### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs M

ay 8, 2001

STATE OF TENNESSEE v. GEORGE REDD

Appeal from the Criminal Court for Shelby County No. 99-11458 Joseph B. Dailey, Judge

No. W2000-01620-CCA-R3-CD - Filed August 9, 2001

Following a jury trial, the Defendant, George Redd, was convicted of burglary. He was sentenced as a career offender to twelve years incarceration . In this appeal as of right, the Defe

ndant asserts that the evidence presented at trial was insufficient to support his conviction and that the trial court erred by failing to instruct the jury on the lesser included offenses of burglary. We hold that the evidence was sufficient

to support the Defendant’s conviction but that the trial court erred by failing
to instruct the jury on the lesser included offenses of burglary. Because we conclude that the error was harmless bey

ond a reasonable

doubt, we affirm t

he judgment of the t

rial court.

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

D AV ID H. W ELLES , J., delivered the opinion of the court, in which A LAN E. G LENN , J., and L.T. L AFFERTY , S R .J., joined.

John Finklea, Murray, Kentucky, for the appellant, George Redd.

Paul G. Summers, Attorne y General and Re

porter; J. Ross Dye

r, Assistant Att

orn ey General; William L. Gibbons, District Attorney General; and Dan Byer, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

At trial, Henry Lee Underwood testified that on May 12, 1999, he was working as a security officer responsible for patrolling several businesses in a Memphis neighborhood. One such business

was Albert’s Market

. Mr. Underwood stated that while on patrol, he saw two men walking down the street in front of Albert’s Market. Mr. Underwood thought that the two men were acting “suspicious,” so he turned around to observe them. However, when he turned around, the men had disappeared. Mr. Underwood believed that for the men to have disappeared in that short length of time, they had to have either gone inside or on top of the building.-2-

Because of this activity, Mr. Underwood called the police on his cellular

telephone. He sa

id that the police arrived within thr ee t o seven minutes after his phone call. While waiting for the police, Mr. Underwood watched the building to ensure that no one left. Once the police arrived, Mr. Underwood

showed them how to get on top of the roof. He described the building, w hi ch was a “stand-alone” building, about twelve feet tall, with a shorter storage shed attached to one side. The storage shed was

only about eight fe

et tall, and a per

son could gain acc

ess to the roof

by climbing

on top of the storage shed and then climbing on top of the roof. Mr. Underwood also d e scribed a hole in the roof thr

ough which acce

ss could be gained

to the inside of the

market.

Mr. Underwood testified that the police took two men into custody that night. He identified the Defendant as one

of the two men arrested at Albert’s Market. Mr. Underwood further testified that a bottle of mouthwash and a cup of soup were recovere d from the two men; Mr. Underwood compared the items to the types of

items on the store shelves and concluded that the items matched those sold at the store.

MillieStrong testified that she was the owner of Albert’s Market, which was a supermarket and deli. She closed the store in October of 1997, but she left the merchandise inside because she had planned to reopen the store. On May 12, 1999, she received a call to come to the store. When she arrived, she unlo

cked the door and

let the police insid

e. Ms. Strong testif

ied that the p olice showed her some items that had been taken from the two men they had ar rested, and Ms. Strong identified those items as being items like she had on the shel ves in the store. She

said that she did
not have stickers or other identifying marks on the merchandise indicating that it came from Albert’s Market.

Officer Richard Strouser of

the Memphis Police Department was t he first police of

ficer to arrive on the scene. He testified that as he drove in front of the store, he looked through the window and observed a black male inside the store. Officer Strouser advised “dispatch” that someone was inside the sto re, and then when Officer Strouser again looked inside, the man was gone. Officer Strouser waited in front of

the store until th

e ot her officers arrived. Later, when someone arrived witha key to the st ore, Officer Strouser searched the inside of the store with his police dog. He found no one inside at that time.

Officer Patrick Twilley also responded to the scene that night. He testified that upon arrival, he and the other officers set up a perimeter around the building so that no one could leave. He and Officer Oliver then went up on the roof. Officer Twilley testified that they gained access to the roof by way of a storage shed which was attached to the building. He explained that there were cra tes and boxes by the shed, which was about eight feet tall, and the officers were able to climb on the
crates and boxes and then climb on top of the shed. The roof of the building was then an additional five feet from the top of the shed, but the officers were

able to climb it

as well. Once on top of the roof, the officers discovered a hole in the roof leading to the inside of the store. While searching the roof, Officer Twilley observed a pair of shoes sticking out of a stripped-out air-cond iti oning unit. Upon further investigation, Officer Twilley discovered a person hiding in the air-conditioner. Officer Twilley took the person into custody and subsequently found an unopenedthree and a half-3-

ounce bottle of Scope mout hwash in the person’s possession. Officer Oliver found another person

on top of the roof and took that person into cus t ody. Officer Twilley was present when the other person was searched, and he testified that a can of beef stew was rec overed from that person.

Officer James Oliver searched the roof with Officer Twilley. He testified that he found the Defendant

hiding on the roof. He identified the Defendant in court as the person whom h e found that night. Officer Oliver testified that the Defendant was laying face-down in the corner of t

he wall around the roo f. He said t hat it appeared as though the Defendant was trying to make himself as small as possible. Officer Oliver too k the Defend ant into custody and subsequently found an unopened can of stew in

the Defendant’ s possession. Offic er Oliver showed

the item to

Ms. Strong, who said that it was like items which she had sold in the store.

SUFFICIENCY OF THE EV IDENCE The Defendant first challenges the sufficiency of the convicting evidence. Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a

reasonable doubt.” Evidence is sufficient if, after reviewing 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 reasonabl e doubt. See Jackson v. Virgini a , 443 U.S. 307, 319 (1979); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a convic ted criminal defendant bears the burden of

showing that the evidence was insufficient. See McBee v. State
, 372 S.W.2d 173, 176 (Tenn. 196 3); see also State v. Buggs , 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans , 838 S.W.2d 1 85, 19 1 (Tenn. 1992); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence, an appe

llate court must af

ford the State “th

e strongest leg

itimate view o f the evi dence as well as all reasonable and legitimate inferences that may be drawn therefrom.” Tuggle , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “reweigh or re-evaluate the

evidence” in the record below. Evans , 838 S.W.2d at 191; see also Buggs
, 995 S.W.2d at 1 05. Likewise, should the reviewing court find particular conflicts in the trial
tes tim ony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle
, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the t ri er of fact, not th

e appellate cour

ts. See State v. Morris , 24 S.W.3d 788, 795 (Tenn . 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

A person commits

the offense of burg

lary “who,

without the effec

tive consent of the

property

owner . . . [e]nters a building other than a habitation (or any portion thereof) not open to the public, withintent to commit a felony, theft or assault.” Tenn. Code Ann. § 39-14-402(a)(1). The indictment in this case specifically charged that the Defe ndant and his co-defendant entered Albert’s Supermarket

with the intent to commit a theft. Additionally, the jury was instructed on criminal

res pon sib ili ty, which provides that “[a] person is criminally responsible for an offense committed-4-

by the conduct of an

other if . . . [a]cting

with intent to

promote or assist the offe

nse, or to benefit

in the proceeds or results of the offense, the person solicits, directs, aids, or attempt s to aid anoth er person to commit the offense.” Id. § 39-11-402.

The evidence in this case established that two men were seen by Mr. Underwood in front of Albert’s Market. The men quickly disappeared, so Mr.Underwood called the police and watched the market to ensure that nobody left. The police arrived within three to seven minutes and established a perimeter around the building so that nobody could escape. One

officer saw a black male inside the market. The police then found the Defendant and another black

male hiding on the roof o f the market. Each was in possession of an item that was similar to other items sold in the market. There was a hole in the roof throug

h which access to

the market c o uld be gained. Based

on this evidence, we conclude that a rational jury could have found beyond a r easonable doubt that the Defendant

either entered

Albert’s Market with the intent to commit a theft or that he was criminally

responsible for the conduct of his co-defendant who entered Al bert’s Market with the intent to commit theft. Accordingly, we hold that the evidence was suf ficient to support the conviction. See State v. Lemacks , 996 S.W.2d 166, 168 (Tenn. 1999) (holding that “jury instruction and general verdict satisfied the due process requiremen t of jury unani mity even thou gh the appellee could have been convicted . . . either based upon his own commission of the offense or by criminal responsibility for [another’s] commission of the offense”).

LESSER INCLUDED OFFENSES The Defendant next argues that the trial court erred by fa iling to instructthe jury on lesser included offenses of burglary

. Specifically, the Defendant argues that the trial cour t should have instructed the jur

y on attempte

d burglary

, facilitation of b

urglary, and criminal tres

pass.

In State v. Burns , 6 S.W.3d 453 (Tenn. 1999), our supreme court adopted a new three-part
test for determining w

hether an offen

se is a lesser included offense. See id. at 466-67. Under the Burns test, an offense is a lesser included offense if: (a) all of its statutory elemen ts are inclu ded within the statutory elements of the offense charged; or (b) it fails to meet

the defi nition in part (a) o nly in the respect

that it contains a statutory element or elements establishing (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less serious harm or risk of harm to the same person, property or public interest;

or (c) it consists of (1) facilitation of the offense charged or of an offense th at otherwise meets the definition of lesser-included offense in part (a) or (b); or (2) an attempt to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or (3) solicitation to

commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b).-5-

Id. Under part (c) of this test, attempted burglary and facilitation of burglary are clearly l esser included offenses of burg lary. We also con

clude that crimina

l trespass is a less

er included offe

nse under part (b) of this test.

A person commits

the offense

of criminal trespass “who, knowing the person does not have the owner’s effective consent to do so, enters or remains on property, or a portion thereof.” Tenn. Code Ann. § 39-14-405(b). Thus, the elements of criminal trespass are (1) the defendant enters or remains on property; (2) the defenda nt does not have the owner’s effective consent; and (3) the defendant knows that he or she does no t have the ow ner’s effective consent. The elements of burglary appli cable to this case are (1) the defendant enters a building not open to the public or remains concealed in a building; (2) the defendant does not have the owner’s effective consent; and (3) the defendant has the intent to commit a felony, theft or assault. See id. § 39-14-402(a). Because criminal trespasscontains the additional element that the defendant must know that he or she does
not have the owner’s effective consent to enter or remain and because criminal trespass criminalizes the intrusion of the defendant onto property, as opposed to a building, it

does not meet the statutory elements test

outlined in part (a) of Burns

. See Burns , 6 S.W.3d at 466. However, it does meet part (b) of the Burns test because the additional elements establish a different mental state

indicating a lesser kind of culpability

and establish a le

ss serious harm o

r risk of har m to the same person, property, or pub li c interest. See id. at 466-67. Although the defendant must know that he or she does not have the owner’s effective consent to enter or remain on proper

ty, there is

no requirement that the defendant intend to commit a felony, theft, or assault while on the property; thus, the different mental state for the entry or remaining indicates a les ser kind of culpability for the defendant. See State v. Ely , __ S.W.3d __, __ (Tenn. 2001) (explaining that the requirement for a different mental state does not

necessarily mean a less culpable mental state, but merely a lesser kind of culpability overall). Also, the element of criminal trespass that the defendant must en ter or remain

on property, rather than a

building, is a less serious harm or risk or harm to the same property owner because there is no requirement that the defendant actually enter a building on the property.

Having found that attempted burglary, facilitation of burglary, and criminal trespass are lesser included offenses of burglary, we must now determine whether it was error to not instruct the jury on those offenses. A trial co urt is und er the mandatory duty to instruct the jury on a lesser included offense, even if such an instruction is not requested, when “any evidence exists that reasonable

minds could

accept as to the l

esser-included

offense” and wh

en that evidence

is “legally sufficient to support a conviction for the lesser-included offense.” Burns , 6 S.W.3d at 469; see also Tenn. Code Ann. § 40-18-110(a). In determining whether any evidence exists that reasonable minds could accept as to the lesser offense, the courts “must view the evidence liberally in the lig ht most favorable to the existence of the lesser-included offense without making any judgments on the credibility

of such evidence.” Burns , 6 S.W.2d at 469. Whether the trial judge erred in this case by failing to charge the les ser included off enses appears to

us to be a close ca

ll. However, viewing the evidence in the light most favo rable to the exist

ence of the lesser included offenses and without making any judgments concerning the credibility of such evidence, we conclude that it was error not to allow the jury to c

onsider the Defe

ndant’s guilt of the

lesser included o

ffenses.-6-

A person commits criminal attempt when that person, ac ting with t he culpability required for the offense, “[a]cts with intent to complete a course of a ction or cause a

result that would constitute the offense, under the circumstances surrounding the conduct as the person believes them
to be, and the conduct constitutes a substantial step toward the commission of the offense.” Tenn. Code Ann. § 39-12-101(

a)(3). The statu

te also provides th

at it is not a defens

e to pr osecution for criminal attempt that the of fense was in fac

t committe d. See id. § 39-12-101(c). The proof established that two black males were seen outside Albert’s Market, that one black male was seen inside Albert’s Market, and that the Defenda nt and another black male were found on the roof of Albert’s Market in

possession of items

similar to those on the shelves of Albert’s Market. There was

a h ole in the roof through which access to the inside of the market could be gained. From thi s evidence, the jury could have determined that the Defendant climbed onto the roof of Albert’s Market with the intent to enter Albert’s Market and commit a theft. The Defendant’s presence on the roof would constitu

te a substantial ste

p towards the commi

ssio n of the off

ense of burglary, whether or not he then entered the building or was criminally responsible

for the conduct of the other black male who entere d the buil ding. “Whether sufficient evidence supports a conviction of the charged offense does not

affect the tria

l court’s duty to

instruct on the lesser offe nse if evidence a

lso supports a finding of guilt on the lesser offense.” Burns , 6 S.W.3d at 472. Thus, we believe the trial court erred by failing to instruct the jury on attempted burglary.

“A person is criminally responsible for the facilitation of a felony if, knowing that

another intends to commit a specifi c felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantia l assistance in the commission of the felony.” Id. § 39-11-403(a). Again, the proof established that two black males were found on the roof of Albert’s Mark

et, but only one bla

ck male was seen inside the market. The proof of the intent of the two males was established by purely circumstantialevidence. From the evidence presented,

a reasonable jury could have concluded that the Defenda

nt at least furnished substantial assistance
to the other male, who intended to commit the offense of burglary at Albert’s Market

. Thus, we also believe the trial court erred by failing to instruct the jury on facilitation of burglary.

Finally, a person c

ommits the offense

of criminal tresp

ass “who, knowing the person does
not have the owner’s effective consent to do so, enters or remains on property, or a portion thereof.” Id. § 39-14-405(a). The proof clearly established that the Defendant entered the property on which Albert’s Market was located. The Defendant’s attempt to concea l himself on the roof

of a privately owned building indicates

his knowledge that

he did not have the

owner’s effec

tive consent to

be on the property. Thus, a

reasonable jury could have concluded that the Defendant knowingly entered th e property of Albert’s Market without the owner’s effective consent, and the evidence woul d support such a conclusion. We believe it was error not to instruct the jury on the offense of criminal trespass.

Because of our finding that it was error for the trial court to not instruct the jury on the lesser included offenses of burglary, we must no w deter mine whether the trial court’s error requires reversal of the conviction and a remand for a new trial. In the recent case of State v. Ely , __ S.W.3d

__(Tenn. 2001), our supreme cour t held that the cons

titutional right to tr

ial by jury “is

violated when-7-

the jury is not permitted to consider all offenses supported by the evidence.” Id. at __. The court thus maintained that the

proper inquiry fo

r appellate cour

ts in determining wh

ether the failur

e to instruct the jury on a les ser inc luded offense is r eversible erro

r is “whether the

error is harmles s beyond a reasonable doubt.” Id. To find the error to be harmless, therefore , we must be able t o conclude beyond a reasonable doubt that the jury in this case would not have found the Defendant guilty of one of the lesser included offenses, rather than the principal offense, if the jury had been given the opportun

ity to consider the

lesser included o

ffenses.

The Tennessee Crimin

al Pattern Jury In

structions provide

that the follo

wing gui dance be given to a jury concerning the meaning of a “reasonable doubt”:

Reasonable

doubt is that doubt en

gendered by an in

vestigation of all the p roof in the case and an inability, after such investigation, to let the mind rest

easily as to the certainty of guilt. R easonable doubt does not mean a captious, possible or imaginary doubt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certain ty is required, an

d this certainty is required as to every proposition of proof requisite to constitute the offense.

Tennessee Pattern Jury Instruction - Criminal No. 2.03.

With this jury instruction as our guide, after e xamining all of the p

roof contained in

this record, we find that

our minds rest easily on the conclusion that the jury would have convicted the Defendant

of burglary eve

n had the jury bee

n given the opportu

nity to consider the lesser included offenses of burglary. While we acknowledge that there is some possibility that a jury might have convicted the Defendant of a lesser in

cluded offen se had the jury been given the opportunity, we
note that a reasonable doubt does not mean a doubt that may ar ise from a possi

bility. Hardin v. State , 355 S.W.2d 105, 108 (Tenn. 1962). Absolute certainty on our part is not required. Id.

The evidence in this c

ase, both direct and circumstantial, strongly points to the Defendant’s guilt of burglary. Evidence which suggests that the Defendant’s guilt was only of a lesser included offense to burglary is

very slight. Based on our review of the entire record in this case, we conclude that the trial court’s failure to instruct on the lesser included offenses was harmless beyond a reasonable doub

t.

Accordingly, the judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE