         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           JANUARY SESSION, 1997


STATE OF TENNESSEE,            )
                                                                FILED
                                    C.C.A. NO. 02C01-9602-CR-00051
                               )                                   June 3, 1997
      Appellee,                )
                               )    SHELBY COUNTY           Cecil Crowson, Jr.
                               )                                Appellate C ourt Clerk
V.                             )
                               )    HON. CHRIS CRAFT, JUDGE
CUR TIS SM ITH,                )
                               )
      Appe llant.              )    (BURGLARY - VEHICLE)



FOR THE APPELLANT:                  FOR THE APPELLEE:

A.C. WH ARTO N, JR.                 JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

EDWARD G. THOMPSON                  M. ALLISON THOMPSON
Assistant Public Defender           Assistant Attorney General
616 Adams Avenue                    450 James Robertson Parkway
Memphis, TN 38103                   Nashville, TN 37243-0493
(On A ppea l)
                                    JOH N W. P IERO TTI
ROBERT T. HALL                      District Attorney General
Assistant Public Defender
201 Poplar Avenue                   TER REL L L. HAR RIS
Second Floor                        Assistant District Attorney General
Memphis, TN 38103                   201 Poplar Avenue - Third Floor
(At Tr ial)                         Memphis, TN 38103

MARC SORIN
Assistant Public Defender
201 Poplar Avenue, Second Floor
Memphis, TN 38103
(At Sentencing Hearing &
Motio n for N ew T rial)

OPINION FILED ________________________

REVERSED AND REMANDED

THOMAS T. WOODALL, JUDGE
                                 OPINION
              The Defen dant ap peals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. He was convicted of burglary of a

motor vehicle in violation of Tenn essee C ode Ann otated section 3 9-14-402(a )(4).

He received a fine of $3,000.00 and was sentenced to serve six (6) years in the

Tennessee Department of Corrections as a Range III offender. The Defendant

has raised four issues on appeal. The first two challenge the sufficiency of the

evidence to sustain the conviction and will be considered together by this Cou rt.

In his third issue, Defendant argues that the trial court erred in refusing to instruct

the jury on the lesser included offense of attempted burglary. In his fourth issue,

the Defendant argues that the trial court erred in failing to instruct the jury on the

offense of criminal trespass. Because we find merit in the last issue presented

by the Defendant, we reverse the judgment and remand this case to the trial

court for a n ew trial.



              Three (3) witnesses testified during the State’s case-in-chief. The

Defendant offered no proof. The owner of the van testified that on the evening

of Augus t 15, 1994 , he left his van in a parking lot adjacent to the B.B. King Blues

Club in Memphis with all of the van’s doors and windows locked and secured.

No one else had permission to enter the van.            The owner of the van was

performing inside the nightclub. Shortly before his evening performance was

finished, he was notified that someone had broken into his van. He could not

imm ediate ly stop his perform ance, b ut when he was finished, h e went o ut to the

van to observe whether there was any damage or any missing items. He noticed

the passenger’s side window was broken, papers from the glove compartment

                                          -2-
were strewn throughout the van, and his bo om box w as missing. T he police were

questioning the Defendant, and the owner of the van identified Defendant at trial

as the same man he observed being questioned by police on the night of the

incident.



             The other two (2) witnesses who testified at trial were friends of the

van’s owner. T hey had gone to the nightc lub to see him perform. As they were

leaving at approximately 11:30 p.m., they observed the Defendant following

close ly behind them on the street, carrying a large bag. When they turned

around to see who was following them, the Defendant doubled back across the

street. The witnesses then observed the Defendant standing next to the wh ite

van that belonged to their friend. Subsequently, he entered the van through the

driver’s side doo r and im media tely the witne sses ran to the van. They saw the

Defendant crouched down between the driver’s seat and the steering column.

When one of the witnesse s hit the side of the van and ord ered the Defen dant to

come out, he ba cked out of th e van a nd be gan a polog izing. H e did not have the

boom box in his possession. According to the testimony, the Defendant stated

to the effect that “I’m sorry, I didn’t know it was you-all’s van. I thought it was a

white boy’s van.” The Defendant continued to back away from the witnesses,

and, after reaching a nearb y corner, b egan to run.



             The witnesses went inside the club to notify the van’s owner of the

circumstances, and then accompanied the owner’s brother in a search for the

Defen dant. He was found less than two blocks away, still holding the bag that he

had in his possession earlier. Defendant was escorted to the police station and

taken into custody. The witnesses observed that the contents of Defendant’s bag

                                         -3-
were a cigarette lighter and a few items of clothing, none of which belonged to

the victim.



