         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 10, 2002

                STATE OF TENNESSEE v. DONALD R. MOBBLEY

                       Appeal from the Criminal Court for Shelby County
                           No. 00-13852    Joseph B. Dailey, Judge



                   No. W2002-00202-CCA-MR3-CD - Filed October 22, 2002


A Shelby County Criminal Court jury convicted the defendant, Donald R. Mobbley, of burglary, a
Class D felony, and the trial court sentenced him as a Range I, standard offender to two years in the
workhouse. The defendant appeals, claiming that the evidence is insufficient to support his
conviction and that the trial court erred by failing to instruct the jury on theft of property as a lesser
included offense. We hold that the evidence is sufficient and that theft is not a lesser included
offense of burglary. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G.
RILEY, JJ., joined.

AC Wharton, Jr., District Public Defender; Tony N. Brayton, Assistant Public Defender (on appeal);
and Mary Katherine Kent, Assistant Public Defender (at trial), for the appellant, Donald R. Mobbley.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Stephen P. Jones, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

         This case relates to a break-in at the Mars Hill Missionary Baptist Church in Memphis.
Reverend Charlie Jackson testified that about 3:00 a.m. on August 16, 2000, he was at home asleep
when he received a telephone call from the church’s security monitoring service. Someone from the
service told him that the church’s alarm had gone off and that the police had been dispatched to the
scene. About ten minutes later, someone from the security service telephoned Reverend Jackson
again and told him that the police needed him at the church. When he arrived about twenty minutes
later, he unlocked the door, and the officers sent a police dog into the church. When the dog came
out, Reverend Jackson went inside and turned on the lights. He noticed that a window had been
broken and that glass was on the floor. According to Reverend Jackson, the window was thirty-
seven inches tall and eleven inches wide. Reverend Jackson looked around the church to see if
anything was missing. Although there were other valuable items in the church, the only thing that
had been taken was a white oscillating fan that sat on a desk in the pastor’s study.

        Reverend Jackson told the officers that the fan was missing. About five minutes later, the
officers went outside and got the fan out of a patrol car. A man was sitting in the back of the car.
Reverend Jackson testified that he did not know the defendant and that the defendant did not have
permission to be in the church.

        Officer Michael S. Huff of the Memphis Police Department testified that about 3:15 a.m. on
October 16, he was dispatched to the Mars Hill Missionary Baptist Church. When he received the
dispatch, he was about one and one-half miles from the church. As Officer Huff drove west on
Shelby Drive, he passed a thin African-American male walking east and carrying a white fan.
Although Officer Huff thought it was unusual for someone to be walking on the street at that time
of day, he did not stop the man because he wanted to get to the church. When he arrived at the crime
scene, he saw that a window had been broken out. Officer Huff secured the church and called
Officer Mervin Jones on the police radio. He told Officer Jones that an African-American male was
carrying a white fan and walking east on Shelby Drive and that Officer Jones needed to find and
detain the man. Officer Jones arrested the defendant and brought him to the church.

       Officer Huff testified that when Reverend Jackson arrived at the church, they went inside.
Reverend Jackson looked around for a few minutes and told the officers that a white fan was
missing. The officers went to the patrol car and got the fan that the defendant had been carrying.
Reverend Jackson identified the fan as the one that had been taken from the church office. In Officer
Huff’s opinion, the defendant could have fit through the broken church window.

       On cross-examination, Officer Huff testified that he was driving about sixty miles per hour
when he passed the man on Shelby Drive. The church was on the north side of Shelby Drive, and
the man was walking on the north side of the street. Officer Huff saw the man near a streetlight.
Officer Huff did not see any distinguishing marks, such as a name, on the fan.

