                                                                                              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
                        ___________________________________


CAMILLE R. MCMULLEN, J., concurring in part and dissenting in part.

       I write separately in this case to note my concerns and to reiterate that “burglary is
a serious offense with serious consequences. . . . [It] is no petty crime.” State v. Office
of the Public Defender ex rel. Muqqddin, 285 P.3d 622, 636 (N.M. 2012). The facts are
simple and not in dispute. The Defendant, who previously had been banned from a retail
store, entered the same retail store and shoplifted several clothing items valued under
$100. Minutes later, the Defendant’s friends returned the stolen items in exchange for a
store gift card or credit. This factual scenario is ordinarily prosecuted as a criminal
trespass and shoplifting/theft, both misdemeanor offenses with a penalty of no more than
eleven months and twenty-nine days. See, e.g., State v. Constance Elaine Archer, No.
M2012-00154-CCA-R3-CD, 2012 WL 5188079, at *1 (Tenn. Crim. App. Oct. 19, 2012).
Remarkably, the Defendant here was charged with and convicted of theft by shoplifting
as described above and burglary, a felony with a penalty of two to twelve years
imprisonment.

        As a former prosecutor, I recognize and respect that “prosecutorial discretion in
the charging process is very broad.” State v. Superior Oil, Inc., 875 S.W.2d 658, 660
(Tenn. 1994) (footnote and internal quotation marks omitted). Chief Justice Henry
acknowledged that the office of district attorney general “‘[i]n a very real sense, . . . is the
most powerful office in Tennessee today. Its responsibilities are awesome[, and] the
potential for abuse is frightening.’” Pace v. State, 566 S.W.2d 861, 867 (Tenn. 1978)
(Henry, C.J., concurring) (quoting Dearborne v. State, 575 S.W.2d 259, 262 (Tenn.
1978)). Prosecutors, however, are not without constitutional restraint. Though often
forgotten, “[d]ue process, at its most basic level, ‘mean[s] fundamental fairness and
substantial justice.’” State v. White, 362 S.W.3d 559, 566 (Tenn. 2012) (quoting Vaughn
v. State, 456 S.W.2d 879, 883 (Tenn. Crim. App. 1970)); see Bush v. State, 428 S.W.3d
1, 22 (Tenn. 2014) (“Due process itself ‘embodies the concepts of fundamental fairness,’
justice, and ‘the community’s sense of fair play and decency.’” (quoting Whitehead v.
State, 402 S.W.3d 615, 623 (Tenn. 2013)). Due process functions to constrain “‘both the
procedures used by the government and the substance of legislation interfering with
personal liberties.’” White, 362 S.W.3d at 566 (quoting 2 Chester James Antieau &
William J. Rich, Modern Constitutional Law § 40.00, at 558 (2d ed. 1997)). In my view,
when an individual, like the Defendant, is charged with burglary, a Class D felony, and
fundamental fairness requires that this individual be charged with the misdemeanors of
shoplifting and criminal trespass, prosecutors violate procedural due process by abusing
their charging discretion and by unilaterally and unreasonably expanding the reach of the
burglary statute. By charging individuals in this way, prosecutors are creating an
enhanced penalty for shoplifters and petty thieves who have been banned from retail
stores. However, only the Tennessee General Assembly has the power to define the acts
that will constitute a criminal offense and to determine the appropriate punishment for a
particular crime. With these types of prosecutions, I believe prosecutors are supplanting
their will for that of the Tennessee legislature.

        In fact, the burglary statute’s application to shoplifting cases in this way is wholly
at odds with recent legislative enactments, including the amendments to Code sections
39-14-105 and 39-14-146. On January 1, 2017, Tennessee Code Annotated section 39-
14-105 was amended to provide that theft of property or services is a Class A
misdemeanor if the value of the property or services obtained is $1000 or less, rather than
the previous threshold of $500 or less. See T.C.A. § 39-14-105(a)(1). Additionally, on
July 1, 2017, Code section 39-14-146, the shoplifting statute, was amended to add
subsection (c), which provides that “[n]otwithstanding any other law, a fifth or
subsequent conviction in a two-year period shall be punished one (1) classification higher
than provided by § 39-14-105, and subject to a fine of not less than three hundred dollars
($300) nor more than the maximum fine established for the appropriate offense
classification.” See id. § 39-14-146(c). These amendments evince an understanding that
shoplifting is a petty, non-violent property offense that should not be punished as harshly
as burglary.

       Also problematic is the fact that the burglary statute’s application to the
Defendant, that of a shoplifter previously banned from a retail store, bears no relationship
to the common law’s and the Model Penal Code’s definition of burglary. At common
law, the offense of burglary involved the breaking and entering another’s dwelling at
night with the intent to commit a felony. Davis v. State, 43 Tenn. 77, 80 (Tenn. 1866).
While Section 221.1 of the Model Penal Code expanded the common law definition of
burglary to cover “building[s] or occupied structure[s,]” it reiterated that a person could
not be convicted of both burglary and the underlying offense unless the underlying
offense “constitute[d] a felony of the first or second degree.” Model Penal Code § 221.1.
The explanatory note for Section 221.1 recognized that the continued survival of the
offense of burglary “reflect[ed] a considered judgment that especially severe sanctions
are appropriate for criminal invasion of premises under circumstances likely to terrorize
occupants.” Model Penal Code § 221.1, Explanatory Note for Sections 221.1 and 221.2.

                                             -2-
        Application of the burglary statute to shoplifting cases like this simply runs
counter to the time-honored belief that burglary is meant to punish a harmful entry. See
State v. Archuleta, 346 P.3d 390, 392 (N.M. Ct. App. 2014) (citing Muqqddin, 285 P.3d
at 624). As reflected in the historical development of this offense, “burglary has a greater
purpose than merely protecting property[,]” and “[i]t is the invasion of privacy and the
victim’s feeling of being personally violated that is the harm caused by the modern
burglar, and the evil that our society is attempting to deter through modern burglary
statutes.” Muqqddin, 285 P.3d at 632 (emphases added); cf. State v. Martinez, 832 P.2d
331, 336 (Idaho Ct. App. 1992) (observing that the defendant “was not sentenced for
misdemeanor injury to property, but for the more serious invasion of privacy and security
represented by the crime of burglary”). Unlike an individual who owns a building closed
to the public, a retail store such as Walmart does not have its privacy invaded and is not
terrorized or personally violated when a banned individual commits the offense of
shoplifting or theft within one of its stores.

       Fundamental fairness requires that there be a reasonable relationship between the
act committed (including the value of the property stolen and the harm involved), the
offense charged, and the crime for which the defendant stands convicted. See
Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978) (recognizing that a prosecuting
attorney’s discretion “carries with it the potential for both individual and institutional
abuse” and that while a prosecutor’s discretion is broad, “there are undoubtedly
constitutional limits upon its exercise”). In my view, because the offenses of shoplifting
and criminal trespass more than adequately address the harm involved when a banned
individual commits an act of shoplifting, application of the burglary statute in cases like
this violates procedural and substantive due process. For all these reasons, I would
reverse and vacate Welch’s conviction for burglary.



                                                  _________________________________
                                                  CAMILLE R. MCMULLEN, JUDGE




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