              In his first two issues, the D efendant ch allenges the su fficiency of the

evidence to support the conviction. When the accused challenges the sufficiency

of the convicting evidence, the standard 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 reaso nable d oubt. Jackson

v. Virginia , 443 U.S. 307, 319 (1979). This standard is applicable to findings of

guilt predicated upon direct evidence, circumstantial evidence or a combination

of direct and circu mstan tial evidenc e. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. C rim. App. 199 0).



              In determining the sufficiency of the evidence, this court does not

reweigh or reevalu ate the ev idence .     State v. C abbage, 571 S.W.2d 832, 835

(Tenn. 1978). Nor may this court substitute its inferences for those drawn by the

trier of fact from circum stantial evid ence. Liakas v. S tate, 199 Tenn. 298, 305,

286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the

State of Tennessee the stronge st legitima te view of the evidence contained in the

record as well as all reasonable and legitimate inferences which may be drawn

from the evide nce. State v. Herrod, 754 S.W.2d 627, 632 (Tenn. Crim. App.

1988).



              Questions conce rning the credibility of the witnesses, the weight and

value to be given the evidence, as well as all factual issues raised by the

evidence, are resolved by th e trier of fact, not this co urt. State v. Pappas, 754

                                           -4-
S.W .2d 620, 62 3 (Ten n. Crim. A pp.), perm. to appeal denied, (Tenn. 198 7). A

jury verdict accredits the State’s witnesses and resolves all conflicts in favor of

the State. State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3). Because a verdict

of guilt removes the presumption of innoc ence and re place s it with a presumption

of guilt, the accused has the burden in this court of illustrating why the evidence

is insufficient to support the verdict returned by the trier of fact. State v. Tug gle,

639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493 S.W.2d at 476.



              At the tim e of the com miss ion of th is offense, Tennessee Code

Annotated section 39-14-402(a)(4) provided that a person commits burglary who,

without the cons ent of th e prop erty ow ner, en ters an y autom obile or other motor

vehicle with the intent to commit a felony or theft. Appellant was found inside a

van which belonged to another person, without the consen t of the van’s owne r,

under circumstances which showed a forcible entry. Rece ipts stored in the glove

compartment were strewn throughout the inside of the va n. W e note that wh ile

the uncon tradicted p roof sho ws that a b oom b ox was m issing, the fa ct that no

witness observed the De fenda nt in possession of the boom box does n ot support

the Defen dant’s arg umen t that the evid ence w as insufficient to sustain the

conviction.



              Specifically, the Defendant argues that there was insufficient

evidence to support of the finding of any inten t by the De fendan t to comm it a

felony or theft. This court has often found that intent may be established by

circumstantial evidenc e. State v. Burkley, 804 S.W.2d 458, 460 (Tenn. Crim.

App. 1990); State v. Chrisman, 885 S.W.2d 834, 838 (Tenn . Crim. A pp.), perm.

to appeal denied, (Tenn. 1994). In almost all criminal cases, the one element

                                          -5-
which is most often proven by circumstantial evidence is the culpable mental

state of the defe ndant. State v. H arold Wayne Shaw, No. 01C01-9312-CR-

00439, Davidson Coun ty (Tenn. Crim. App., Nashville, filed October 24, 1996)(No

Rule 11 app lication filed); State v. Hall, 490 S.W.2d 495, 496 (Tenn . 1973).

Unless an accused states what his or her purpose, intent, or thinking was at the

relevant times , the trier of fact is left to determine the mental state of the accused

by making inferences drawn from the surrounding circumstances found to exist

by the trier of fact. Shaw, at p. 5 ; see, e.g., Poag v. State, 567 S.W.2d 775, 778

(Tenn. Crim. App. 1978). Therefore, while circumstantial evidence is needed for

the element of intent, the standard for sufficiency of the evidence remains

consta nt. Shaw.



             Our court has pre viously held that when a defendant has been

observed leaving a h ome, a fter entry has been made through a window at

appro ximate ly 2:00 a.m. and contents of the owner’s purse has su bseq uently

been found scattered on the floor, the jury cou ld have found that the defendant

entered the residence with the intent to search through the purse and remove any

items of value. State v. Burkley, 804 S.W .2d 458, 460 (Tenn. Crim . App. 1990 ).

Likewise, the pro of in this case indicated tha t the contents of the glove

compartment inside the van had been scattered and the jury could have found

that Defendant entered the van with the intent to search through the g love

comp artmen t and rem ove any ite ms of va lue.



             Therefore, we find the re is sufficient direct and circumstantial

evidence to suppo rt a finding by a rational trier of fact that the Defendant




                                          -6-
committed burglary of an autom obile. According ly, Defendant’s first two issues

are witho ut merit.



             In his third issue, Defendant argues that the tria l court erred by

refusing to charge the jury on the lesser include d offense of attem pted burglary.

Only when there is some evidence upon which reasonable minds could find a

defendant guilty of a pa rticular lesse r offense is the court required to instruct

regarding a lesser in cluded offense. Johnson v. S tate, 531 S.W.2d 558, 559

(Tenn. 1975); State v. Atkins, 681 S.W.2d 571, 577 (Tenn. Crim. App. 1984 ),

cert. denied, 470 U.S. 1028 (1985). In this case, both of the eye witnesses who

testified placed the Defendant inside of the van. No contrary proof was heard by

the jury. A charge on the lesse r includ ed offe nse o f attem pted b urglar y would

have been appropriate only if there had been proof that the Defendant had

unsu cces sfully tried to enter the van. There was no such proof. W hen th ere is

no evidence to support the lesser included offense, the practice of so charging

is not favore d. State v. Mellons, 557 S.W .2d 497 , 499 (T enn. 19 77); Wh itwell v.

State, 520 S.W .2d 338 , 343 (T enn. 19 75); State v. R onnie R oberts, No. 03C01-

9502-CR-00049, Sevier County (Tenn. Crim. App. at K noxville), perm. to appeal

denied, (Tenn . 1996).



             This issu e is withou t merit.



             In his final issue, the Defendant argues that it was plain error for the

trial court not to instruct the jury on the “lesser included offense” of criminal

trespass. This issue was not included in Defendant’s motion for new trial, and

ordinarily, this would bar appellate review of the issue because it is treated as

                                         -7-
waived. T.R.A .P. 3(e ). How ever, a s state d by this court in State v. Brooks, 909

S.W .2d 854 , 863 (T enn. C rim. App . 1995),


      [W]hen a proce dural de fault such as this con stitutes waiver, it
      remains within the appellate court’s discretion to notice and remedy
      plain error in the re cord. See Tenn. R. Crim. P. 52(b). A plain error
      is one that is obvious or clearly shown in the record and affects a
      substantial right of a party so as to warrant our consideration of
      whether action should be taken to do substantial justice.



             Criminal trespass is not a less er include d offense of burglary of a

vehicle. In order to be “less er included offen se,” the “lesser offens e may n ot

require proof of any element not included in the greater offense as charged in the

indictme nt.” State v. T rusty, 919 S.W.2d 305, 311 (Tenn. 1996). Tennessee

Code Annotated section 39-14-405 states that a person commits criminal

trespass who “knowing he does not have the owner’s effective consent to do so,

enters or remains on property, or a portion thereof.” In that same statute, the

word “enter” means “intrusion of the entire body.” Tenn. Code Ann. § 39-14-

405(c). At the time of this offense, according to Tennessee Code Annotated

section 39-14-402, a person commits burglary who, “without the effective consent

of the property ow ner enters an y freight or passenger car, automobile, truck,

trailer, or other motor vehicle with intent to com mit a felony or theft.” Howe ver,

in that same statute, regarding burglary, the word “enter” means “[i]ntrusion of

any part of the bod y.” Tenn . Code Ann. § 3 9-14-40 2(b)(1).




             Therefore, criminal trespass requires entry of the entire body of the

defendan t and burglary on ly requires intrusion of an y part of defenda nt’s body.




                                        -8-
              Howeve r, criminal trespass is a lesser grade or class of the charged

offense of burglary. Lesse r grades or clas ses of offense s are estab lished by

statute. State v. T rusty, id. at 310. Burglary and criminal trespass are fou nd in

Part 4 of Title 39, Chapter 14, Tennessee Code Annotated under the heading

designated “Burglary and R elated Offens es.”



              The proof in this case showed that upon being caught, the

Defendant apolo gized and to ld the witnesses that he thought the van belonged

to someone else. While the evidence in a case may be very strong to show an

accused’s guilt of the more serious offense, it is not the function of this court or

the trial court to m ake tha t decision . It is a function and responsibility of the finder

of fact, wh ich in th is case was the jury, and the jury must be correctly instructed.

Otherwise, in situations such as this, a defe ndan t is den ied his constitutional right

to trial by jury. State v. Wright, 618 S.W.2d 310, 315 (Ten n. Crim. App . 1981);

State v. Vance, 888 S.W .2d 776, 779 (Tenn. Crim . App. 1994 ).



              W e find it wa s plain error for the trial court not to instruct the jury in

this case as to the offense of criminal trespass, a lesser grade offense of the

charge of burglary.       Accordingly, we reverse the trial court’s judgment of

convic tion an d rem and th is case for a ne w trial.



                                    ____________________________________
                                    THOMAS T. W OODALL, Judge



CONCUR:




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___________________________________
JOE B. JONES, Presiding Judge


___________________________________
PAUL G. SUMMERS , Judge




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