The Knox County District Attorney General’s office started charging individuals with the crime of burglary, a D Felony offense, in mid-2016, purportedly as a means to crack down on repeat shoplifters. The theory goes that when a person enters a building (other than habitation), without the effective consent of the owner, and with the intent to commit (or actually commits) a felony, theft, or assault, then that person commits a burglary under T.C.A. 39-14-402(a)(3).
This theory was put in to practice by using stores’ “No Trespass” lists. Stores have the absolute right to tell an individual that they are not allowed back on to the stores’ (respective) property – usually because that individual was attempting to shoplift. In effect, the store has then expressly withdrawn its “consent” for a person to enter its building. The building, not being someone’s home, qualifies as “other than habitation.” The logical conclusion then is that when a person enters the store and shoplifts (or attempts to do so), then that person has committed a burglary under T.C.A. 39-14-402(a)(3).
A case out of Putnam County has now gone through the Court of Criminal Appeals – State of Tennessee v. Danielle Chandria Jensen. No. M2016-01553-CCA-R10-CD addressing this subject. It is important to note that this appellate case did not over turn a conviction; it upheld the trial court’s dismissal of the charge on the basis of prosecutorial vindictiveness. However, the appellate court judge noted that absent prosecutorial vindictiveness, charging individuals with burglary of a business while it is open to the public is a violation of due process:
“The legislative history strongly implies that subsection (a)(3) of Tennessee’s burglary statute was never intended to cover buildings open to the public, like Wal-Mart. By charging individuals with burglary, a Class D felony, when they should only be prosecuted for misdemeanor theft or shoplifting, prosecutors are abusing their charging discretion by unilaterally and unreasonably expanding the reach of the burglary statute. While the maximum sentence for a misdemeanor theft or shoplifting conviction is eleven months and twenty-nine days in the local jail, even for a repeat offender, the sentence range for a person convicted of burglary is two to twelve years in prison. See T.C.A. §§ 39-14-103, -105, -146, -402; XX-XX-XXX(b)(4), (e)(1). Our review of the legislative history of the burglary statute shows that charging of burglary in these instances is unreasonable, unjust, and violative of due process. For all of these reasons, we affirm the trial court’s dismissal of the burglary charge in this case.”
If you have been charged with burglary of a business – Wal-Mart, Kroger, Target, etc. etc. – that was open to the public at the time of the alleged offense, my advice is to take it to trial. It is not often that the court of appeals would use such strong language, as like that cited above, in a unanimous decision. Additionally, if one pleads guilty in a scenario such as these, the individual may not be able to enjoy relief if convictions are later overturned by the courts – thus the necessity of a trial, in my view.
I will argue this issue before Judge Steve Sword on Friday, September 8, 2017.
Written by: J. Christian Stadler, III
