         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    March 12, 2002 Session

                  STATE OF TENNESSEE v. MICKEY G. WHITE

                  Direct Appeal from the Circuit Court for McNairy County
                          No. 1350    Jon Kerry Blackwood, Judge



                     No. W2001-02429-CCA-R3-CD - Filed April 12, 2002


Following a jury trial, the defendant was convicted of aggravated burglary and sentenced as a Range
II, multiple offender to nine years in the Tennessee Department of Correction. He timely appealed,
arguing that the evidence presented was insufficient and that the trial court erred in instructing the
jury as to criminal trespass as a lesser-included offense of aggravated burglary. Based upon our
review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE, J., joined.

Didi Christie, Brownsville, Tennessee (on appeal); Gary F. Antrican, District Public Defender (at
trial); and Rickey W. Griggs, Assistant District Public Defender (at trial), for the appellant, Mickey
G. White.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Jerry W. Norwood, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

         On August 8, 2000, at approximately 8:10 p.m., the victim, Chris L. Dickey, was asleep in
his living room in the Bethel Springs community. He normally worked a 2:30 to 11:00 p.m. shift
but had stayed home that day because of illness. He was awakened by a knock at his front door and
left the living room to get his pants. When he came back into the room, the knocking had stopped,
but he heard a “scratching” sound at his back door and, then, a squeak as the door opened. He
obtained a pistol from his bedroom and returned to find the defendant standing in his living room
holding a wristwatch and a case containing binoculars, all of which belonged to the victim. The
defendant asked the victim not to shoot, saying that he had not pried open the door, as the victim
accused, but that it was unlocked. He told the victim that he had entered the house because he
needed gasoline for his car. The victim made the defendant wait until a law enforcement officer
arrived, and then he looked at his back door. He observed that the lip of the door had been pried up
to gain access to the lock. The latch had been pushed and the door opened.

        The victim said that his watch and binoculars case had been in a bowl in the kitchen and
dropped by the defendant onto the living room floor when the victim told him to “freeze.” The
victim identified two gray socks admitted into evidence, saying that the socks “look[] sort of like
what he had on his hands” the night of the incident.

        Deputy Joe Lambert, of the McNairy County Sheriff’s Department, responded to the 911 call
to the victim’s residence. He discovered that the victim’s back door had been pried open and found
scratch marks, consistent with those made by a screwdriver, on the door. The defendant, who was
bleeding from a head laceration, was inside the house. After arresting the defendant and transporting
him to the hospital for treatment of his injury, Lambert discovered a screwdriver and two gray socks
in the backseat of his patrol car, where the defendant had been sitting.

        Deputy Allen Strickland, also of the McNairy County Sheriff’s Department, testified that he
responded to the 911 call, as well, and was directed by a witness to a vehicle parked on a “field road”
about 200 yards from the victim’s residence. The vehicle, which he had towed, was registered to the
defendant’s “wife or girlfriend.” At the conclusion of Deputy Strickland’s testimony, the State
rested its case.

         The defendant, who was the only witness testifying for the defense, said that, at the time of
trial, he was incarcerated in the Tennessee Department of Correction as the result of a 1991 drug
conviction, for which he had been paroled, and then the parole revoked as the result of the instant
offense. He testified that he had also been convicted of bribery of a public servant.

        The defendant said that on August 8, 2000, he had driven his wife to her sister’s house and
was “going down to the water shed to see if anybody was down there that I knew that was fishing
down there.” He said that the “hot light and the gas light started flashing,” and he turned onto a field
road to turn around. His car went dead, and he was unable to restart it. He first tried to work on the
battery, and picked up the socks, apparently, to wipe his hands. After he was unable to restart the
car, he put the socks and a screwdriver in his back pocket and clipped his pocketknife to his right
front pocket and began walking toward a house he had seen. He knocked first at the front door and,
then, went to the back door, where he said that he committed the act of trespassing. The defendant
said that he picked up the binoculars’ case because he thought it was a cell phone, and that he picked
up the watch to see what time it was. He said that the victim struck him with the butt of a gun and
threatened to kill him. The defendant said the victim accused him of trying to steal his truck. He
admitted that he pried open the door but said it was only after he had knocked more than once at the
door.



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                                             ANALYSIS

                                   I. Sufficiency of the Evidence

        The defendant argues that the evidence was insufficient to establish that he entered the
victim’s home with the intent to commit a felony, theft, or assault. He contends that he had a
plausible explanation for the screwdriver and socks that were discovered in his possession, and for
picking up the victim’s binoculars and wristwatch. He further contends there was no proof that he
had any intent to assault the victim. The defendant asserts that the jury appears to have concluded
that he intended to commit a theft rather than aggravated burglary.

         The State argues that there was overwhelming proof that the defendant broke into the
victim’s residence and exercised control of the victim’s property without his consent. The State
asserts that there is direct evidence that the defendant entered the victim’s residence without consent;
that he carried a knife in his pocket; and that he began to remove items as soon as he entered the
residence.

        In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); 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.”). All questions involving the credibility of witnesses, the weight and value to
be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas,
754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial
judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the
theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated
the rationale for this rule:

                       This well-settled rule rests on a sound foundation. The trial
               judge and the jury see the witnesses face to face, hear their testimony
               and observe their demeanor on the stand. Thus the trial judge and
               jury are the primary instrumentality of justice to determine the weight
               and credibility to be given to the testimony of witnesses. In the trial
               forum alone is there human atmosphere and the totality of the
               evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted

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defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

       Tennessee Code Annotated section 39-14-402, in pertinent part, defines the offense of
burglary:1

                 (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; [or]

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

        Utilizing the definitions of “theft,” Tenn. Code Ann. § 39-14-103, and “deprive,” Tenn.
Code Ann. § 39-11-106(a)(8)(A), the defendant argues that “[t]here was no evidence that [his]
picking up of the binoculars and watch withheld that property from [the victim] ‘permanently or for
such a period of time as to substantially diminish the value or enjoyment of the property.’” That may
be true, but the argument overlooks the fact that burglary can occur as the result of an unlawful entry
into a dwelling with the “intent to commit a . . . theft,” Tenn. Code Ann. § 39-14-402(a)(1), which
is what the indictment alleged.

        Considering the evidence in the light most favorable to the State, we conclude that there was
sufficient proof for the jury to convict the defendant of aggravated burglary. The evidence showed
that the victim’s locked back door was opened by the defendant and that he picked up items of value
as he walked through the residence. From this, the jury could reasonably conclude that the defendant
entered the victim’s dwelling, with the intent to commit theft and without the consent of the victim.

        This issue is without merit.

II. Instruction as to Criminal Trespass as a Lesser-Included Offense of Aggravated Burglary

         The defendant contends that criminal trespass is not a lesser-included offense of aggravated
burglary. He argues that he committed criminal trespass and that the evidence supports a conviction
for that offense rather than a conviction for aggravated burglary. He claims, however, that since the


        1
          Burglary of a habitation, of which the defendant was convicted, is proscribed by Tennessee Code Annotated
section 39-14-403 (a).

                                                       -4-
indictment did not charge him with criminal trespass and criminal trespass is not a lesser-included
offense of aggravated burglary, his conviction should be reversed.

        A person commits criminal trespass “who, knowing the person does not have the owner’s
effective consent to do so, enters or remains on property, or a portion thereof.” Tenn. Code Ann. §
39-14-405(a). The defendant asserts that criminal trespass does not meet the State v. Burns, 6
S.W.3d 453 (Tenn. 1999), definition for a lesser-included offense because all of the elements of
criminal trespass are not included in the elements of aggravated burglary.

        The State concedes that criminal trespass does not meet part (a) of the Burns test but cites
State v. George Redd, No. W2000-01620-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 631 (Tenn.
Crim. App., Jackson, Aug. 9, 2001), perm. to appeal denied (Tenn. Mar. 4, 2002), where this court
held that criminal trespass is a lesser-included offense of aggravated burglary under part (b) of the
test. The State further argues that any error in charging the jury on the lesser offense of criminal
trespass was harmless since the defendant was convicted of the greater offense.

        The claim that the offense was criminal trespass, rather than burglary, was injected into the
case by the defendant, himself, apparently wanting any conviction to be for a misdemeanor rather
than a felony, with which he was charged. We agree with the holding in George Redd that, under
part (b) of the Burns test, trespass is a lesser-included offense of aggravated burglary and, thus, the
trial court did not err in so charging. Further, a party cannot create error at the trial level and, then,
seek relief on appeal because of that error. See Tenn. R. App. P. 36(a).

                                           CONCLUSION

       Based upon the foregoing authorities and reasoning, the judgment of the trial court is
affirmed.



                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE




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