IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 29, 2019 Session

STATE OF TENNESSEE v. LARRY CHARLES HEFNER, JR.

Appeal from the Criminal Court for Knox County

No. 111177 Bobby R. McGee, Judge

___________________________________

No. E2018-01164-CCA-R3-CD

___________________________________

Defendant, Larry Charles Hefner, Jr., was convicted following a jury trial of Class D 

felony burglary. The trial court sentenced Defendant as a career offender to twelve years 

to be served on community corrections. On appeal, Defendant claims that “burglary is 

applicable only to entry into buildings ‘not open to the public,’” that the trial court failed 

to instruct the jury on the lesser included offense of attempted theft, and that the trial 

court failed to properly instruct the jury as to the elements of burglary. After a thorough 

review of the record, the briefs, and applicable law, we affirm the judgment of 

conviction. 

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN 

EVERETT WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.

Mark E. Stephens, District Public Defender, Jonathan Harwell, Assistant Public 

Defender, for the appellant, Larry Charles Hefner, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant 

Attorney General; Charme Allen, District Attorney General; and Ta Kisha Fitzgerald, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

PROCEDURAL AND FACTUAL BACKGROUND

The Indictment

The Knox County Grand Jury indicted Defendant for one count of Class D felony 

burglary. The indictment alleged that Defendant “did unlawfully and knowingly enter a 

07/02/2019
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building without the effective consent of the owner, Walmart, and did attempt to commit 

a theft, in violation of T[ennessee] C[ode] A[nnotated] [section] 39-14-402[.]1” 

January 8, 2018 Jury Trial

Steve Smartt, a Walmart asset protection associate, encountered Defendant on 

April 13, 2017, at the Walmart on Clinton Highway in Knoxville. Mr. Smartt observed 

Defendant select five pairs of scrubs, conceal them in his pants, and proceed to the exit. 

Mr. Smartt and another Walmart employee confronted Defendant and escorted him to an 

office where Defendant removed the scrubs from his pants and placed them on a counter. 

Mr. Smartt checked Defendant’s name with Walmart’s shoplifter database, determined 

that he had been caught shoplifting on several previous occasions, and contacted the 

Knoxville Police Department (KPD). Mr. Smartt identified a “Notification of Restriction 

from Property” (“the first notification”) that Defendant had signed and acknowledged 

receiving on January 22, 2010. The first notification, which was entered as Exhibit 2,

provided: 

Walmart can prohibit individuals from entering its property who interfere 

with its business, shoplift, destroy property, or otherwise behave in a 

manner that is unacceptable to Walmart. Walmart has determined you have 

engaged in conduct sufficient to necessitate limiting your access to 

Walmart property. This document constitutes formal notice and warning 

that you are no longer allowed on Walmart property or in any area subject 

to Walmart’s control. This restriction on entry includes, but is not limited 

to, all Walmart retail locations. Should you elect to ignore this notice and 

enter Walmart property, Walmart may contact law enforcement and request 

you be charged with criminal trespass.

The “Acknowledgement of Receipt” section of the first notification provided:

I have read and understand this notice or, in the alternative have had it read 

to me and understand and acknowledge that as of 22 day of January, 

2010[,] I am prohibited from entering Walmart property. I understand this 

notice will remain in effect until Walmart rescinds it.

Mr. Smartt testified that Defendant did not have permission to enter the Walmart 

store or to conceal merchandise in his pants. On cross-examination, Mr. Smartt agreed 

that there was no way he could determine how many times Defendant had entered and 

 

1 We use “Walmart” in this opinion to identify the corporation and stores. The actual corporate 

entity is Walmart, Inc.
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shopped in Walmart stores since January 22, 2010, and that the notification did not 

mention the word “burglary.” He stated that the scrubs that Defendant concealed in his 

pants were valued at $76.60.

John Lombardi, a current employee at the U.T. Commons Walmart, testified that 

he had previously worked at the East Town Walmart, where he observed Defendant 

inside the store on April 7, 2015. When Defendant went outside, Mr. Lombardi 

confronted Defendant, identified who he was, and asked Defendant to come with him. 

Defendant ran and left the scene.

Steven Roberts, a loss prevention associate at the East Town Walmart in 

Knoxville, testified that he encountered Defendant on October 24, 2016. He told 

Defendant that he did not have permission to enter the Walmart store and that he was 

trespassing. Mr. Roberts contacted the Knoxville Police Department (KPD), an officer 

responded, and Defendant was arrested. A “Notification of Restriction from Property”

(“the second notification”) dated October 24, 2016, was entered as Exhibit 1. Mr. 

Roberts’ signature was witnessed by a KPD officer. Defendant, who according to Mr. 

Roberts was handcuffed, did not sign the second notification.

Defendant presented no proof. 

The jury found Defendant guilty, and after a sentencing hearing, the trial court 

determined Defendant was a career offender and sentenced him to twelve years to be 

served on community corrections. The trial court denied Defendant’s motion for new 

trial, and Defendant timely filed his notice of appeal.

ANALYSIS

On appeal, Defendant claims that “burglary is applicable only to entry into 

buildings ‘not open to the public,’” that the trial court failed to instruct the jury on the 

lesser included offense of attempted theft, and that the trial court failed to properly 

instruct the jury as to the elements of burglary. The State argues that the burglary 

conviction was lawful and that the trial court did not commit plain error in charging the 

jury. We agree with the State.

Interpretation of section 39-14-402(a)(3)

Defendant argues that section 39-14-402(a)(3) is ambiguous and should be 

construed to apply only to buildings “not open to the public” under the rule of lenity.

Defendant asserts that the legislature simply omitted “not open to the public” in -
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402(a)(3) because the language was “repetitive” and that in “the context” of -402(a) it 

was implied that the statute only applied to buildings open to the public. 

“The overriding purpose of a court in construing a statute is to ascertain and 

effectuate the legislative intent, without either expanding or contracting the statute’s 

intended scope.” Wallace v. Metro. Gov’t of Nashville, 546 S.W.3d 47, 52-53 (Tenn. 

2018). “In seeking to ascertain legislative intent, we must look to the entire statute in 

order to avoid any forced or subtle construction of the pertinent language.” Lyons v. 

Rasar, 872 S.W.2d 895, 897 (Tenn. 1994). When a statute’s text is unambiguous, “we 

need look no further than the language of the statute itself.” Lee Med., Inc. v. Beecher, 

312 S.W.3d 515, 527 (Tenn. 2010). “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). Courts should “refrain from ‘speculating 

about the significance of provisions which are not included in [a] statute,’ finding it more 

effective to ‘consider the words actually used.’” In re C.K.G., 173 S.W.3d 714, 723 

(Tenn. 2005) (alteration in original) (quoting Fletcher v. State, 951 S.W.2d 378, 382 

(Tenn. 1997)). “[W]here the legislature includes particular language in one section of a 

statute but omits it in another section of the same act, it is generally presumed that the 

legislature acted purposefully in the subject included or excluded.” State v. Loden, 920 

S.W.2d 261, 265 (Tenn. Crim. App. 1995); State v. Pope, 427 S.W.3d 363, 368 (Tenn. 

2013). Issues of statutory construction are questions of law, and our review for questions 

of law is de novo. Seals v. H & F, Inc., 301 S.W.3d 237, 242 (Tenn. 2010).

In United States v. Harriss, 347 U.S. 612, 617, (1954), the United States Supreme 

Court characterized the fair notice principle as follows:

The constitutional requirement of definiteness is violated by a criminal 

statute that fails to give a person of ordinary intelligence fair notice that his 

contemplated conduct is forbidden by the statute. The underlying principle 

is that no man shall be held criminally responsible for conduct which he 

could not reasonably understand to be proscribed.

A criminal statute “must give fair warning of the conduct that it makes a crime[.]” 

Bouie v. City of Columbia, 378 U.S. 347, 350-51 (1964). The doctrine of fair warning is 

closely linked to the doctrine of vagueness. “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) (alteration in original) (quoting Harriss, 347 U.S. at 617). 
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The Tennessee Supreme Court, in a case involving a statute proscribing gambling 

devices, stated the following about fair warning: 

A statute may be void for vagueness if it is not “sufficiently precise to put 

an individual on notice of prohibited activities.” A criminal statute must be 

construed according to the fair import of its terms when determining if it is 

vague. Due process requires that a statute provide “fair warning” and 

prohibits holding an individual criminally liable for conduct that a person 

of common intelligence would not have reasonably understood to be 

proscribed. The fair warning requirement, however, does not demand 

absolute precision in the drafting of criminal statutes. . . . In fact, it 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.” 

State v. Burkhart, 58 S.W.3d 694, 697-98 (Tenn. 2001) (internal citation omitted).

The rule of lenity is related to the doctrine of vagueness and the principle of fair 

warning. “The rule of lenity is ‘rooted in fundamental principles of due process which 

mandate that no individual be forced to speculate, at peril of indictment, whether his or 

her conduct is prohibited.’” State v. Hawkins, 406 S.W.3d 121, 137-138 (Tenn. 2013) 

(quoting State v. Marshall, 319 S.W.3d 558, 563 (Tenn. 2010)). Where there is 

ambiguity in a statute, the rule of lenity requires the ambiguity to be resolved in favor of 

the defendant. State v. Smith, 436 S.W.3d 751, 768 (Tenn. 2014). The rule of lenity

“reflects not merely a convenient maxim of statutory construction” but is based on 

“fundamental principles of due process[.]” Dunn v. United States, 442 U.S. 100, 112

(1979).

In 1989, the Tennessee General Assembly enacted “comprehensive penal and 

sentencing reform legislation . . . as proposed by the Tennessee Sentencing Commission.”

State v. Cummings, 868 S.W.2d 661, 665 (Tenn. Crim. App. 1992). New criminal 

statutes governing “offenses against property” were codified in Chapter 14 of Title 39. 

See Tenn. Code Ann. §§ 39-14-101 through -702. The crime of burglary was codified at 

Tennessee Code Annotated section 39-14-402. See 1989 Pub. Acts c, 591 §1. The 

statute was amended in 1990, in pertinent part, by omitting the word “habitation” from 

subsections -402(a)(1),(2), and (3), and from subsection -402(c). See 1990 Pub. Acts, c.

1030, § 22. In 1995, the 1990 version of subsection -402(a) was deleted in its entirety 

and a new subsection -402(a) was enacted. See 1995 Pub. Acts, c. 496, § 1. Since its 

enactment in 1995, subsection -402(a) has not been amended.

Tennessee Code Annotated section 39-14-402(a) provides: 
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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.

Tenn. Code Ann. § 39-14-402(a)(1)-(3) (2017) (emphasis added). “Effective consent” 

means “assent in fact, whether express or apparent, including assent by one legally 

authorized to act for another.” Tenn. Code Ann. § 39-11-106(a)(9) (2017).

We will begin with the presumption that the legislature acted purposefully when it 

included the phrase “not open to the public” in subsection -402(a)(1) and did not include

the same phrase in subsection -402(a)(3) and determine whether Defendant has overcome 

this presumption. See Loden, 920 S.W.2d at 265. 

The State argues that there was a practical reason for the legislature to expressly

limit the type of “building” in subsection -402(a)(1) to one “not open to the public” but 

not limit the type of “building” in subsection -402(a)(3) in the same way. A defendant

must have the intent to commit a felony, theft, or assault at the time the defendant enters

a building to be guilty of burglary under subsections 402(a)(1). In burglary cases 

requiring the State to prove intent to commit a felony, theft, or assault at the time of 

entry, intent generally must be proven by circumstantial evidence, such as the manner of 

entry. See Bollin v. State, 486 S.W.2d 293, 296 (Tenn. Crim. App. 1972) (inferring intent

from the fact that the doors to the building locked and a window broken with the glass on 

the inside of the building); Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973) (in the 

absence of an acceptable excuse, a jury can infer intent to commit theft based on illegal 

entry into a residence or a building in which there is property which is the subject of 

larceny). The State posits that the reason the legislature excluded “not open to the 

public” from -402(a)(3) was to alleviate the obvious evidentiary problem of proving 
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intent to commit a felony, theft, or assault at the time a person enters a building open to 

the public.

Defendant’s argument that the legislature “simply omit[ted] repetitive language[,]”

from -402(a)(3) is not persuasive and falls far short of overcoming the presumption that 

the legislature acted purposefully by including “not open to the public” in -402(a)(1) and 

excluding “not open to the public” in -402(a)(3). We hold that the legislature acted 

purposefully by omitting “not open to the public” from subsection (a)(3). This holding is 

consistent with three recent opinions of this court. See State v. Abbie Leann Welch, No. 

E2018-00240-CCA-R3-CD, 2019 WL 323826, at *3 (Tenn. Crim. App. Jan. 23, 2019), 

perm. app. granted (Tenn. May 17, 2019); State v. Jason Kane Ivey, No. E2017-02278-

CCA-R3-CD, 2018 WL 5279375, at *1 (Tenn. Crim. App. Oct. 23, 2018), perm. app. 

filed; State v. Nikia Bowens, No. E2017-02075-CCA-R3-CD, 2018 WL5279374 at *7 

(Tenn. Crim. App. Oct. 23, 2018) perm app. filed. 

Defendant’s argument that Tennessee Code Annotated section 39-14-402(a)(3) is 

ambiguous and should be construed to apply only to buildings “not open to the public” 

under the rule of lenity is also not persuasive. In Jason Kane Ivey and Nikia Bowens, this 

court determined that -402(a)(3) is not ambiguous. Jason Kane Ivey, 2018 WL 5279375

at *1 Nikia Bowens, 2018 WL5279374 at *7. In Abbie Leann Welch, Jason Kane Ivey

and Nikia Bowens, this court also determined that section 39-14-402(a)(3) is not vague 

and provides fair warning to people of common intelligence that, if after receiving notice 

that the owner of a building revokes the effective consent for the person to enter the 

building, the person enters the building and, once inside, commits or attempts to commit 

a felony, theft or assault, the person can be charged with burglary. Abbie Leann Welch, 

2019 WL 323826 at *1; Jason Kane Ivey, 2018 WL 5279375 at * 1; Nikia Bowens, 2018 

WL5279374 at *7. Only one opinion of this court has interpreted -402(a)(3) to apply 

only to buildings not open to the public and that opinion was vacated on procedural 

grounds by our supreme court. See State v. Danielle Chandria Jensen, No. M2016-

01553-CCA-R10-CD, 2017 WL 3671093, at *10 (Tenn. Crim. App. Aug. 25, 2017), 

appeal granted, judgment vacated (Tenn. Dec. 8, 2017).2

Defendant also argues that, under the State’s interpretation of the burglary statute, 

individuals can be convicted of a Class E felony under the serial shoplifter statute, 

 

2 We note that one of the judges who joined in this court’s opinion in Danielle Chandria Jensen

authored the opinion in Abbie Leann Welch, the second judge who joined in Danielle Chandria Jensen

joins in this decision, and the authoring judge in Danielle Chandria Jensen wrote a separate dissenting 

opinion in Abbie Leann Welch. The Rule 11 application in Abbie Leann Welch has been granted, and the 

case is pending before the supreme court.
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Tennessee Code Annotated section 39-14-146(c), or of a Class D felony under -402(a)(3) 

of the burglary statute for the same conduct. 

Section 39-14-146(c) states: 

(c) Notwithstanding 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.

Tenn. Code Ann. § 39-14-146(c) (2017).

Defendant notes that section 39-14-146(c) was amended in 2016 to increase the 

punishment for serial shoplifters and argues that the legislative history of the amendment 

does not suggest that the legislature was aware of the State’s prosecution for burglary at 

stores such as Walmart.3 Defendant’s legislative history argument is not cogent and goes 

against the rule of statutory construction “that the General Assembly is aware of its own 

prior enactments.” Lee Med., Inc., 312 S.W.3d at 527. We therefore presume that the 

legislature was aware of Tennessee Code Annotated section 39-14-402(a)(3) at the time it 

amended Tennessee Code Annotated section 39-14-146(c) to increase the punishment for 

serial shoplifters. We conclude that the burglary statute and section 39-14-146(c) 

prohibit different criminal offenses. The two offenses have different elements and the 

two statutes punish different wrongs. Defendant has failed to show that the legislature’s 

intent in enacting the serial shoplifting statute was to repeal subsection 39-14-402(a)(3) 

by implication. See Mowery v. State, 352 S.W. 2d 435, 438 (Tenn. 1961) (quoting State 

v. Lewis, 278 S.W.2d 81, 82 (Tenn. 1955)) (“Two statutes prohibiting the same wrong 

and prescribing different degrees of punishment cannot exist at same time.”). As this 

court recently stated, “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.” Abbie Leann Welch, 2019 WL 323826, at 

*4. We agree with this court’s holding in Abbie Leann Welch that “there is no conflict 

between the repeat shoplifting statute and the burglary statute.” Id. In any event, section 

39-14-146(c) became effective on July 1, 2017, after the Defendant was charged with 

burglary and does not apply to this case.

We hold that Tennessee Code Annotated section 39-14-402(a)(3) is not ambiguous 

or vague, and provides fair warning to individuals who enter a building without the 

 

3 Tennessee Code Annotated section 39-14-146(c) did not become effective until July 1, 2017, 

over two months after Defendant was charged with burglary. See 2017 Pub. Acts. c. 184 §§ 1, 2.
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owner’s effective consent and commit a felony, theft, or assault. We also hold that 

Tennessee Code Annotated section 39-14-402(a)(3) is applicable to both buildings open 

to the public and buildings not open to the public. 

Sufficiency of the evidence

Defendant argues that there was insufficient evidence to prove that Walmart was 

not open to the public. He states that “it was not disputed that Walmart was in fact open 

for business at the time of [his] entry.” 

Our standard of review for a sufficiency of the evidence challenge 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 (1979) (emphasis in original); see also Tenn. R. 

App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence 

are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This

court will not reweigh the evidence. Id. Our standard of review “is the same whether the 

conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331 

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 

2009)) (internal quotation marks omitted).

A guilty verdict removes the presumption of innocence, replacing it with a 

presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914 

(Tenn. 1982). The defendant bears the burden of proving why the evidence was 

insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at 

914. On appeal, the “State must be afforded the strongest legitimate view of the evidence 

and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221 

S.W.3d 514, 521 (Tenn. 2007). 

As we have stated previously in this opinion, a person commits burglary when he 

“[e]nters a building and commits or attempts to commit a felony, theft or assault” 

“without the effective consent of the property owner[.]” Tenn. Code Ann. § 39-14-

402(a)(3) (2017). “A person commits theft of property if, with 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(a). “Effective 

consent” is defined as “assent in fact, whether express or apparent, including assent by 

one legally authorized to act for another.” Tenn. Code Ann. § 39-11-106(a)(9) (2017).

We have previously concluded that the word “building” in this subsection of the 

burglary statute should not be interpreted to mean “a building not open to the public.” 

Thus, the State was not required to establish beyond a reasonable doubt that Walmart was 
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not open to the public. In any event, the evidence admitted at trial showed that Defendant 

had received two notices from Walmart that he was prohibited from entering any 

Walmart property. Additionally, Mr. Smartt observed Defendant select five pairs of

scrubs, conceal them in his pants, and proceed to the exit. Mr. Smartt also testified that 

the scrubs that Defendant concealed in his pants were valued at $76.60. Thus, we 

conclude that the evidence introduced at trial was sufficient for a rational juror to have 

determined that Defendant entered Walmart and committed a theft. Defendant is not 

entitled to relief on this ground.

Jury Instructions

Defendant “has a right to a correct and complete charge of the law so that each 

issue of fact raised by the evidence will be submitted to the jury on proper instructions.” 

State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001). “An instruction should be considered 

prejudicially erroneous only if the jury charge, when read as a whole, fails to fairly 

submit the legal issues or misleads the jury as to the applicable law.” State v. Faulkner, 

154 S.W.3d 48, 58 (Tenn. 2005). 

Lesser Included Offense

Defendant claims that the trial court committed plain error by failing to instruct 

the jury on the lesser included offense of attempted theft. Defendant failed to make a 

written request for a jury instruction on attempted theft as a lesser included offense of 

burglary and failed to raise the issue in his motion for new trial. Therefore, Defendant 

waived the issue. See State v. Martin, 505 S.W.3d 492, 503 (Tenn. 2016); State v. 

Stevenson, No. W2011-02053-CCA-R3-CD, 2013 WL 587313, at *10 (Tenn. Crim. App. 

Feb. 13, 2013). However, Defendant’s waiver does not preclude our review of the issue 

under the plain error doctrine. State v. Fayne, 451 S.W.3d 362, 371 (Tenn. 2014). 

Plain error relief is “limited to errors that had an unfair prejudicial impact which 

undermined the fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626, 

642 (Tenn. Crim. App. 1994). In order to be granted relief under plain error, five criteria 

must be met: (1) the record must clearly establish what occurred in the trial court; (2) a 

clear and unequivocal rule of law must have been breached; (3) a substantial right of the 

accused must have been adversely affected; (4) the accused did not waive the issue for 

tactical reasons; and (5) consideration of the error is “necessary to do substantial justice.” 

Adkisson, 899 S.W.2d at 640-41; see also State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 

2000) (Tennessee Supreme Court formally adopting the Adkisson standard for plain error 

relief). When it is clear from the record that at least one of the factors cannot be 

established, this court need not consider the remaining factors. Smith, 24 S.W.3d at 283. 
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The defendant bears the burden of persuasion to show that he is entitled to plain error 

relief. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).

When addressing issues related to failure to charge lesser included offenses, 

appellate courts consider three questions: “(1) whether the offense is a lesser included 

offense; (2) whether the evidence supports a lesser included offense instruction; and (3) 

whether the failure to give the instruction is harmless error.” Id. (citing State v. Allen, 69 

S.W.3d 181, 187 (Tenn. 2002)). 

Pursuant to Tennessee Code Annotated section 40-18-110(f)(1), an offense is a 

lesser included offense if “[a]ll of its statutory elements are included within the statutory 

elements of the offense charged[.]” Tenn. Code Ann. § 40-18-110(f)(1) (2017). Section

40-18-110 further provides, in pertinent part:

(b) In the absence of a written request from a party specifically identifying 

the particular lesser included offense or offenses on which a jury instruction 

is sought, the trial judge may charge the jury on any lesser included offense 

or offenses, but no party shall be entitled to any lesser included offense 

charge.

Tenn. Code Ann. § 40-18-110(b) (2017).

Based on the indictment and the facts proven at trial, we determine that attempted 

theft was a lesser included offense of burglary indicted under Tennessee Code Annotated 

section 39-14-402(a)(3).4 It would have been impossible for the State to have proven 

Defendant guilty of burglary without proving Defendant attempted to commit theft. For 

the same reason, criminal trespass is also a lesser included offense. 

However, Defendant’s cross-examination of the State’s witnesses and arguments 

to the jury focused on the criminal trespass element of burglary, not the attempt to 

commit theft element for which there was overwhelming evidence. As such, there were 

advantages to an “all or nothing” instruction where only burglary was charged to the jury.

Defendant has failed to show that he did not waive the issue for tactical reasons.

 

4 Theft of property can be a Class A misdemeanor or a Class E, D, C, B, or A felony depending 

on the value of the property taken. See Tenn. Code Ann. §§ 39-14-103 and 39-14-105(a)(1)-(6) (2017). 

Obviously, Class C, B, and A felony thefts would not be lesser included offenses of Class D felony 

burglary. The same is true if the offense committed or attempted to be committed after entering a 

building without the owner’s effective consent is a felony or assault. 
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Effective Consent

Defendant claims that the trial court committed plain error because it did not 

specify whether “effective consent” related to entry into the building or to the theft. The 

State argues that the issue is waived because Defendant failed to object to the instruction, 

and that even if not waived, Defendant cannot prevail on plain error. We agree with the 

State.

The trial court used Tennessee Pattern Jury Instruction 14.01[Part C] to craft his 

instructions for burglary indicted under -402(a)(3) and 11.01 to craft his instruction for

the theft element of burglary. The trial court instructed the jury:

For you to find the defendant guilty of [burglary], the state must have 

proven beyond a reasonable doubt the existence of the following essential 

elements: 

that the defendant entered a building other than a habitation; and

(2) that the defendant attempted to commit Theft;

The elements of Theft are:

(A) that the defendant knowingly obtained or exercised 

control over property owned by Walmart; and

(B) that the defendant did not have the owner’s 

effective consent; and

(C) that the defendant intended to deprive the owner of 

the property. 

 And

(3) that the defendant acted without the effective consent of the 

owner; and

(4) that the defendant acted either intentionally, knowingly, or 

recklessly.

The trial court instructed the jury using the pattern definitions for the terms 

“Habitation,” “Occupied,” “Owner,” “Enter,” “Effective Consent,” and “Knowing.”

The trial court correctly instructed the jury that ‘“[e]ffective consent” means 

assent in fact, whether express or apparent, including assent by one legally authorized to 

act for another.”

5

This definition of effective consent is included in T.P.I. 14.01 for 

burglary and in T.P.I. 11.01 for theft of property. 

 

5 The trial court also instructed the language from the pattern instructions describing when 

consent is not effective.
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Although the Defendant failed to object to the charge, he did raise the issue in his 

motion for new trial. “An erroneous or inaccurate jury charge, as opposed to an 

incomplete jury charge, may be raised for the first time in a motion for a new trial and is 

not waived by the failure to make a contemporaneous objection.” Id. We determine that 

the jury charge on effective consent was at worst incomplete, not erroneous, and 

therefore the issue is waived by Defendant’s failure to make a contemporaneous 

objection. Waiver notwithstanding, we determine that Defendant is not entitled to plain 

error relief. 

Viewing the jury instructions in its entirety, we determine that the instructions 

fairly submitted the issue concerning effective consent to the jury for determination. 

Steve Smartt, the Walmart asset protection associate, testified that Defendant did not 

have permission to enter the Walmart store and did not have permission to conceal 

merchandise down his pants. Based on the evidence presented at trial, we determine that 

the instructions were clear enough for the jury to determine that Defendant did not have 

consent to enter the Walmart store or to steal Walmart’s property. 

Failure to Define Attempt

Defendant claims the trial court erred in failing to instruct the jury on the 

definition of attempt. Although Defendant did not object to the jury instructions, he did 

raise the issue in his motion for new trial, so we elect to review the issue for plain error. 

As previously stated, Defendant “has a right to a correct and complete charge of the law 

so that each issue of fact raised by the evidence will be submitted to the jury on proper 

instructions.” Farner, 66 S.W.3d at 204. “An instruction should be considered 

prejudicially erroneous only if the jury charge, when read as a whole, fails to fairly 

submit the legal issues or misleads the jury as to the applicable law.” Faulkner, 154 

S.W.3d 48. Although the trial court should have defined “attempt” for the attempt to 

commit theft element of burglary, Defendant has not shown that a substantial right of his

was adversely affected, that he did not waive the issue for tactical reasons; or that

consideration of the error is “necessary to do substantial justice.” The evidence was 

unrebutted that Defendant stuffed five pairs of scrubs down his pants and attempted to 

leave the Walmart store. Because the evidence that Defendant attempted to steal the 

scrubs was overwhelming, there was little advantage from a tactical standpoint to

objecting to the instruction. Defendant has not shown that his rights were adversely 

affected, and substantial justice does not demand that this court grant relief for plain 

error.
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Failure to Instruct the Definitions of Intentionally and Recklessly

Defendant claims the trial court erred in failing to instruct the jury on the 

definition of intentionally and recklessly. Again, Defendant failed to object to the jury 

instructions, so the issue is waived. Waiver notwithstanding, we conclude that the trial 

court erred in failing to instruct the jury on the definition of intentionally and recklessly. 

However, we also conclude that consideration of this error is not necessary to do 

substantial justice. See Adkisson, 899 S.W.2d at 640-41. The proof was overwhelming 

that Defendant concealed the scrubs in his pants and attempted to leave Walmart. Any

instructional error in failing to define intentionally or recklessly “was not constitutional in 

nature” and was harmless based on the overwhelming evidence that Defendant 

knowingly concealed the merchandise. Faulkner, 154 S.W.3d at 60-61.

CONCLUSION

We affirm the judgment of conviction. 

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE