### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs A ugust 20, 2002
JAMES DARREL L HORN v. STATE O F TENNESSEE
Appeal from the Criminal Court for Sullivan County No. C44,651 R. Jerry Beck, Judge

No. E2 001-0 2616- CCA-R3 -PC December 17, 2002

The petitione

r, James Da

rrell Ho rn, appe als the Sullivan Coun ty Cr iminal Cour

t’s d enial of pos tconvicti on relie f. In

his post-conviction petition, the petitioner challenged his jury convictions on
more than 30 ag grava

ted burg lary

counts and nearly

as many theft counts. As a

result of his many convicti ons, the petitioner is serving an effective 90-year sen

tence in the Department of Correction. On direct appeal, his convictions and s entence s were a ffirmed by t his court

. See State v. James D. Horn , No. 03C01-9712-CR-00537 (Tenn. Crim. App., Knoxville, Jul. 20, 1999), perm. app. denied (Tenn. 2000). The petitioner asserted tha t his prev ious appe

llate cou nsel was ineffective bec ause she did not raise on direct appeal whether the trial court (1) erred

in not suppressing the petitioner’s pretrial statements and (2) in no t sup press ing ph ysical ev idenc e seiz ed dur ing a warrantless search of his reside

nce. He also cla imed that h

is trial and appellate counsel were ineffective because they didnot properly cha

llen ge the sufficiency

of the evidence on three or four spec ific counts of the indictmen ts. After an evidentiary

hearing, the

trial court entered a very

thorough order

denying postconvicti on relie f. Upon ou r revie w, we af

firm. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d.

J AMES C URWOOD W IT T , J R ., J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and R OBER T W. W EDEMEYER , J., joined. Larry S. Weddington, Bristol, Tennessee, for the Appellant, James Darrell Horn.

Paul G. Summers, Attorney Gene ral & Repor

ter; Ang ele M. Greg ory , Assistan t Attorne y General ; H. Greeley

Wells, Jr., District Attorney Gene ral; and Teresa Murray

Smith and James F. Goodwin, Assistant District Attorneys Gener al, for the Appellee, State of Tennessee.
OPINION

Acco rding to th e recor

ds of the h

earing s on the pe

titioner’ s pretria

l motions to suppress , which were admitted as evidence in the post-conviction e videntiary hea

ring, he moved prior to his 1997 t

rial to sup

press his custodia

l pretria l stateme nts and evide

nce of st olen prop erty-2-

discovered

in his residence during a warra ntless search. The motions emanated from the following activities of law enforcement personnel.

On May 31, 1995, Carter County Sheriff’ s officers, armed with a fugitive warrant for the arrest of

the petitioner, arrived at the petitioner’s residence on Anderson Ro ad in Ca rt er Co un ty. After they rec eived no response to their knocking on the door, a car pulled into the driveway . It was driven by a woman, Linda McClain, w

ho was ac companie d by

a child. M cClain

stated that she and the petitioner, whom she knew by an alias name, liv ed in the h ouse. McC laindid not know whether the petitioner was in the house at the time. Sh

e signe d a form to

consent t o the off icers’ entering and searching the house, and she provided a key . The office rs found n o one inside the house but discovered

it to be filled with “merchandise,” including weapons, jew elry, musical instruments, and electro nic equipment and supplies. The officers noticed that some of the items they saw matched property de scriptions from Carter County burg lary re ports.
After an extensive chase and manhunt carried out during the night of May

31-June 1 , 1995, Carter County offic ers apprehended the petitioner in the early morning hours of

June 1

. They took him to the jail and read his Miranda rights to him from a written form. See Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 160 2 ( 1966). The petitioner, who was alert and sober, sig ned a written waiver of his rights. La ter, at about 1 1:00 a.m. o n June 1, a Wa shington County officer who
was investig ating bu

rglar ies in that county came to th

e Carter County jail to interview the petitioner. He als o read tothe petitioner the Miranda rights from a written form, and the petitioner signe d anot her waiver. The petit

ioner did not ask fo

r an atto rney and ga ve a stat ement a bout hi s involvement in a series of Washington County bur glaries.

After hearing from the C arter County

Sheriff’s office that a man who may have

been responsi ble for burglaries in

Sullivan Cou

nty was in cu stody , Sullivan Co unty of ficers a rrived in Carter County and went first to the reside nce on Anderson Road, which remained under the control of the Carter County off

icers. Inside the house, the Sullivan County office rs identif ied vari ous items t hat matched items on burglary reports from Sullivan County. Afterw ard, the Sullivan Coun t y officers went to the jail to interview the petitione r. At app roximately

4:00 p.m., o ne of the se officers admin istered an impromptu, but incomplete, Miranda warning to the petitioner, during or aft e r which the petitioner

said that he did not need to have his rights explained again and that he “didn’t know how many

times that

day ” the rig

hts had be en read

to him. The petitioner was cooperative and didnot ask to

consult with an attorney. With the petitioner’s consent and the Carter County Sheriff’s approva l, the Sullivan County officers took the petitioner to Sullivan County. They drove around, and the petiti oner poin

ted out 22 r

esidenc es in Sulliva

n County th at h e admi tted b urglar izin g. Afterward, the officers took the petitioner to theSu ll iv an Co un ty J ai l, wh er e t he y Mirandized him at approxima

tely 10:30 p.m. and obtained

a writte n stateme nt in which

the petiti oner disc

ussed in detail the Sulliva

n County burgla ries and thefts. On June 2, 1995, the petitioner made an initial court appearance in Carter County , and counsel was appointed to represent him in Carter County

.

In the Sulliva

n County suppress ion hear

ings, the sta te relied upon the following evidence to support

its claim th at Linda McClain effectively consente d to the May 31-June 1 search-3-

of the Anderson Road house. The officers testified that she a cknowledged that she and her children had lived in the house since early April, 1995. Utility records established tha t the el ectric service to the house was initiated by McClain on April 4, and the electric service agreeme nt remained in her
name through the end of May . McClain had a key to the hous e, which

she ga ve to the Ca

rter Coun ty officers after signing the consent-to-sea rch form. Inside the house, of ficers discovered

women’s and children’s clothing, as well as children’s toy s. On June 1, w hile Sullivan County officers wer e present at the house, McClain came with a pick-up truck to claim her belong ings, which included children’s bicycles in the y ardand a cat which Ms. McClain retrieved from under the house. The petitioner admitted to one of the Sullivan County officers tha t McClain lived in the hous e, and in a statement given to police onJune 16, 1995, the petitioner admitted that he and McClain had moved into the house on April 1.

The petitioner claimedin his suppression hearings that McClain lived elsewhere on May 31, 1995 . The Carter County of ficer had written on the top of McClain’s consent-to-sear ch form an apartment

addressin Kings port. He said that M cClain pr

ovided thi s addres s, which s he said
was her mothe

r’s apa rtme nt, as a place where she could be reached. T he Sullivan County officer testified at the suppression hearing that, on June 1, McClain

gave h im the King sport add

ress as the addressshe was “moving to.” Kingsport office rs took a statement from McClain on June 2, 1995, in which sh

e listed th e Kings port apa

rtment asher addr

ess.
After conducting the f

irst suppr

ession he aring, the trial court su p pressed the statemen ts given to the Sullivan County office rs ; however, af

ter allowing the state to re-open the suppress io n hearing and after hearingadditiona l evidenc e about Miranda warnings which were g iven to the petitioner prior to the Sullivan County officer s’ arrival at the Carter

County Jail on June 1, the trial court vacated its ruling and denied the motion to suppress the pretria l statements. The court held that the petiti oner’s Miranda interests were satisfied by the prior warnings.

The trial cou

rt also de nied the m

otion to sup

press t h e evidence of Sull

ivan Count

y stolen property be

ing discovered at the Anderson Road house. The court found that McClain gave
a valid, ef fective consent t o search the house on May 31 and that she did not

move to the Kingsport apartment until June 1.

The petitioner’s trial counsel, who was a member of the Public Defe nder’s staff, testified at

the post-conviction evidentiary he aring that he preserved both suppression issues in the petitioner’s motion for

new tria l. He thou ght that

the two sup

press i on issues would be important appella te issues. The Public De fender’s office contracte d through the Public Defender’s Confere nce for an attorney to ha

ndle the direct appeal. Trial counsel did not confer with appellate counsel but didnote the suppression issues on his referral form. Trial counsel lea rnedfrom rea

ding this court’s opinion in the petitioner’s direct appeal that appellate counsel did not raise the suppr ession issu es.
The petitioner’s counsel on direct appeal testified that she received and reviewed the referral form that trial counsel had furnished and that shewas fully aware of the sup

pression issues. She reviewed the appellate record, w hich included the te chnical record of filings in the trial court-4-

clerk’s office

and the e xtensive tr

anscrip t of evide

nce fro m the tria

l. Upon re search

ing the a pplicabl e law, appellate counsel determined that the “case la w w as entirely ag ainst Mr. Horn’s position [on the suppression of pretrial statements].” She testified, “I think the judg e did rule c orrectly.” Likewise, on the consent search issue, she determined afte r doing legal resear

ch t hat she “did not have any g ood faith basis for attacking [the ruling deny ing supp ression] a t that point

because the case law was all against us and the reason [] was very sound and cogent in those cases that [she] looked at.” She testified that, based upon her i n dependent judgment, she did not include the suppression issues in the appeal, raising instead the issues of sufficie ncy of the ev idence a nd the impr

opriety of the sentences. She admitted that she was compensated for her contract appel late ser

vic es at a monthly rate of $1,500 and was not compensated by the hour. She also a

cknowle dged th at she did not discuss the appeal with the petitioner’s trial counsel.

During the he aring, post-conviction counsel argued that, with respect to ag gravated burglary counts fourteen and fifteen in the charg ing instrument, the state proved only burglary at trial; the bu ildi ngs burglarized were not inhabited at the time. Compare Tenn. Code Ann. § 39-14- 402(a)(1) (1997) (proscribing burglar y as the unlawful entry

into “a building other thana habitation” withintent to c ommi t a fe lo ny, theft or assault) with id. § 39-14-403(a) (1997) (proscribing aggravated

burglary as burglary

of a habitation as defined in §§ 39-14 -401 and

39-14-40 2). Thus, post-conviction co unse l argue d that tria l and appe

llate cou nsel wer e ineff ective in not raisin g this issue in the motion for new trial and on dir ect appe al. Post-c onviction counsel a lso argued that, with respect to a burglary

and theft involving a victim named Willis Faulkner, the serial numbers of the victim’s stolen pistol did not match the pistol recovered by of ficers an d attributed to the Faulkner theft. Counsel again posited that trial counsel was ineffective in failing to raise this issue.

Fo llowing the evide

ntiary hearing , the post- convicti on court e ntered a n exte nsiv e order that containedfindings of fact and conclusions of law. The court held t hat it s pret rial r ulin gs on the suppression issues were correct and that appe llate counsel was not ineffective in deciding not to raise the issues on ap peal. The c ourt rule d that the proof on c ounts four

teen and fifteen (case number S38,125) showed that the burglarized buildings met the applicable statutory def ini tion of habitation, and t hat, accordingly , the petitioner was properly convicted of aggra

vated burglary

on those counts. As to the Faulkner pistol issue, the court found tha

t the petit ioner did not estab lish a discrepancy

in the serial numbers. Accordingly , the court denied post-conviction relief.

Petitioners seeking post-conviction relief must prove their allegations by "clear and convincing evidence." Tenn. Code Ann. § 40-30-210(f ) (1997). "Evidence is clear and convincing when there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence." Hicks v. State , 983 S .W.2 d 240, 245 (T enn. C rim. A pp. 19 98) (ci ting Hodges v . S.C. Toof & Co. , 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Furthermore, an appellate cour t is bound by
a trial cou rt's findings of

fact unl ess the facts of record prepondera te against those findings. Id. at 245.

When seeking post-conviction relief on the basis of ineffective assistance of counsel,
a petitioner must establ ish that the services rendered or the advice given fell below "the rang e of-5-

competence demande d of attor ney s in criminal cas es." Baxter v . Rose , 523 S.W.2d 930, 936 (Tenn. 1975). He or she must also show that there is a reasonable probability that butfor counsel's deficient performance, the result of the proceeding would have been diff erent. Strickland v. Washington , 466 U.S. 668, 694, 1 04 S. Ct. 2052 , 2067 (19 84); Goad v. St ate , 938 S.W .2d 363, 370 (Tenn. 1996). Bo th of the ab ove prongs must be established for a petitioner to be entitled to relief

. Goad , 938 S.W.2d at 370.

Ge ne ra ll y, a petition er may not critic iz e a sound, though unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). However, this deference to the tactical decisions of counse l only applies to those choices made after

adequate preparation for the ca se. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

These “principles apply a s well when determining the effectiven ess of appella

te counsel.” Campbell v. State , 904 S.W.2d 594, 596 (Tenn. 1995). In re viewin g the services of appella te counsel, our supre

me court has “re iterate [d] that ther

e is no constitutional requirement that
an attorne y a rgue e very issue on a

ppeal. Generally, the dete rmination of which issues to present on appeal is a mat ter which addresses itself to the professional judgment and sound discr etion of appella te counsel. ” Id. at 596-97 (citations omitted). When the selection of issues to be raised on appeal can be char

acterized as tact

ical or st rateg ic choic es, appellate counsel should not be “second guessed,” as long as such choic es are based upon competent prepara tion. Id. at 597.

With these governing principles in mind, we now ex amine the issue of ineffective assistanc e of coun sel with r espect t o the follo wing cl aims.

I. Miranda Issue.

Th e post-con

viction c ourt dete

rmined tha

t, despite the Sulliva

n County office rs’ failure to administer

a complete Miranda warning on theafternoon of June 1, 1995, the petitioner’s subsequent

statemen ts relati ve to the Sullivan Coun ty c ases we

re admiss ible because the Miranda warni ngs administered on the morning of June 1 by Carter Co

unty office rs and ag ain by Washington County officers sufficed to satisfy the Miranda require

ments as to

the admiss ibility

of statem

ents later receiv ed by

the Sulliva

n County office rs. I n essenc e, the pos t- conv iction court held that the petitioner’s appel late coun sel did not deficiently perf orm when she exercised her professional judgment not to raise the issue of Miranda -poor statements on appeal.

The record supports the lower court’s determination. This court hasprevious ly held that, in situations similar to the present case, a prior Miranda warning and commensurate wa ive r may pave the way to admit la

ter state ments th at were not immediately prece ded by a re peated Miranda warning. See State v. J.B. McCord, No. 03C01-9403-CR-00110, slip op. at 12-13 (Tenn. Crim. App., Kno xville, Dec . 3, 1997) (defen dant’s second stat ement ad missible, d

espite of ficers’ failure to repeat earlier Miranda warnings, when record show ed no pol ice misconduct and that defendant effectively

waivedhis Miranda rights in giving the second statement when he “ was aware1 In the evi dentiary hear ing, the pet iti oner clai med that t he officers pro mised that, if he co ope rated , his multip le senten ces could be ser ved concurrent ly. The offi cers deni ed thi s all egati on. The post- convict ion court found no poli ce trickery o r misco nduc t.
-6- of the na ture of h is constitu

tional rig hts and had an adequate understanding of their importance ”); State v. Pride , 667 S.W.2d 102, 104 (Tenn. Crim. App. 1983) (“Our law recognizes that an accused neednot be given repeated Miranda warni ngs once he has been advised of his rights and ha s waived them.”); State v. Hicks , 629 S.W.2d 908, 910 (Tenn. Crim. App. 1981) (defendant’s statement given three hours after Miranda warning s held to be admissible ); Reav es v. Stat e , 523 S.W.2d 218, 220 (Tenn. Crim. App. 1975) (“ When a def

endant ha s been fu

lly a dvised of his Miranda rights, it is not
necessa ry to repea t them on the following day before interrogation.”) (e mphasis added).

In the present case, there was no evidenc e of police misconduct , and in th e suppression hearings, thetrial court found no misc onduct. 1 Although the Sullivan County officer s didnot comple

tely advise the petition

er of his Miranda rights o n the aft e rnoon of June 1, thei

r imperfect rendition served

to remind the petitioner of his rights; the reminder evoked a decla ration by the petitioner that he had been fully , if notexcessively, advised of his rights. Had this issue been raisedon direct appeal, this court wo u ld have been constrained to hold that the petitioner’s statemen ts given to the Sullivan Co un ty o fficers were admissible as a result of the pe titioner receiving fully effective Miranda warning s and for mally waiving his Miranda rights – not

once, but twice – a few hours earlier.

Ac co rd in gl y, it is clear to us that the p etitioner ’s appellate cou nsel act ed well within the ambit of her professional judgment – and did not deficiently perform – when

she omitte d the Miranda issue from the direct appeal.

II . Search Issue.
Now, we examine the claim that appellate counsel ineffectively assisted the petition e r when she omitted the issue of the search of the Anderson Road ho use from the a ppeal. The postconviction court found that Linda McClain was a r esident of the property

where the search was conducted

and held that under the facts surrounding L indaMcClain’s consent

to the search of the house, the search was reasonable.

We agree. A person

with common authority over a r esidence may

validly consent t o the search of that re sidence , effectively supply ing rea sonableness to the offic ers’ wa rrantle ss entry and search. See McG

ee v. Sta te , 451 S.W.2d 709, 712 (Tenn. Crim. App. 1969). The United States Supreme Court has said,

The authority which justifies the third-par ty consent does no t res t upon the law of proper

ty. . . but rests rather on mutual use of the propert y by p ersons g enerally h aving jo int acce ss or cont rol for mo st purposes , so that it is reasonable to recognize that any of the co-2 The pro of of M cCla in’s com mon autho rity over the resid ence in this Washington Count y case w as somewhat

different from that re lied up on b y th e st ate in t he pre sent

case . Al thou gh t he owne r of the rent ed hous e on Ander son Road testified ab out the joint o ccup ancy o f the petiti oner a nd McClain, McClain hers elf tes ti fi ed at the suppr essi on hearing that she had no key to the house and c ould only en ter thro ugh an unloc ked windo w. Id. , slip op. at 5-6. She a lso testi fied that

she received mail at the Kings port apart ment, whi ch sh e had r ente d a few weeks prior to st aying wit h the petition er. Id. The Carter Count y off icers who execut ed the se arch and who t esti fied at the suppressi on hearing in the prese nt case app arently testified in a sub stantially simila r man ner in the W ashing ton C ounty su ppr ession hearin g. -7- inhabita nts has the right

to permit the inspection in his own right and that the others have assumed the risk that oneof their number might permit the common area to be searched.

United States v. Matlock, 415 U.S. 164, 172 n.7, 94 S. Ct. 988, 99 3 n.7 (197 4). The s tatemay fulfill its burden of proving the

reasonableness of a warrantless se arch by showing either that a pe rson with
common authority consented to the se arch or that the circumstances war ranted a person of “reaso nable

caution” to believ e that t he consenting party

in fact had common authority over the premises

. State v. Willia

m Donald E

llis , No. M-19 99-783-C CA-R3-CD, slip op. at 8 (Tenn. Cr

im. App., Nashville, Oct. 13, 2000) (citi ng Illinois v. Rodriguez , 497 U.S. 177, 188-89, 110 S. Ct. 2793, 2801 (1990)), perm. app. denied (Tenn. 2001).

In fact, the very

search at issue in

the present case has been the subject of a previous adjudication by this court. I n State v. J

ames Darr

ell Horn , No. 03 C01-9 810-CR-00363 (Tenn. Crim. App., Knoxville, Jan. 26, 2000), perm. app. denied (Tenn. 2001), this court reviewed McClain’ s consent a

nd the re asonable

ness of the resulting sea

rch as pa rt of the p etitioner ’s d irec t appeal from

Wa sh in gt on Co un ty convicti ons of ag grava ted burg laries. 2 Id. , slip op. at 2. In that
case we conc luded tha

t the Washington Coun

ty tr ial cour t did not er

r in deny ing the m otion to suppressthe evidence gained throug h the house search. Id. , slip op. at 9. “The evidence,” this court said, “indica

tes that Mc Clain did

have common authority ove r the premises . . . for most purposes such that other co-inhabitants . . . assumed the risk that she might allow the premises to be searche d.” Id. If not conclus ive in the present case, th is ruling in the petiti oner’s Wa shington County case is most persuasive.

Once again the result is that the petitioner’s appellate counsel acted w ithin the a

mbit of her professional judgment when she declined to raise the se arch issue in the direct appeal. Had she done so, th

e appell ate cour

t would have be en constr

ained to affirm t he trial c ourt’s decision to deny suppress ion. Appellate

counsel, therefore, did not render ineffective assistance in this instance.

Before leaving the topic of the hou se search, we note that, in his brief, the petitioner argues that trial counsel w as remissin two insta nces. F irst, he c laims that

trial counsel did no t develop evidence at the suppression hearings that L inda McClain, who was app arently in state custody and did not testif y a t the suppr

ession he arings , had no a

uthority to consent to the search. The petitioner is also aggrieved that trial counsel did not ad vance in the suppression hearings the argument that the officers exceeded the scope of their search, that being to locate the petitioner for-8-

the purpose o f servin g a fug itive war rant. Assuming that these issues were adequately raisedin the post-conviction court, we discern no basis for post-conviction relief.

In the post-conviction hearing, t he pet itioner failed to demonstrate that any further development of McClain’s authority to consen

t to the sear

ch would h ave y

ielded a differe nt result
on the suppression issue. Indeed, this court’s opinion in the petitioner’s Washington County direc t appeal shows tha

t when Mc Clain testi fied in the suppression hearing in that case, she reve aled her
common authority over the pr emises, even though she denied ever having a key

. Thus, the petitioner didnot – and apparently

was not able to – establish that he was prejudiced by trial counsel’s failure to further develop McClain’s co-inhabitant status in his Sullivan County ca se.

In like manner, the evidentiary hearing revealed no pre

judice to the petitioner in that his trial counsel did not raise the issue in the suppression hearing that, in discovering st ol en pr op er ty, the officers exceede d the scop e of thei r search for the petitioner himself. First, we find no sug gestion t hat Mc Clain consented to only a sea rch of limited scope. Second, the proof in the suppression hearings showed that the stolen merchandise wa s stacked and piled everyw here and literally

filled the rooms in the hous e. Under these ci rcumstan ces, we can imag ine no pre judice to the petitioner resulting from counsel’s failure to mount a scope-of -the-search attack.

II I. Pistol Identifica

tion.
Next, we review the claim that trial counsel deficiently performed

when he f

ailed to check the serial number

on a .45 c aliber p istol that w as alleg edly stolen fr om the home

of Willis Faulkner. The petitioner alleged in his post-conviction petition that the serial number of Faulkner’s pis tol did not match the numbers on the .45 discovered in the petitioner’s possession. The pos t

conviction court held that the petitione r failed to establi sh this c laim i n the evidentia ry hear ing. We agree. The petitioner is entitled to no relief on this issue.

IV. Habitation I ssue. The final issue is whether trial and appellate counsel we re ineffective

because they respe ctively

failed to raise the issue whe

ther the defenda nt was guilty

of agg ravate d burgla

ry in counts fourtee

n and fif teen (c ase number S38,125) or guilty of mere burglary . The petitioner alleged in his post-c onviction

petition th at the bui ldings he burgla rized in the se countswere no t u sed as habit at ions at the time of the burglary , defeating the enhancement of the crime to aggrava

ted bu rg la ry. See Tenn. Code Ann. §§ 39-14-402, -403 (1997). The post-conviction court held that the proscriptive statutes do not require that the burglarized structure be used as a habitation to support
an aggr avated burgla

ry con viction. The court further held that the proof at trial established aggravated burg

lary in these c ounts. Burglary is aggravated when the

offender enters a “habitation as def ined in §§ 39-14- 401 and 39-14-402.” See id. § 39-14-4 03. I n pertine nt part, Co de secti on 39-14- 401(1) pr ovides:-9- “Habita tion”:
(A) Me ans a ny s tructure , includin g buildin gs, modu le units, mobile homes, tr ailers, a nd tents, which is designed or adapted for the overnight accommodation of persons; . . . .

Id

. § 39-14-401(1). This court has previously said, “ There is no requirement in this definition that the structur

e be cur rently occupie d to be a habitation.” Theodore Howard v. State , No. 02C01-9806- CR-001 91, slip op. at 6 (Tenn. Crim. App., Jackson, Dec. 29, 1999). Indeed, “based on common unde rsta nding and judicial interpretation, a vacant house is clearly included within our statutory definition of ‘habitation . . . .’” Id. , slip op. a t 8; see also S

tate v. James Ford III

, No. 02C01-9304- CR-00078 (Tenn. Crim. App., Jackson, Aug. 3, 1994).

The petitione

r claims t hat the “ mobile home

on a comme

rcial lot for displa

y” t hat he burgla rized is not a habitation. The post- convicti on court h eld that, althoug

h the proo f in count s fourteenand fifteen was not “detailed,” it showed that the structure burglar ized by the petitioner was designed for the overnight accommodation of persons. We ag ree and disc ern no ineffective assistance of trial or appellate counsel in not specifically raising this issue. Having address ed the iss ues pres ented in this appeal, we affirm the judgment of the post-conviction court.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE