        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        JANUARY SESSION, 1997


STATE OF TENNESSEE,         )    C.C.A. NO. 02C01-9508-CR-00237
                            )
      Appellee,             )
                            )
                            )    SHELBY COUNTY
                                                             FILED
VS.                         )                                  April 11, 1997
                            )    HON. JOSEPH B. DAILEY
THEODORE F. HOWARD,         )    JUDGE               Cecil Crowson, Jr.
                            )                                Appellate C ourt Clerk

      Appe llant.           )    (AGGRAVATED BURGLARY)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

DANIEL FLATT                     CHARLES W. BURSON
Assistant Public Defender        Attorney General & Reporter
201 Poplar - Suite 2-01
Memphis, TN 38103

TONY BRAYTON                     CLINT ON J. M ORG AN
Assistant Public Defender        Assistant Attorney General
201 Poplar - Suite 2-01          450 James Robertson Parkway
Memphis, TN 38103                Nashville,TN 37243-0493

                                 JOHN W. PIEROTTI
                                 District Attorney General

                                 DAVID HENRY
                                 Assistant District Attorney General
                                 District Attorney General’s Office
                                 201 Poplar Avenue, 3rd Floor
                                 Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION
       The appe llant, T heod ore F. H oward , appe als as of right pursu ant to R ule

3 of the Tennessee Rules of Appellate Procedure. The Appellant was convicted

of aggrava ted burg lary in the S helby C ounty C riminal C ourt. The Appellant was

sentenced by the trial court to serve fifteen (15) years as a Range III Career

Offender. The sole issue the Ap pellan t raises for app eal is whether the trial cou rt

erred in failing to instruct the jury on the lesser offense of burglary. We affirm the

judgm ent of the tria l court.



       At about 10:00 a.m. on September 4, 1994, a neighbor to the house

located at 1155 Central Avenue in Memphis heard a loud banging noise. The

neighbor and his wife went to their back door and observed a man, who they later

identified as the Appellant, breaking out a window on the back door of the house

with a brick. The property known as 1155 Central Avenue was then in the

possession of United American Bank due to a foreclosure on the property. The

house on that property had been vacant for approxim ately two m onths p rior to

September 4, 1994 . No one other tha n the ba nk’s age nts had permis sion to

enter or take any property from 1155 Central Avenue. The neighbors saw the

Appellant enter the hous e. The neigh bors notified the police, and the n the wife

and another neighbor waited at the fron t of the h ouse while her husband, armed

with a sho tgun, wa ited at the b ack of the house for the police to arrive.



       The Appella nt attem pted to lea ve the ho use with a ceiling fan, but then saw

the neighbor waiting at the back of the house. The Appellant put the fan down

in the doo rway of the house . The neighbor waiting in the back told the Appellant



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the police were on their way and to stop, but the Appellant proceeded to go

around the side of the house. The neighbor observed what appeared to be a

shiny weapon in the Appellant’s hand, and he followed the Appellant to the front

of the house. He told the Appellant to put his weapon down and to get down on

the sid ewalk . The A ppella nt com plied a nd wa s held there by the neighbor until

the police arrived. The police officer who arrived took the Appellant into custody

based upon the information of the witnesses. Appellant gave a statement to the

police, introdu ced in to evide nce, in which he ad mitted break ing into the house,

taking the fan, and being caught and detained by the neighbors until the police

arrived.



                                          I.



      The issue Appellant raises for this Court’s review is whether the trial court

committed reversible e rror by failing to charge the jury with the instruction for the

lesser included offense of burglary. Only when there is some evidence upon

which reasonable minds could convict the defendant of a particular lesser offense

is the court required to instruct reg arding th at offense . Johns on v. State, 531

S.W.2d 558, 559 (Tenn. 1975); State v. Atkins, 681 S.W.2d 571, 577 (Tenn.

Crim. App. 19 84), cert. denied, 470 U.S. 1028 (1985).          The practice of so

charging, when there is no evidence to support any lesser includ ed offe nses , is

not favored. 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).



      Various evidence was presented at trial by the State to prove that the

building was a habitation. First, an employee of the United American Bank, who

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worked in the special asset department handling foreclosures and repossessions,

testified that the house at 1155 Cent ral Ave nue w as a sin gle-fam ily reside nce in

a reside ntial are a of Me mph is. This emplo yee also stated tha t the prop erty was

not occup ied at the time of this burglary. A second witness, a neighbor living

behind the property at 1155 Central Avenue, testified that the house was em pty

for approxim ately two m onths p rior to the time of the burglary. Other evidence

as to the nature of the house at 1155 Central was presented in the form of

photographs of the sing le-family res idence . No proo f that the house was not

desig ned a s a fam ily reside nce w as offe red at tr ial.



       The Appellant contends that because the house at 1155 Central Avenue

was vacant at the time the Appellant entered the house, the trial cour t erred in its

failure to instruct the jury on burglary. According to Tenn. Code Ann. § 39-14-

403, a person commits aggravated burglary when he or she commits burglary of

a habitation as defined in Tenn. Code Ann. § § 39-14-401 and 39-1 4-402. A

“habitation” is defined as “ . . . any structure, including buildings, mobile homes,

trailers and tents, which is designed or adapted for the overnight accommodation

of persons . . .” Tenn. Code A nn. § 39-14-4 01(1)(A). “A person com mits burglary

who, without the effective consent of the property owner enters a building, other

than a habitatio n (or any p ortion there of) not op en to the p ublic, with inte nt to

comm it a felony, theft or assault . . . .” Tenn. Co de Ann. § 3 9-14-402(a )(1).



       The appellant further argues that at some point after a house is unoccupied

the house ce ases to be a habitation. After the legislature rewrote the criminal

code in 1989, there ceased to be any requirement that the structure be occupied

at the time of the burglary in order for the structure to be considered a habitation.

                                            -4-
State v. Ja mes F ord, III, No. 02C01-9304-CR-00078, Shelby County (Tenn.

Crim. App., Jackson, filed Augu st 3, 1994 ), perm. to appeal denied (Tenn. 199 5).

In Ford, the defendant was convicted of aggravated burglary of a house which

was vacant. This Court held that the hous e that w as bu rglarize d was obviou sly

designed for overnight accommodation and w as clea rly a “ha bitation .” From all

testimony and other pictorial evidence within the record, the house which was

entered by the Appellant was obviously designed for overnight accommodation

and, the refore, wa s within the Legislatu re’s definition of a “hab itation.”



       As the evidence is clear as to the nature of the habitation which the

Appellant admittedly entered, the issue of the court’s failure to give an

instruction on the les ser offen se of bur glary is witho ut merit.



       We affirm the c onviction o f the trial court.


                                   ____________________________________
                                   THOMAS T. WOODALL, JUDGE

CONCUR:


___________________________________
JOE B. JONES, Presiding Judge


___________________________________
PAUL G. SUMMERS , Judge




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