        Officer Mervin Jones of the Memphis Police Department testified that about 3:00 a.m. on
October 16, he was dispatched to the Mars Hill Missionary Baptist Church. As he was driving west
toward the church, he passed the defendant, who was walking east and carrying a white fan. As
Officer Jones approached the church, Officer Huff radioed and told him that a man was walking
down the street carrying a fan. Officer Jones went back to find the defendant. However, the
defendant was no longer walking on Shelby Drive. Officer Jones turned onto Ford Street and saw
the defendant. He stopped the defendant, put the defendant into the back of his patrol car, and drove
to the church.

      According to Officer Jones, when he arrived at the church, he left the defendant in the car
and went into the church with Officer Huff and Reverend Jackson. Officer Jones did not tell
Reverend Jackson that he had arrested the defendant. Reverend Jackson looked around the church


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and told the officers that a white fan was missing. Officer Jones and Reverend Jackson went out to
the patrol car and Officer Jones showed him the fan. Reverend Jackson identified the fan as the one
that was missing from the church. Officer Jones thought he remembered identifying marks, such as
someone’s initials, being on the fan. He believed that the defendant could have fit through the
church window.

       On cross-examination, Officer Jones testified that when he first saw the defendant, the
defendant was about thirty yards from the church. The defendant was not running and did not run
when Officer Jones stopped him on Ford Street. The defendant was cooperative when Officer Jones
put him in the patrol car.

        Officer Alvin Peppers, a crime scene technician for the Memphis Police Department, testified
that on October 16, he was dispatched to the Mars Hill Missionary Baptist Church. When he arrived,
he saw that a window on the east side of the church had been broken out. Officer Peppers did not
collect any evidence and was unable to lift any fingerprints from the crime scene. He did not recall
seeing any blood or torn clothing near the window or any objects that could have been used to break
it. The defendant did not put on any proof, and the jury found him guilty of burglary.

        First, the defendant contends that the evidence is insufficient to support his conviction.
Specifically, he claims that the state presented no evidence that he had been inside the church. The
state claims that the evidence is sufficient. We agree with the state.

        Our standard of review when the defendant questions the sufficiency of the evidence on
appeal 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 (1979). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       Circumstantial evidence alone may be sufficient to support a conviction. State v. Richmond,
7 S.W.3d 90, 91 (Tenn. Crim. App. 1999); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App.
1988).

               The law is firmly established in this State that to warrant a criminal
               conviction upon circumstantial evidence alone, the evidence must be
               not only consistent with the guilt of the accused but it must also be
               inconsistent with his innocence and must exclude every other
               reasonable theory or hypothesis except that of guilt, and it must
               establish such a certainty of guilt of the accused as to convince the
               mind beyond a reasonable doubt that he is the one who committed the
               crime.


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Pruitt v. State, 3 Tenn. Crim. App. 256, 267, 460 S.W.2d 385, 390 (1970). While following these
guidelines, we must note that the jury decides the weight to be given to circumstantial evidence and
that the “‘inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.’” Marable
v. State, 203 Tenn. 440, 452, 313 S.W.2d 451, 457 (1958) (quoting 2 Wharton’s Criminal Evidence
1611).

       As charged in the indictment, a burglary is committed when a person enters a building
without the consent of the owner with the intent to commit a theft. Tenn. Code Ann. §
39-14-402(a)(1). A person commits theft “if, with the 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.

        Viewed in the light most favorable to the state, the evidence shows that the defendant
burglarized the Mars Hill Missionary Baptist Church. Officer Jones testified that he was dispatched
to the scene of a break-in at the church about 3:00 a.m. on August 16. As he was driving toward the
church, he passed the defendant, who was about thirty yards from the church and carrying a white
fan. Officer Jones later arrested the defendant and took him to the church. When Reverend Jackson
told Officer Jones that a white fan was missing from the church office, Officer Jones showed
Reverend Jackson the fan that the defendant had been carrying. Reverend Jackson identified the fan
as the one that had been taken. Although there was no direct evidence that the defendant entered the
church, we believe that a rational jury could conclude beyond a reasonable doubt that the defendant
broke the church window and entered the church with the intent to take the church’s property. The
evidence is sufficient to support the conviction.

        The defendant also claims that theft is a lesser included offense of burglary under part (a) of
the test set out in State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999), and that the trial court
committed plain error by failing to instruct the jury on that offense. The state contends that while
theft may be a lesser included offense of burglary, the trial court did not err because it instructed the
jury on theft. Moreover, the state claims that even if the trial court erred by failing to instruct the
jury specifically on the misdemeanor offense of theft of property less than five hundred dollars, the
error was harmless under State v. Williams, 977 S.W.2d 101 (Tenn. 1998), because the jury chose
to convict the defendant of the greater offense of burglary. We conclude that the defendant is not
entitled to relief because theft is not a lesser included offense of burglary.

        In criminal cases, the trial court has the duty to charge the jury on all of the law that applies
to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). Anything short of a
complete charge denies the defendant his constitutional right to a trial by jury. See State v. McAfee,
737 S.W.2d 304, 308 (Tenn. Crim. App. 1987). Our supreme court has held that an offense is a
lesser included offense if:

                (a) all of its statutory elements are included within the statutory
                elements of the offense charged; or


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                (b) it fails to meet the definition in part (a) only in the respect that it
                contains a statutory element or elements establishing

                        (1) a different mental state indicating a lesser kind of
                        culpability; and/or

                        (2) a less serious harm or risk of harm to the same
                        person, property or public interest; or

                (c) it consists of

                        (1) facilitation of the offense charged or of an offense
                        that otherwise meets the definition of lesser-included
                        offense in part (a) or (b); or

                        (2) an attempt to commit the offense charged or an
                        offense that otherwise meets the definition of
                        lesser-included offense in part (a) or (b); or

                        (3) solicitation to commit the offense charged or an
                        offense that otherwise meets the definition of
                        lesser-included offense in part (a) or (b).

Burns, 6 S.W.3d at 466-67. If an offense is a lesser included offense, then the trial court must
conduct the following two-step analysis in order to determine whether the lesser included offense
instruction should be given:

                First, the trial court must determine whether any evidence exists that
                reasonable minds could accept as to the lesser-included offense. In
                making this determination, the trial court must view the evidence
                liberally in the light most favorable to the existence of the
                lesser-included offense without making any judgments on the
                credibility of such evidence. Second, the trial court must determine
                if the evidence, viewed in this light, is legally sufficient to support a
                conviction for the lesser-included offense.

Id. at 469. “As a general rule, evidence sufficient to warrant an instruction on the greater offense
also will support an instruction on a lesser offense under part (a) of the Burns test.” State v. Allen,
69 S.W.3d 181, 188 (Tenn. 2002).

        Initially, we note that although the defendant failed to include the transcript of the jury charge
with the record on appeal, the trial court’s written instructions are part of the record. As the state
points out in its brief, the instructions show that the trial court instructed the jury on theft. However,


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we believe that the instructions reflect that the trial court instructed the jury on theft as it relates to
the intent to commit the theft element of burglary, not as a lesser included offense of burglary.
Therefore, the state’s contention that the trial court instructed the jury as to the lesser included
offense of theft is incorrect.

        In any event, our supreme court has held that theft is not a lesser included offense of burglary.
See State v. Davis, 613 S.W.2d 218, 221 (Tenn. 1981); see also State v. Roberts, 943 S.W.2d 403,
407 (Tenn. Crim. App. 1996), overruled on other grounds by State v. Ralph, 6 S.W.3d 251 (Tenn.
1999). Although these cases were decided before Burns, we glean nothing from the Burns test that
would cause us to determine that theft is a lesser included offense of burglary. We conclude that
the defendant was not entitled to a jury instruction on theft and, therefore, that the trial court did not
commit plain error by failing to instruct the jury on that offense. See T.R.A.P. 52(b).

        Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                         ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE




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