                                                                                    01/23/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs October 30, 2018

             STATE OF TENNESSEE v. ABBIE LEANN WELCH

                  Appeal from the Criminal Court for Knox County
                         No. 107201 G. Scott Green, Judge
                     ___________________________________

                          No. E2018-00240-CCA-R3-CD
                      ___________________________________


Defendant, Abbie Leann Welch, entered a Walmart store and stole merchandise after she
had received notification that she was banned from all Walmart properties. Defendant
was convicted at a bench trial of one count of misdemeanor theft and one count of
burglary. On appeal, Defendant argues that the burglary conviction should be dismissed
because the burglary statute, Tennessee Code Annotated section 39-14-402, does not
apply to entry into buildings open to the public. Upon our review, we hold that the
burglary statute is not unconstitutionally vague and affirm the judgments of the trial
court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE, J., joined. CAMILLE R. MCMULLEN, J., filed a separate opinion concurring in part
and dissenting in part.

Patrick T. Phillips, Knoxville, Tennessee, for the appellant, Abbie Leann Welch.

Herbert H. Slatery III, Attorney General and Reporter; Jeffery D. Zentner, Assistant
Attorney General; Charme Allen, District Attorney General; and Mitch Eisenberger,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                          Factual and Procedural Background

      On the afternoon of October 7, 2015, Defendant went to the East Towne Walmart
with her friends Krista Brooks and Tonya Cooper. Defendant and her friends discussed
their plan for Defendant to steal some merchandise and for Ms. Cooper to return the
items for a gift card. Ms. Brooks asked Defendant not to go to Walmart because she
knew that Defendant had “got[ten] in trouble there before.” Nevertheless, Defendant
entered the store while Ms. Brooks and Ms. Cooper waited in the van.

       When Defendant returned to the van, she gave the merchandise in her purse to Ms.
Cooper, who placed the items into a bag. Ms. Cooper and Ms. Brooks then entered the
store while Defendant remained in the van. Ms. Brooks went to the restroom while Ms.
Cooper went to the customer service area to return the items for a gift card. When Ms.
Brooks exited the restroom, two men asked her and Ms. Cooper to accompany them to
the loss prevention office. Defendant called Ms. Brooks’s phone, but Ms. Brooks did not
answer. Defendant then drove the van to the parking lot of a fast food restaurant in the
same shopping center where she was ultimately apprehended by police.

       Matthew Schoenrock, an asset protection officer for Walmart, observed “an
unidentified female quickly exiting the store with a large purse that looked to be full of
merchandise.” Suspicious of the woman’s demeanor, Mr. Schoenrock reviewed the
store’s surveillance video of the woman’s actions inside the store.1 Mr. Schoenrock was
able to identify Defendant because he was familiar with her from “prior incidents.” Mr.
Schoenrock “backtracked” the surveillance footage and observed Defendant “concealing
the merchandise into her purse that she had just selected off the shelves.” Defendant then
exited the store and got into a vehicle. After a few minutes, two women exited that
vehicle and entered the store with bags of merchandise. They went to the customer
service desk to return the items, and Mr. Schoenrock identified the items they pulled out
of the bags as the same “various clothing items” that Defendant had taken off of the
shelves. Mr. Schoenrock then called the police, and he and another asset protection
officer stopped the women as they were leaving the customer service area.

        Defendant was eventually apprehended by the police and brought to the loss
prevention office. Defendant admitted the theft to Mr. Schoenrock, apologized, and
admitted that “she knew that she had been trespassed before in the past.” Specifically, on
January 6, 2015, Mr. Schoenrock had issued Defendant a “trespass form.” The form is
entitled “Notification of Restriction from Property” and informs the recipient that “you
are no longer allowed on Walmart property,” including “all Walmart retail locations,”
and may “be charged with criminal trespass” for entering a Walmart property. Mr.
Schoenrock agreed that whether a person would be given a citation for trespassing as
opposed to a verbal warning would depend on how long they were in the store and
whether the police could get there in time.
        1
          The State informed the trial court that the video recording of Defendant’s actions inside the
store, as well as the recording of the van in the parking lot, was inadvertently not preserved. Only the
recordings of the transaction at the customer service desk and of the suspects inside the loss prevention
office were preserved and entered into evidence.
                                                   -2-
        On January 27, 2016, a Knox County grand jury indicted Defendant for one count
of misdemeanor theft of property and one count of burglary, a Class D felony. On May
10, 2016, Defendant filed a motion to dismiss the burglary charge, alleging that the
burglary statute was unconstitutionally vague as applied. Defendant waived her right to a
jury and proceeded to a bench trial on May 24, 2017, at which Ms. Brooks and Mr.
Schoenrock testified to the above facts. Defendant chose not to testify. After hearing the
proof, the trial court denied Defendant’s motion for judgment of acquittal and denied
Defendant’s motion to dismiss the burglary charge. The trial court found Defendant
guilty of burglary and misdemeanor theft. The trial court imposed a total effective
sentence of six years to be served on supervised probation.2 On January 26, 2018, the
trial court heard and denied Defendant’s motion for new trial. Defendant filed a timely
notice of appeal.

