “[g]iven the fact that the
felony-murder rule is a legal fiction in which the intent and the malice to commit the underlying
felony is ‘transferred’ to elevate an unintentional killing to first-degree murder.” Id. at 107. Based
upon the legal-fiction nature of felony-murder theory, the court was “reluctant” to reject a
requirement that the intent to commit the underlying felony must exist prior to or concurrently with
the lethal assault. Id. Indeed, the predicate felony in Buggs was mere robbery; an injury to the
victim was not a required element of this predicate offense, and there was no need to analyze the
culpability for the injury as a means of finding the elements of the predicate offense. The court was
examining the culpability for the homicide. As such, Buggs’s “prior to or concurrently with” rule
has no application in an especially aggravated robbery prosecution.

             With the rationale in Buggs being limited to prosecutions for felony murder, we hold
that Shawnda James controls. The result is that the intent to steal need not exist prior to or

                                                  -7-
concurrently with the shooting in a case in which the defendant is charged with especially aggravated
robbery.

                                                 (b)

                 Despite our conclusion that the intent to steal need not have existed prior to or
contemporaneously with the assault in order to support a conviction of especially aggravated
robbery, we consider the issue of whether such an intent on the defendant’s part was reasonably
inferred from the evidence. We conclude that the trial court’s inference that the defendant intended
to steal the victim’s property when he entered the dwelling is reasonably supported by the stipulated
facts and that, on appellate review, we are not free to infer otherwise.

                The aspect of Buggs that is applicable to the present case is the holding that, when
the assault precedes the act of theft, a jury may reasonably infer from a defendant’s actions
immediately after an assault that the defendant intended to commit the theft prior to, or concurrently
with, the assault. See Buggs, 995 S.W.2d at 108. We must ascertain, however, whether the rule is
applicable when the inference was drawn not by a jury but by a trial court and when the basis for the
inference is a statement of stipulated facts.

                In a case in which all of the adjudicative facts are stipulated by the parties and there
are neither bases for factual contradiction nor issues of credibility, it may be that the appellate court
is in the same position as the trial court to review the facts as presented. See, e.g., State v. Binette,
33 S.W.3d 215, 217 (Tenn. 2000) (“[W]hen a court’s findings of fact at a suppression hearing are
based solely on evidence that does not involve issues of credibility, such as the videotape evidence
[of the DUI encounter] in this case, the rationale underlying a more deferential standard of review
is not implicated.”). The stipulated facts presented in this case, however, are not, by the very nature
of the stipulation, at issue; rather, the conflicting inferences which may be drawn from these facts
frame the issue.

                The defendant argued forcefully that the trial court should infer from the facts,
including the abandonment of the plastic bag containing the victim’s property, that he entered the
Rock Creek Road house on the morning of January 23, 2000 for the purpose of killing his wife and
that he later took the jewelry only for the purpose of misleading the police into believing that an
intruder entered the house to commit a robbery.

               Unfortunately for the defendant, the trial court inferred that the defendant went to the
house with a preconceived plan to kill the victim and to steal the jewelry if only as a means of
confounding the police. We cannot say that this inculpating inference lacked a basis in fact. The
defendant spent some time in the house while the victim painstakingly retrieved the cordless
telephone and called 911. After his rummaging through the house, he returned to find the victim on
the telephone and fired the shotgun at her again from close range. She feigned being dead, and he
immediately opened the jewelry chest.

                                                  -8-
                 We conclude that the trial court was free to draw inferences from the stipulated facts,
State v. Pruett, 788 S.W.2d 559, 560 (Tenn. 1990), and that its inferences were reasonable and
supported by the facts. See generally Buggs, 995 S.W.2d at 108. Moreover, on appeal, our review
of the convicting evidence is the same whether the conviction was wrought by the hands of a jury
or a trial judge. See Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the
trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier
of fact of guilt beyond a reasonable doubt.”); cf. Tenn. R. App. P. 13(d) (In civil cases, appellate
review standard of a trial court’s findings of fact is de novo accompanied by a presumption of
correctness; however, the standard of review of a jury verdict is that the verdict will stand if material
evidence supports it.). Even in a case of stipulated facts, we view the evidence in the light most
favorable to the state, including “all reasonable and legitimate inferences which may be drawn [from
the evidence].” See Cabbage, 571 S.W.2d at 835-36; Pruett, 788 S.W.2d at 560-61 (appellate court
may not substitute its own inferences for the inferences drawn by a trier of fact, even though the facts
were stipulated by the parties).

                Thus, we are constrained to accept the trial court’s inference because the trial court
was the fact-finder, and the inference it drew was reasonable and the one most favorable to the state.
As a result, even if an intent to steal that pre-exists or is contemporaneous with the assault was
necessary to a conviction of especially aggravated robbery, we find that the evidence sufficiently
supports the conviction.

                                         II. Aggravated Burglary.

               Now, we address the defendant’s challenge to his aggravated burglary conviction.
One commits burglary who, “without the effective consent of the property owner . . . [e]nters a
building and commits or attempts to commit a felony, theft or assault.” Tenn. Code Ann. § 39-14-
402(a)(3) (1997). Burglary becomes aggravated burglary when the building is a habitation. Id. §
39-14-403(a) (1997). A “habitation” is defined as “any structure, including buildings, modular units,
motor homes, trailers, and tents, which is designed or adapted for the overnight accommodation of
persons.” Id. § 39-14-401(1)(A) (Supp. 2001). For purposes of the burglary statutes, an “owner”
refers to “a person in lawful possession of property, whether the possession is actual or
constructive.” Id. § 39-14-401(3). The definition of “owner” does not “include a person, who is
restrained from the property or habitation by a valid court order or order of protection other than
an ex parte order of protection, obtained by the person maintaining residence on the property.” Id.

               The issue that we must resolve is whether the defendant, as a joint proprietor of the
house on Rock Creek Road who had not been restrained or enjoined from the premises, may be
convicted of burglarizing that house. We hold that because he, as an owner, effectively consented
to his own entry, he committed no burglary.

                 The parties owned the Rock Creek Road house jointly. Unless some restriction or
variation in the form of ownership between husband and wife was imposed by the deed or instrument

                                                   -9-
that conveyed title, which restriction or variation does not appear in the appellate record, the parties,
as husband and wife, presumptively held title to the house as tenants by the entirety. See Weaver
v. Hamrick, 907 S.W.2d 385, 388 (Tenn. 1995); Preston v. Smith, 41 Tenn. App. 222, —, 293
S.W.2d 51, 59 (1955). A tenancy by the entirety is characterized by a “unity of interest, [a] unity
of title, [a] unity of time, and [a] unity of possession; or, in other words, joint tenants have one and
the same interest . . . held by one and the same undivided possession.” Id. The tenants by the
entirety, “the husband and wife as a unit[,] have the right to the current use and enjoyment of the
property.” Weaver, 907 S.W.2d at 388; see Robinson v. Trousdale County, 516 S.W.2d 626, 632
(Tenn. 1974).

                Because the defendant’s and the victim’s property rights in the house had not yet been
adjudicated by the divorce court on January 23, 2000, we conclude that the defendant, as a tenant
by the entirety, had an equal right with the victim to possess or use the house. In this circumstance,
his entry must be viewed as consensual for purposes of the burglary statute, which makes the lack
of “effective consent of the property owner” the linchpin for proscribing an entry. See Tenn. Code
Ann. § 39-14-402(a) (1997) (emphasis added); see also State v. Langford, 994 S.W.2d 126, 128
(Tenn. 1999) (defendant who was former boyfriend of burglary victim not in “lawful possession”
of victim’s premises; even though defendant formerly stayed with the victim he had no proprietary
interest in premises).

                Furthermore, because the defendant was not under any restraining or protective order
commanding him to stay away from the house, he was not excluded as an owner for purposes of the
burglary statute. See id. § 39-14-401(3) (Supp. 2001). In creating an exclusion from the definition
of an owner, the legislature circumscribed a class that is defined by being subject to a valid court
restraining or protective order, not a class that includes persons who are merely estranged spouses.

              Thus, the conviction of aggravated burglary must be reversed, and that charge must
be dismissed. The conviction of especially aggravated robbery is affirmed.




                                                         ___________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




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