                                             Analysis

       As her sole issue on appeal,3 Defendant contends that her conviction for burglary
violates her constitutional right to due process of law. Defendant contends that the
conduct proved in this case—entering a business open to the public and shoplifting after
the receipt of a no trespass notification—does not meet the statutory definition of
burglary under Tennessee Code Annotated section 39-14-402 because burglary “is a
crime intended to protect from intruders in places where people expect to be free from
intrusion” and “there [is] no expectation of privacy in a public retail space.” Defendant
argues that the burglary statute is unconstitutionally vague as applied to the facts of this
case. Additionally, Defendant argues that the State arbitrarily exercised its discretion by
prosecuting an otherwise misdemeanor trespassing as a felony burglary. The State
responds that the plain language of the burglary statute, specifically subsection 402(a)(3),
“clearly makes punishable as a burglary the entry into a store from which one has
repeatedly been banned, to commit theft.”

       Statutory interpretation and the application of a statute to facts that are not in
dispute present a question of law, which this Court reviews de novo with no presumption
of correctness. Kyle v. Williams, 98 S.W.3d 661, 663-64 (Tenn. 2003). This Court also
reviews constitutional issues de novo. State v. Merriman, 410 S.W.3d 779, 791 (Tenn.
2013).



       2
           A probation violation warrant was issued during the pendency of Defendant’s motion for new
trial, and Defendant’s probation was revoked on February 16, 2018.
       3
          Defendant does not challenge the sufficiency of the evidence with regard to either of her
convictions. Thus, the facts of this case are undisputed.
                                                    -3-
        Under both the state and federal constitutions, a criminal statute cannot be
enforced when it prohibits conduct “in terms so vague that [persons] of common
intelligence must necessarily guess at its meaning and differ as to its application.” State
v. Pickett, 211 S.W.3d 696, 704 (Tenn. 2007) (quoting Leech v. Am. Booksellers Ass’n,
582 S.W.2d 738, 746 (Tenn. 1979)). “It is a basic principle of due process that an
enactment is void for vagueness if its prohibitions are not clearly defined.” Id. (quoting
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). A “vague statute is vulnerable
to a constitutional challenge because it (1) fails to provide fair notice that certain
activities are unlawful; and (2) fails to establish reasonably clear guidelines for law
enforcement officials and courts, which, in turn, invites arbitrary and discriminatory
enforcement.” Id. at 702. “The primary purpose of the vagueness doctrine is to ensure
that our statutes provide fair warning as to the nature of forbidden conduct so that
individuals are not ‘held criminally responsible for conduct which [they] could not
reasonably understand to be proscribed.’” State v. Crank, 468 S.W.3d 15, 22-23 (Tenn.
2015) (quoting United States v. Harriss, 347 U.S. 612, 617 (1954)).

        “A criminal statute must be construed according to the fair import of its terms
when determining if it is vague.” State v. Burkhart, 58 S.W.3d 694, 697 (Tenn. 2001).
“[I]t is the duty of the courts ‘to adopt a construction which will sustain a statute and
avoid constitutional conflict if its recitation permits such a construction.’” Id. at 697-98
(quoting State v. Lyons, 802 S.W.2d 590, 592 (Tenn. 1990)). The goal of statutory
construction is to give full effect to the legislature’s purpose, without exceeding the
statute’s intended scope. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010).

       We begin with the statute’s language and give the legislature’s chosen words their
natural and ordinary meaning. State v. Edmonson, 231 S.W.3d 925, 927 (Tenn. 2007).
“When a statute’s text is clear and unambiguous, the courts need not look beyond the
statute itself to ascertain its meaning.” Lee Med., Inc., 312 S.W.3d at 527. “Only an
ambiguity in the language of the statute will permit us to look behind its face to
determine the legislature’s intent.” State v. Powers, 101 S.W.3d 383, 393 (Tenn. 2003).
A statute is ambiguous if the language “is susceptible [to] more than one reasonable
interpretation.” Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504, 512 (Tenn. 2001).
This Court may presume that the legislature “used every word deliberately and that each
word has a specific meaning and purpose.” Lee Med., Inc., 312 S.W.3d at 527. “[W]here
the legislature includes particular language in one section of the statute but omits it in
another section of the same act, it is presumed that the legislature acted purposefully in
including or excluding that particular subject.” Edmonson, 231 S.W.3d at 927 (quoting
State v. Hawk, 170 S.W.3d 547, 551 (Tenn. 2005)).

       The crime of burglary is codified at Tennessee Code Annotated section 39-14-402.
This statute, which was enacted in 1989 and last amended in 1995, provides as follows:

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       (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;

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

       (4) Enters any freight or passenger car, automobile, truck, trailer, boat,
       airplane or other motor vehicle with intent to commit a felony, theft or
       assault or commits or attempts to commit a felony, theft or assault.

T.C.A. § 39-14-402(a) (emphasis added).

       Defendant’s argument focuses on whether the term “building” as used in
subsection (a)(3) is limited to places “not open to the public” as it is in subsection (a)(1).
According to Black’s Law Dictionary, the term “building” is defined as a “structure with
walls and a roof, esp. a permanent structure.” Building, Black’s Law Dictionary 194-95
(10th ed. 2014); see Edmondson, 231 S.W.3d at 928 (stating that when the legislature
does not provide a specific definition for a statutory term, courts may look to other
sources, such as dictionary definitions, for guidance). Defendant relies on dicta from this
Court’s opinion in State v. Danielle Chandria Jensen, which was subsequently vacated
by the Tennessee Supreme Court on procedural grounds, for the contention that
subsection (a)(3) of the burglary statute was not intended to cover buildings open to the
public. See No. M2016-01553-CCA-R10-CD, 2017 WL 3671093 at *9-10 (Tenn. Crim.
App. Aug. 25, 2017) (citing Jonathan Harwell, Burglary at Wal-Mart: Innovative
Prosecutions of Banned Shoplifters Under Tenn. Code Ann. § 39-14-402, 11 Tenn. J. L.
& Pol’y 81, 99-103 (2016)), perm. app. granted, judgment vacated (Tenn. Dec. 8, 2017).
However, a different panel of this Court has recently held that the term “building” as used
in subsection (a)(3) is not ambiguous and follows its “natural and ordinary meaning.”
State v. Nikia Bowens, No. E2017-02075-CCA-R3-CD, 2018 WL 5279374, at *7 (Tenn.
Crim. App. Oct. 23, 2018), perm. app. filed; State v. Jason Kane Ivey, No. E2017-02278-
CCA-R3-CD, 2018 WL 5279375, at *8 (Tenn. Crim. App. Oct. 23, 2018), perm. app.
filed. We agree that the legislature’s inclusion of the phrase “not open to the public” in
subsection (a)(1) and omission of that phrase from subsection (a)(3) was purposeful and
does not alter the plain meaning of the term “building” in subsection (a)(3). Indeed, the
Sentencing Commission Comments to the burglary statute state that “[t]his section . . .
applies only to intrusions involving buildings that are not habitations[,]” clarifying that
                                             -5-
“not habitations” applies to the entire statute but making no further distinction between
buildings open to the public and those not open to the public. T.C.A. § 39-14-402, Sent.
Comm’n Cmts.; see T.C.A. § 39-14-403 (defining aggravated burglary as the burglary of
a habitation).

       Thus, the statute is clear that when a person enters any building that is not a
habitation, including one otherwise open to the public, without the effective consent of
the owner and commits or attempts to commit a felony, theft, or assault therein, they may
be prosecuted for burglary pursuant to Tennessee Code Annotated section 39-14-
402(a)(3). We disagree with Defendant’s contention that the burglary statute reaches
only places where the owner has an expectation of privacy from the public at large.
Though Walmart and other retail establishments may generally consent to entry by
members of the public at large during normal business hours, such consent is clearly
revoked when an individual has been notified in writing that they are no longer allowed
on the property. See Nikia Bowens, 2018 WL 5279374, at *11 (citing State v. Ash, 12
S.W.3d 800, 803 (Tenn. Crim. App. 1999)) (concluding that an owner of a building that
is otherwise open to the public can revoke its consent for a particular person to enter). A
non-consensual entry, which may begin as merely a misdemeanor trespass, becomes a
felony burglary when the banned individual proceeds to commit or attempt to commit a
felony, theft, or assault. Unlike subsection (a)(1), the banned individual need not have
intended to commit a felony, theft, or assault at the time of entry under subsection (a)(3).
A person of common intelligence is not forced to speculate about the conduct prohibited
by Tennessee Code Annotated section 39-14-402(a)(3); thus the statute is not
unconstitutionally vague. See Nikia Bowens, 2018 WL 5279374, at *7; Jason Kane Ivey,
2018 WL 5279375, at *8.

        Defendant further argues that the statute is unconstitutionally vague due to the
arbitrary exercise of prosecutorial discretion. According to Defendant, the “personal
predilections” of the Knox County District Attorney “ha[ve] upended decades of routine
practice in Knox County and statewide” by “mak[ing] a misdemeanor offense of criminal
trespass into a felony.” See Burkhart, 58 S.W.3d at 699 (“Due process also provides that
a criminal law may be facially vague if it authorizes and encourages arbitrary and
discriminatory enforcement.”). However, the fact that “a statute has been interpreted in a
particular way for a period of time does not bar a new interpretation” that is consistent
with the plain language of the statute. Nikia Bowens, 2018 WL 5279374, at *7; see State
v. Gentry, 538 S.W. 3d 413, 426 (Tenn. 2017) (holding that the theft statute “is broad
enough to encompass theft of real property” almost 30 years after the comprehensive
revision of the statute). That prosecutors have not routinely charged repeated shoplifters
with burglary for the commission of a subsequent theft from the store from which they
were banned does not prevent their ability to do so under the plain language of Tennessee
Code Annotated section 39-14-402(a)(3).

                                            -6-
        Defendant also cites to the recent amendment of the shoplifting statute, which
increases the punishment for a fifth or subsequent conviction in a two-year period by one
classification, as evidence that the legislature did not intend for repeat shoplifters to be
charged with burglary. See T.C.A. § 39-14-146(c). We also find this argument
unpersuasive. A person may be subject to enhanced punishment under the shoplifting
statute even if each of the prior shoplifting offenses occurred at a different store and even
if they have not been banned from the store from which they shoplifted. On the other
hand, a privately-owned business may ban an individual from the premises for reasons
other than shoplifting, such as fighting or drug use, or may choose to simply ban a
shoplifter rather than prosecute them criminally. Additionally, the burglary statute
applies to more than just repeat shoplifters, such as those who enter a building without
the effective consent of the owner and commit or attempt to commit an assault or a
felony. Regardless of the reason for the ban or whether a person has the requisite number
of prior convictions for shoplifting, a person who enters a building without the effective
consent of the owner and commits or attempts to commit a felony, theft, or assault may
be prosecuted for burglary under the plain language of Tennessee Code Annotated
section 39-14-402(a)(3). If that person has four or more prior convictions for shoplifting
in a two-year period, they may also be subject to enhanced punishment under Tennessee
Code Annotated section 39-14-146(c). Thus, there is no conflict between the repeat
shoplifting statute and the burglary statute. See State v. Turner, 193 S.W.3d 522, 526
(Tenn. 2006) (noting that statutes should be construed harmoniously so as not to
conflict).

                                        Conclusion

      We conclude that Tennessee Code Annotated section 39-14-402(a)(3) is not
unconstitutionally vague. Therefore, we affirm the judgments of the trial court.


                                          ____________________________________
                                          TIMOTHY L. EASTER, JUDGE




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